Rook v. State

• Decision Date: 16 May 1997
• Docket Number: No. 58A01-9609-CR-297,58A01-9609-CR-297
• Citation: 679 N.E.2d 997
• Parties: Matthew N. ROOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 997

679 N.E.2d 997

Matthew N. ROOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 58A01-9609-CR-297.

Court of Appeals of Indiana.

May 16, 1997.

Matthew P. Zerbe, Lawrenceburg, for Appellant-Defendant.

Pamela Carter, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

BAKER, Judge.

In this interlocutory appeal, we are presented with the question of whether a police officer's use of binoculars to view the illegal activity of a defendant in an area behind his residence constitutes an impermissible warrantless search. Specifically, appellant-defendant Matthew N. Rook appeals the trial court's denial of his motion to suppress evidence of marijuana seized after a police officer observed him carrying a marijuana plant in his backyard. Rook argues that the police officer's observations constituted an unreasonable search under the United States and Indiana Constitutions and that the subsequent warrantless seizure of the marijuana was improper.

FACTS

At approximately 10:35 p.m. on August 9, 1995, Ohio County Deputy Sheriff Alan Althoff received an anonymous tip that Rook was growing marijuana on his property and that he would be harvesting the marijuana that evening. Deputy Althoff conveyed this information to Deputy Rodney Rimstidt, who indicated that he had received a similar anonymous phone call about Rook two days earlier. As a result, Deputy Althoff proceeded to a wooded area in Springwater Farms approximately one hundred yards away from Rook's residence in order to conduct surveillance. According to Deputy Althoff, Rook's backyard was illuminated by a security light located near a shed "significantly behind" the residence.

Shortly thereafter, Deputy Althoff observed Rook and a companion, Dale Dixon, emerge from a wooded area behind the house carrying a potted plant. With the aid of binoculars, Deputy Althoff identified the plant as marijuana. Rook and Dixon then cut several leaves from the plant and went inside the house. Several minutes later, they returned to the backyard and placed the plant in a truck. Deputy Althoff then approached Rook and Dixon, placed them under arrest and seized the marijuana.

On August 10, 1995, Rook was charged with Growing Marijuana ¹ and Maintaining a Common Nuisance, ² both Class D felonies. On October 3, 1995, Rook filed a motion to suppress the marijuana seized by Deputy Althoff, claiming that Deputy Althoff's conduct constituted an unreasonable search under both the Fourth Amendment to the United States Constitution and Article 1, § 11 of the Indiana Constitution. Alternatively, Rook argued that the subsequent warrantless seizure of the marijuana was not justified by exigent circumstances. Following a hearing, the trial court denied the motion. This interlocutory appeal followed.

DISCUSSION AND DECISION

I. Unreasonable Search

A. Fourth Amendment

We first address whether Deputy Althoff's use of binoculars to view the area behind Rook's residence constituted an impermissible search under the Fourth Amendment to the United States Constitution. Specifically, Rook argues that Deputy Althoff's use of the binoculars to view activities occurring behind his residence, which he defines as the curtilage of his home, was unreasonably intrusive and violative of his reasonable expectation of privacy.

Initially, we note our standard of review. When reviewing the trial court's ruling on the validity of a search, we consider the evidence most favorable to the trial court's ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling. Peterson v. State, 674 N.E.2d 528, 532 (Ind.1996). If the evidence is conflicting, we will consider only the evidence which tends to support the trial court's ruling and will affirm if the ruling is supported by substantial evidence of probative value. Id. at 535.

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." The basic purpose of this constitutional provision is to safeguard the privacy and security of individuals against arbitrary and unreasonable government intrusions. State v. Thomas, 642 N.E.2d 240, 243 (Ind.Ct.App.1994), trans. denied. In order to implicate the Fourth Amendment's protection, however, the challenged conduct and observations of the government official must constitute a "search" in the constitutional sense. As our supreme court recently stated, "the term 'search' implies prying into hidden places for that which is concealed." Moran v. State, 644 N.E.2d 536, 540 (Ind.1994) (quoting Lindsey v. State, 246 Ind. 431, 204 N.E.2d 357, 362 (1965)).

