State v. Fearn

• Decision Date: 11 April 1977
• Docket Number: No. 58730,58730
• Citation: 345 So.2d 468
• Parties: STATE of Louisiana v. David C. FEARN.
• Court: Louisiana Supreme Court

Page 468

345 So.2d 468

STATE of Louisiana v. David C. FEARN.

No. 58730.

Supreme Court of Louisiana.

April 11, 1977.

Rehearing Denied May 13, 1977.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Douglas P. Moreau, Asst. Dist. Atty., for plaintiff-relator.

Stephen K. Peters, Gill, Linsay, Seago & Beckner, Baton Rouge, for defendant-respondent.

DIXON, Justice.

By bill of information defendant David C. Fearn was charged with possession of marijuana in violation of R.S. 40:966(C). On August 24, 1976 defendant filed a motion to suppress the marijuana on the basis that it was unconstitutionally seized without a warrant. After a hearing, conducted on September 9, 1976, the trial judge granted the motion. We granted the State's application for writs to review the correctness of this ruling.

Defendant lives with his parents in Baton Rouge. His parents' property is bounded on the rear by a drainage ditch. Another ditch intersects this drainage canal at approximately a thirty degree angle. This second ditch (approximately eight feet wide) is totally on the Fearn's property and runs generally along the side property line which extends several feet beyond the ditch. On the edge of this ditch on the side nearest defendant's house he had planted twelve marijuana plants. Defendant's neighbor, Mr. Arthur Penton, observed defendant and some other boys near some strange looking plants on occasion and on July 1, 1976 called the East Baton Rouge Parish sheriff's office to report his observations. Five days later, on July 6, 1976, Deputy Pete Humble, responding to a second call by Mr. Penton, went to Mr. Penton's residence to observe the plants to determine if they were, as suspected, marijuana. Deputy Humble testified that he could not determine that the plants were marijuana until he walked closer to the ditch, although he stated that he affirmatively identified the suspect plants before he crossed the property line. Deputy Humble made a call and observed the ditch area until another deputy arrived. The deputies then went to the Fearn residence and arrested defendant. Following the arrest the officers and defendant went back yard and pulled up six marijuana plants about eight inches tall and six plants about thirty inches tall. The police testified that they could have obtained a warrant, but did not.

The question here, as in State v. Nine, 315 So.2d 667 (La.1975), is whether the defendant's justified expectation of privacy under the Fourth Amendment of the United States Constitution and under Article 1, § 5 of the Louisiana Constitution of 1974 was violated by the warrantless seizure. The record reveals that the ditch where defendant was growing the plants was entirely upon the property belonging to defendant's parents, whose property line extended beyond the far side of the ditch. Four to five foot weeds were growing in the ditch; six of the twelve plants, which were less than a foot high, were not visible except upon close inspection. The remaining plants, approximately thirty inches high, although visible among the weeds from the next door neighbor's house, were not identified by the police except from the edge of defendant's property line. The ditch where the plants were located was screened from view of defendant's parents' house by a shed and a fence around a swimming pool. Defendant apparently relied on the high weeds in the ditch (he had planted the marijuana in April) and the distance to the property line to preserve the privacy of his activities. Although this expectation was not fully justified (Mr. Penton testified that he could observe the plants from some distance) it was reasonable. The area of the ditch in which the plants were cultivated apparently could not be seen from the public street. Therefore, though in fact visible, the plants were located in a position on defendant's parents' property which could be reasonably expected to assure defendant's privacy and were not openly displayed to public view.

Since the area of the ditch in which the plants were grown was an area in which defendant had a reasonable expectation of privacy, the protections of the Fourth Amendment against unreasonable searches and seizures are applicable. It is clear that a fundamental constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). See also Coolidge v. New Hampshire, 403 U.S. 443, 454--55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

In brief the State suggested that this search was justifiable as a search incident to an arrest. However, this argument has no merit for, assuming the validity of the arrest, it is clear that the plants were not in defendant's immediate control. E.g. Coolidge v. New Hampshire, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Defendant was arrested as his front door and the plants were located in the back yard, behind a swimming pool fence and some eighty feet from the front door. The officers told defendant why they were there, and required him to accompany them to the plants.

The State further relies on the 'plain view' exception to the prohibition against warrantless searches. In Coolidge v. New Hampshire, supra, the United States Supreme Court set out the elements, rationale and scope of the 'plain view' exception. The conditions necessary for the applicability of the exception are: (1) there must be a Prior justification for an intrusion into a protected area, (2) in the course of which evidence is discovered Inadvertently, and (3) where it is Immediately apparent without close inspection that the items are evidence or contraband. See also State v. Meichel, 290 So.2d 878 (La.1974). Upon analysis of the circumstances of this seizure and the rationale and scope of the 'plain view' exception it is evident that the first and second requisites are not met in this case.

One explanation of the 'plain view' exception is that it complements, rather than subverts, the objective of the Fourth Amendment in precluding searches without warrants unless there is a well-delineated exception. Plain view justifies a seizure only when an intrusion into a protected area has already validly taken place by virtue of a warrant or another exception to the warrant requirement. If an officer has already legally entered a protected area then evidence in open view may be seized because the intrusion upon the defendant's privacy is not substantially increased, whereas the inconvenience and danger of loss would be great if seizure is prevented until a warrant could be secured.

The State argues that there was a prior valid intrusion in this case because the officer had the permission of Mr. Penton to go onto Mr. Penton's property from which the officer viewed the marijuana plants. This argument misses the point. The intrusion into the protected area, the ditch, did not take place until After defendant was arrested. The initial view of the contraband occurred before any valid intrusion into the protected area was made, and at a time when the police could have obtained a warrant. Plain view alone is never enough to justify a warrantless seizure. As the United States Supreme Court noted in Coolidge:

'The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. . . .' 403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584.

Hence, the plain view doctrine does not apply in this case because the exception cannot be used alone to justify a search and seizure.

The other rationale for the 'plain view' exception is that it does not conflict with the other purpose of the Fourth Amendment in preventing general, exploratory searches. The Fourth Amendment recognizes that necessary searches should be as limited as possible. Thus, when a search is made pursuant to a warrant, the warrant should particularly describe the place to be searched and the persons or things to be seized. Likewise, searches made pursuant to some recognized exception have been limited in scope; a search incident to an arrest, justified by the need to protect the arresting officer and prevent destruction of evidence, is limited in scope to those areas near the suspect where he might obtain a weapon or destroy evidence. If the officers are searching pursuant to a prior valid justification for the intrusion, then evidence in open view may be seized because the individual's privacy is not infringed to any greater degree, but the inconvenience of getting a warrant to justify an inadvertent discovery is substantial. However, if officers intend to search for an item, planning to justify its seizure by the 'plain view' exception, then the search will naturally expand to a 'general' search. To restrict the seizure of evidence under this exception to those items 'inadvertently' discovered precludes a general warrantless search, yet does not impose any 'inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as 'per se unreasonable' in the absence of 'exigent circumstances. " Coolidge...