State v. Brady

• Decision Date: 15 October 1981
• Docket Number: No. 59054,59054
• Citation: 406 So.2d 1093
• Parties: STATE of Florida, Petitioner, v. Frank J. BRADY, et al., Respondents.
• Court: Florida Supreme Court

Page 1093

406 So.2d 1093

STATE of Florida, Petitioner, v. Frank J. BRADY, et al., Respondents.

No. 59054.

Supreme Court of Florida.

Oct. 15, 1981.

Rehearing Denied Jan. 8, 1982.

Jim Smith, Atty. Gen. and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.

Robert W. Foley and Philip G. Butler, Jr. of Foley & Colton and Janet W. Freeman, West Palm Beach, for Frank J. Brady.

Steven M. Greenberg of Pertnoy & Greenberg, Miami, for Ronald B. Elliot and Philip M. Eckart.

Joel S. Fass of Colodny & Fass, North Miami, for Hermogenes Manuel.

Alan I. Karten, Miami, for David List.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980)), which expressly and directly conflicts with a prior decision of the District Court of Appeal, First District (Aylin v. State, 362 So.2d 435 (Fla. 1st DCA (1978)). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Respondents, Frank J. Brady, Philip M. Eckard, and Ronald B. Elliot, were arrested and charged with delivery of marijuana in excess of 100 pounds, possession of marijuana in excess of 100 pounds, conspiracy to possess marijuana in excess of 100 pounds, and importation of marijuana. Respondents, David A. List and Hermogenes Manuel were charged with attempted possession of marijuana in excess of 100 pounds.

On the day prior to the arrest, the Martin County Sheriff's Office was given information indicating that one or two airplanes carrying contraband might land at respondent Brady's ranch. The information, relayed to the sheriff's department at approximately 2 p. m. that day, included the call numbers of the two aircraft. That evening, officers took up surveillance of the Brady ranch from the adjoining property, but the planes never arrived and eventually the watch was abandoned. The next day, again around 2 p. m., another tip was received, again indicating that a plane would land in the evening and so law enforcement personnel staked out the property once more. In order to position surveillance groups around the ranch's airfield, deputies were forced to cross a dike, ram through one gate and cut the chain lock on another, cut or cross posted fences, and proceed several hundred yards to their hiding places. When the plane finally landed, the officers had to proceed the remaining few hundred yards to the aircraft in order to definitely ascertain what was going on and then make the arrests and seize the marijuana being transferred.

Asserting that the search and seizure operation was improper because the authorities failed to first obtain a warrant, each respondent filed a motion to suppress the evidence taken. The trial court granted the motions, whereupon petitioner filed a notice of appeal of said order. Petitioner also filed a motion for extension of speedy trial pending appellate proceedings, which was granted.

Shortly after the preceding, respondents List and Manuel filed a motion for speedy trial discharge which the trial court granted. Petitioner appealed the order granting the discharge and said appeal was consolidated with that from the order suppressing the evidence seized. The District Court of Appeal, Fourth District, affirmed the order granting the motion to suppress but reversed the order granting the motion for discharge. Petitioner then invoked the discretionary jurisdiction of this Court to review the district court's decision.

We first consider whether the trial court was correct in granting the motions to suppress. Petitioner contends that under the "open fields doctrine" of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), respondent's Fourth Amendment protections do not extend to activity conducted in "open fields", and therefore that the authorities need not have obtained a warrant in order to conduct a legal search.

In Hester, revenue agents observed from across a field an exchange of moonshine whiskey in front of the defendant's residence. The defendant was arrested and convicted of concealing distilled spirits and on appeal contended that his rights under the Fourth and Fifth Amendments to the United States Constitution were violated by the trial court's refusal to exclude the revenue agents' testimony concerning what had occurred in the field. The United States Supreme Court, in affirming the conviction, ruled that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects' is not extended to the open fields." Id. at 59, 44 S.Ct. at 446.

Petitioner argues that the open fields doctrine remains viable, and that there is no constitutionally protected reasonable expectation of privacy in an open field. Although the Hester opinion has not been overruled, subsequent opinions indicate that the open fields doctrine cannot be used as carte blanche for a warrantless search simply because the location searched is not part of a dwelling or its adjacent curtilage. As the Court later observed in its opinion in Katz v. United States, 389 U.S. 347, 350-52, 88 S.Ct. 507, 510-11, 19 L.Ed.2d 576 (1967):

(T)he correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area."

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

(citations omitted).

In his concurrence in Katz, Justice Harlan suggested the following two-part test for determining whether Fourth Amendment protections are warranted in a particular situation:

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for the most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited.

Id. at 361, 88 S.Ct. at 516.

Under the reasoning of Katz, if the owner or occupier of a field seeks to keep it private and demonstrates an actual intention to do so, and his expectation is one that society is willing to recognize as reasonable, then Fourth Amendment protections extend to activities in that field.

In determining whether the "twofold requirement" for Fourth Amendment protection is met here, we find helpful our opinion in Norman v. State, 379 So.2d 643 (Fla. 1980).

In Norman, a defendant convicted of possessing cannabis contended that evidence introduced at his trial was inadmissible because it had been discovered during an unauthorized search of his farm. The local sheriff, on the basis of information received from a confidential informant, had gone to the defendant's farm, climbed a fence by a locked gate, and walked 250 yards to a barn in which he saw a substance which he identified as marijuana. He then ordered surveillance of the farm to determine who came and left. Several days later a deputy watching the place saw a man in a truck enter through the gate, drive to the barn and later, loaded with hay, drive back to the highway and into a field. The deputy detained the driver of the truck, the defendant, and took him to the sheriff's office where he was placed under arrest.

One of the points raised on appeal in Norman was whether the unauthorized search of the farm violated the defendant's Fourth Amendment rights. The state contended that the sheriff's search of the farm was justified under the open fields doctrine. We disagreed, holding that the defendant's right against unreasonable searches and seizures was violated, and observing as follows:

It seems incontestable that Mr. Norman exhibited a subjective expectation of privacy in the tobacco barn and its contents. He took overt steps to designate his farm and barn as a place not open to the public. The contraband, covered and wrapped in tobacco sheets, was in a closed structure. The farm itself was fenced, and the gate to the fence was kept locked.

The district court's reliance below on the "open fields" doctrine as enunciated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), was misplaced. Hester stands for the unremarkable proposition that the fourth amendment's protection of one's person, house, papers and effects does not extend to the open fields. Whatever the precise parameters of this long-standing but seldom-used doctrine, it certainly does not extend to a warrantless search of a closed structure on fenced property.

Id. at 647 (emphasis added). Our opinion in Norman made it clear that fences and locked gates are evidence of the owner's or possessor's expectation of privacy.

Obviously there are distinctions between the facts in Norman and those in the case sub judice. The former involved a warrantless search of a closed structure, the latter a search in a field. The contraband in Norman was inside the barn and covered with tobacco sheets, while that in the case at hand, at the time of seizure, was being transferred from an airplane to several waiting vehicles. Such distinctions aside, however, the comments in Norman regarding evidence of an expectation of privacy still have relevance here. In Norman, we emphasized that "(t)he farm itself was fenced, and the gate to the fence was kept locked." Later, we reiterated that the barn was "on fenced...