To determine whether a search has occurred under federal law, we apply the two-part test first enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). First, we examine whether the individual has exhibited an actual, subjective expectation of privacy in the area searched and, second, whether society is willing to recognize that expectation as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. at 516-17; Thomas, 642 N.E.2d at 243.

Rook initially contends that Deputy Althoff's observations constituted an impermissible search because the observed activities occurred in the curtilage of his home. Historically, the curtilage of the home, the area immediately surrounding the residence, has been considered within the purview of the Fourth Amendment and protected from unreasonable searches and seizures. The United States Supreme Court has explained the protection afforded the curtilage as one of "family and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most high." California v. Ciraolo, 476 U.S. 207, 212-13, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986). However, the mere fact that the observed activity occurred within the curtilage of the individual's home does not in itself bar police observation. Id. at 213, 106 S.Ct. at 1812-13. As the Court stated in Katz, "[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. at 511. Similarly, it is settled law in Indiana that objects observed in open view by a police officer who is lawfully in a position to have such a view are not products of a search. Smith v. State, 505 N.E.2d 81, 83 (Ind.Ct.App.1987).

Here, the record reveals that Deputy Althoff first observed the marijuana when Rook emerged from the woods behind his home carrying the plant, an area clearly not linked to the intimacy of the home. The record also reveals that the area behind Rook's home was open, unfenced and illuminated by a light that was positioned "significantly behind" his house. Finally, the evidence presented by the State indicates that Rook openly carried the marijuana at all times, making it visible to anyone in the area. Therefore, given Rook's behavior and the nature of the land surrounding his home, we cannot conclude that Rook had a subjective or reasonable expectation of privacy in this area. See Ciraolo, 476 U.S. at 213-14, 106 S.Ct. at 1812-13 (no reasonable expectation of privacy from aerial observation of fenced-in backyard within curtilage of home given that area was visible to any member of the flying public).

Similarly, we cannot conclude that Deputy Althoff's use of binocular transformed his observations into an unreasonable search. Although we have not specifically addressed the use of binoculars as a surveillance aid to law enforcement officers in Indiana, ³ we have held that the use of visual aids and other sense-enhancing techniques do not change a law enforcement officer's observations into a search. See, e.g., Marsh v. State, 477 N.E.2d 877, 879 (Ind.1985) (police officers use of flashlight to observe items inside car did not transform observation into a search); State v. Watkins, 515 N.E.2d 1152, 1154-55 (Ind.Ct.App.1987) (smell testing by trained dog did not constitute search). Further, numerous other jurisdictions have approved of the use of low-powered sight enhancement devices by law enforcement officials. See, e.g., Colorado v. Oynes, 920 P.2d 880, 883 (Colo.Ct.App.1996) (police officer's view of interior of defendant's home with binoculars from nearby field not a search), cert. denied; Oregon v. Carter, 101 Or.App. 281, 790 P.2d 1152, 1155 (1990) (police officer's use of binoculars to view plant inside window of home from adjoining land not a search), rev'd on other grounds, 316 Or. 6, 848 P.2d 599 (1993); Wisconsin v. Peck, 143 Wis.2d 624, 422 N.W.2d 160, 166-67 (Ct.App.1988) (use of binoculars to view garden plots near defendant's rural home not a search); U.S. v. Allen, 633 F.2d 1282, 1290-91 (9th Cir.1980) (use of aids to the senses such as binoculars does not convert unobjectionable surveillance into prohibited search).

In determining that the use of binoculars was not overly intrusive of an individual's privacy in Carter, the Oregon Court of Appeals noted that the use of moderate power binoculars to observe more clearly something that is already subject to scrutiny with the naked eye did not infringe upon an individual's reasonable expectation of privacy. Specifically, the court stated: "[t]he use of binoculars is not an unexpected occurrence in today's society. They are used, not only by law enforcement officers, but by citizens for hunting, spotting game, bird watching and other ordinary, lawful purposes." Carter, 790 P.2d at 1154. Similarly, the Colorado Court of Appeals in Oynes noted that a defendant could not reasonably believe that "no person with binoculars would ever view his brightly illuminated window from the surrounding fields" absent some evidence that the binoculars were uncommonly powerful. Oynes, 920 P.2d at 883.

Although not binding upon this court...