State v. Harris, 18294

• Decision Date: 27 September 1983
• Docket Number: No. 18294,18294
• Citation: 671 P.2d 175
• Parties: STATE of Utah, Plaintiff and Respondent, v. Wayne Neil HARRIS, Defendant and Appellant.
• Court: Utah Supreme Court

Page 175

671 P.2d 175

STATE of Utah, Plaintiff and Respondent, v. Wayne Neil HARRIS, Defendant and Appellant.

No. 18294.

Supreme Court of Utah.

Sept. 27, 1983.

Wayne Neil Harris, pro se.

H. Don Sharp, Ogden, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

Defendant Harris appeals his conviction for Production of a Controlled Substance, a third degree felony under U.C.A., 1953, § 58-37-8(1)(a)(i), on the ground that incriminating evidence against him was obtained in an illegal search by police officers in violation of the Fourth Amendment to the United States Constitution.

On June 27, 1981, Dee Knight, Harris's neighbor, called the mayor of their small farming community in Weber County, Utah, to report his observation of marijuana plants growing in Harris's garden. The mayor requested the Weber County Sheriff's Office to investigate the complaint, and Deputy Anderson and Utah Highway Patrol Trooper Jackson responded to the call.

Harris's property was separated from Knight's by a 20 foot wide driveway that ran the length of Harris's fenced-in front yard, and continued to the backyard through a gate. The home sat approximately 55 feet back from the front fence and 35 feet to the side of the driveway. In the backyard Harris had a horse barn, an equipment shed, a dog run and a hay barn in a fenced-in horse pasture. Viewed from the front of the property, marijuana plants, roughly 2 1/2 to 3 feet high, were growing behind three rows of tomato and bell pepper plants which were in the rear of two rows of corn standing roughly chest high at that time of year. Mexican firebush had been planted parallel with the front of the hay barn and the hay barn obstructed the view from Knight's property.

When the officers arrived to investigate, Anderson met Knight at the front of his property. Knight pointed out the direction of the suspected marijuana as well as the area where Harris was then hoeing his garden. Anderson drove his car into Harris's driveway to about even with the front of the house. The gate into the backyard was open and one of Harris's trucks was parked in the rear of the driveway in front of the hay barn. Anderson stated that he walked into the backyard where Harris met him between the hay barn and the dog run, some 35 feet from where the marijuana plants were growing. Harris asked "Can I help you?" Anderson stated that he was there to check out a complaint, and asked whether it was true that Harris was growing marijuana. Harris, according to Anderson, replied "yes," he was. When Anderson asked if he could see the plants, Harris requested both men to leave his property. Anderson at that point told Harris that he could see the marijuana plants from where he was standing. He returned to his car, called Detective Shupe to come, and drove his car further towards the rear of the driveway. According to Shupe who soon arrived, Anderson expressed some concern to him about whether he should get a search warrant or not, but Shupe made the decision to go in without a warrant because, as he stated in his report, "[a] search warrant was not obtained because the plants were visible to the reporting officers, both from the road and from Mr. Knight's yard." Both Shupe and Anderson admitted at trial that they were not able to identify the marijuana plants from those two locations, at a distance of some 175 feet, and that they became visible only after they had penetrated into the area of confrontation.

Anderson, without Harris's permission, took Shupe to show him the marijuana plants. Harris was placed under arrest, handcuffed, and the plants were seized. Two days later, while Harris was being arraigned in court, Shupe and other deputies returned to the residence armed with a search warrant. As Harris lived alone, there was, of course, no response at the front door. The police officers tried all doors and windows, found a basement window ajar, pried open a screen door, gained entrance to the residence by climbing in and executed the search warrant.

The crucial question on appeal, as stated correctly by the State, is whether or not the observations made by the police officers were lawful, and if they were, whether they justified warrantless seizure. We conclude that they were not, and that the seizure was unlawful.

Harris's principal contention is that Anderson's uninvited entry on his property to search for marijuana constituted an unlawful search and seizure. In determining the scope of the constitutional protection we begin our inquiry with the assumption that "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. [Citations omitted.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." [Citations omitted.] Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). Subsequent to the Katz decision much emphasis was given to the twofold requirement advanced in the concurring opinion of Harlan, J. at 389 U.S. 361, 88 S.Ct. 516, 19 L.Ed.2d 588 that the defendant must have a subjective expectation of privacy and that society is prepared to recognize that expectation as reasonable. The plethora of decisions relying on those two factors have been a source of never ending confusion, prompting one commentator to plead that it was time that the "broad diversity of privacy claims must be brought under one hat" and that "bright line" standards are needed. Note, 91 Yale L.J. 313 et seq. (1981). Historically, the right guaranteed under the Fourth Amendment was "a right of personal security against arbitrary intrusions by official power." Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), and that definition emerges most consistently from the varying interpretations by both federal and state courts: "The central purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by the government officials." South Dakota v. Opperman, 428 U.S. 364, 377, 96 S.Ct. 3092, 3101, 49 L.Ed.2d 1000, 1010 (1976), (Powell, J., concurring). See also U.S. v. Dunn, 674 F.2d 1093 (5th Cir.1982). "The considerations of privacy here envisioned are not predicated upon a general constitutional 'right of privacy' but upon a right to be free from certain kinds of governmental intrusions." Wattenburg v. U.S., 388 F.2d 853, 858, n. 6 (9th Cir.1968). As the court in Katz, supra, noted, the "trespass" doctrine once enunciated in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) can no longer be regarded as controlling. What re-emerges, consistent with Katz, is the maxim of Justice Brandeis' Olmstead dissent which foreshadowed the precept that government protects people, not places:

[The makers of our Constitution] conferred, as against the government, the right to be left alone--the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Id. 277 U.S. at 478, 48 S.Ct. at 572, 72 L.Ed. at 956.

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The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.

Id. 277 U.S. at 479, 48 S.Ct. at 573, 72 L.Ed. at 957.

There are of course justifiable intrusions when the right to be let alone must yield to the right of search. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), but as a rule that justification must be sanctioned by a judicial officer and not asserted in the discretion of a government official, because "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 delinated exceptions." Katz, supra, 389 U.S. at 357, 88 S.Ct. at 514, 19 L.Ed.2d at 585. And the burden is on those seeking exemption to show the need. Coolidge, supra. Prior review, as one commentator put it, avoids the familiar shortcomings of hindsight judgment that may, in close cases, lead courts acting after the fact to rule against apparently guilty defendants. Note, 91 Yale L.J., supra. The intervention of a neutral magistrate not only guarantees a lawful search of a suspected offender, but in a larger sense it protects society against the erosion of those cherished rights that are still not taken for granted in many parts of the world. Courts do not enforce these procedural requirements to sanction the activities of one single individual, but to assure all citizens those continuing fundamental rights.

Warrantless searches and seizures have been upheld under the exceptions referred to in Katz, supra. They include consent searches, Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); searches and seizures made in hot pursuit, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); searches and seizures of contraband in areas lawfully accessible to the public, State v. Shreve, Utah, 667 P.2d 590 (1983), seizure of evidence in plain view after lawful intrusion, State v. Romero, Utah, 660 P.2d 715 (1983); searches and seizures incident to lawful arrest based on probable cause under exigent circumstances, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State, in interest of K.K.C., Utah, 636 P.2d 1044 (1981).

In the instant case the State contends that the search falls under several of the "jealously drawn" exceptions which make a search warrant superfluous. It denies that Harris had a justified expectation of...