State v. Rickard, 54877
| Decision Date | 30 September 1982 |
| Docket Number | No. 54877,54877 |
| Citation | 420 So.2d 303 |
| Parties | STATE of Florida, Petitioner, v. William M. RICKARD, Respondent. |
| Court | Florida Supreme Court |
Jim Smith, Atty. Gen. and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for petitioner.
Jerry Hill, Public Defender, James R. Wulchak, P. Douglas Brinkmeyer and David A. Davis, Asst. Public Defenders, Tenth Judicial Circuit, Bartow, for respondent.
This cause is here on petition for writ of certiorari supported by certificate of the Second District Court of Appeal that its decision reported as Rickard v. State, 361 So.2d 822 (Fla. 2d DCA 1978), is one which involves a question of great public interest. Art. V, § 3(b)(3), Fla.Const. (1972).
The respondent, defendant at the trial court, William R. Rickard, was arrested after his neighbor, Martin, informed Detective Fitzgerald that he had observed some plants, which he believed to be marijuana, growing in the defendant's backyard. The plants could not be seen from Martin's yard, because defendant had erected a plywood partition next to a storage shed, thereby obstructing the view of his yard on Martin's side. There was also a chain link fence surrounding defendant's yard, but it did not block the view.
Martin took Detective Fitzgerald to a citrus grove behind defendant's yard. About fifty feet away, the detective observed some plants in defendant's yard which, from his experience, he believed to be marijuana. Since defendant was not home, he decided to return the next day to arrest defendant and seize the plants.
The next day, without obtaining a warrant, Detective Fitzgerald returned to the grove with Detective William Page and watched the yard for approximately one hour, hoping to observe defendant in the act of caring for the plants. When defendant did not appear, the two detectives went to his mobile home and arrested him. Defendant asked the detectives if he could get some money from his trousers which were lying on the floor. As defendant reached into the pocket, Detective Page, fearing a concealed weapon, put his hand into the pocket and pulled out a small baggie of marijuana. The detectives then seized the marijuana in defendant's backyard.
Defendant was charged with manufacturing marijuana and felony possession of marijuana. A motion to suppress was denied by the trial court, and defendant pled nolo contendere, reserving his right to appeal the denial of his motion. On appeal, the Second District Court of Appeal upheld the trial court's denial of defendant's motion to suppress the marijuana seized from the trousers pocket as being incident to lawful arrest. However, the court reversed the denial of the motion to suppress the marijuana plants seized from defendant's backyard, citing as its authority Morsman v. State, 360 So.2d 137 (Fla. 2d DCA 1978), cert. disch., 394 So.2d 408 (Fla.1981). The district court certified the following question to this Court:
Where contraband is seen in plain view by police in the defendant's back yard from a point adjacent to the property, may the police seize the contraband without a warrant in the absence of exigent circumstances?
361 So.2d at 825. We answer the question in the negative.
Arguments in this case have shown a marked confusion between plain view per se and the "plain view doctrine" as espoused in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Confusion was dispelled in Ensor v. State, 403 So.2d 349, 352 (Fla.1981), when we said:
The term "plain view" has been misunderstood and misapplied because courts have made it applicable to three distinct factual situations. This has resulted in confusion of the elements of the "plain view doctrine." To eliminate this confusion, we believe it appropriate to distinguish the true "plain view doctrine" as established in Coolidge v. New Hampshire 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), from other situations where officers observe contraband.
The first factual situation we identify as a "prior valid intrusion." In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It is this situation for which the United States Supreme Court created the "plain view doctrine" in Coolidge and held that an officer could constitutionally seize the contraband in "plain view" from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.
We identify the second factual situation as a "non-intrusion." This situation occurs when both the officer and the contraband are in a non-constitutionally protected area. Because no protected area is involved, the resulting seizure has no fourth amendment ramifications, and, while the contraband could be defined as in "plain view," it should not be so labeled to prevent any confusion with the Coolidge "plain view doctrine."
The third situation concerns a "pre-intrusion." Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term "plain view" should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non-Coolidge situations as a legally permissive "open view."
Here the officer was located outside of a constitutionally protected area and looking inside that area. The officer did not obtain a warrant nor did he have any exception to the warrant requirement. The seizure without a warrant was improper and the motion to suppress the plants in the backyard should be granted.
This case is distinguishable from Morsman v. State because an illegal search preceded the seizure in Morsman, whereas here there was no prior search. In Morsman, police found marijuana only after illegally entering Morsman's backyard. There was no evidence that the contraband was visible from outside the backyard, so the warrantless search and seizure were illegal. We are now presented a different situation. Police were in an orange grove where they had a legal right to be when they observed marijuana growing in respondent's backyard. The plants were open to view only fifty feet away; therefore, no search occurred.
Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (1978), is pertinent because of certain factual similarities. There, also, the marijuana was open to the view of police officers who were where they had a legal right to be. In Lightfoot and the current case, marijuana was growing in a backyard surrounded by a chain link fence which did not obstruct visibility. Police officers in both cases were answering neighborhood complaints, and neighbors directed them to unobstructed views of marijuana plants. The vantage point in Lightfoot was a neighbor's yard; in this case it was the orange grove behind defendant's mobile home.
The court in Lightfoot held that the defendant showed no expectation of privacy because he took no steps to conceal the marijuana plants from people who could see into the backyard. In the present case, defendant blocked the view of his next door neighbor with a shed and a plywood partition. It appears from the record that this was his only adjacent neighbor. However, the backyard and marijuana plants were completely open to view from the privately owned orange grove behind the yard. Since the owners were "up north," people may not have been in the grove often, but the police had been asked to keep an eye on the grove for trespassers. Therefore, defendant's backyard was open to view by police possibly grove workers, and meandering neighbors.
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