State v. Flynn

McCORMICK, Justice

(dissenting).

I am unable to agree with the holding that the fourth amendment was not violated when the police officers listened to defendant’s cassette tapes without having obtained a search warrant authorizing them to do so. The controlling question is whether defendant had a reasonable expectation of privacy in the contents of the tapes. No doubt exists of defendant’s subjective expectation of privacy. Thus the issue is whether his expectation is one that society is prepared to consider reasonable. See United States v. Jacobsen, — U.S. —, —, 104 S.Ct. 1652, 1661 , 80 L.Ed.2d 85, 100 (1984).

Defendant put the materials in sacks that he intended to store in a locker in a *768 locked quonset hut on the premises of his country club. The hut was located in a valley on the golf course a considerable distance from the surrounding residential area. The club premises were marked with “no trespassing” signs, and only club members or their guests had a right of access. Because the time was mid-December, the course was not actually in use.

When defendant discovered he could not obtain access to the quonset hut, he looked for another place to secrete his materials on a temporary basis. He saw a large pile of peat moss covered by a tarpaulin near the quonset hut. He looked carefully in all directions and saw no one else on the club premises. The site could not be seen from the residences near the golf course. The peat moss and tarpaulin were frozen. Defendant broke the seal on the tarpaulin, lifted a corner sufficiently to place his sacks underneath it, and placed the frozen tarpaulin over the sacks to conceal them. The sacks were not visible. They were to remain under the tarpaulin only until defendant returned for them less than three hours later.

In these circumstances it defies reality to suggest that defendant’s expectation of privacy was not objectively reasonable and legitimate. In Rakas v. Illinois, 439 U.S. 128, 143-44, n. 12 , 99 S.Ct. 421, 430-31 , 58 L.Ed.2d 387, 401-02 (1978), the court noted that determining whether expectations of privacy are reasonable involves “reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Here the defendant’s presence on the premises of the private golf club was lawful. He obviously had authority to store personal possessions there. The fact that the place he chose for temporary storage of the two sacks turned out not to be secure does not diminish his right to expect that his interest in his property would be respected by anyone reasonably likely to be on the. premises. I believe the record sufficiently demonstrates a legitimate expectation of privacy.

The private citizen did not infringe defendant’s fourth amendment rights in seiz-

ing the materials. This is because the amendment protects only against governmental action. The police officers, however, went beyond the citizen’s seizure when they listened to the cassette tapes. This is the principle involved in United States v. Jacobsen, — U.S. —, 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984), and Walter v. United States, 447 U.S. 649 , 100 S.Ct. 2395 , 65 L.Ed.2d 410 (1980). This principle does not depend on the implication of any first amendment issue. Once it is established that the person has a reasonable expectation of privacy, an invasion of that interest by the government constitutes a search.

Treating this as an “open fields” case stretches that doctrine beyond its limits. A person may have a legitimate expectation of privacy in even a public place. Although property concepts may be a source of a legitimate expectation of privacy, they do not become the measure of the government’s right to intrude. “ ‘[T]he premise that property interests control the right of the Government to search and seize has been discredited.’ ” Katz v. United States, 389 U.S. 347, 353 , 88 S.Ct. 507, 512 , 19 L.Ed.2d 576, 583 (1967) (quoting Warden v. Hayden, 387 U.S. 294, 304 , 87 S.Ct. 1642, 1648 , 18 L.Ed.2d 782, 790 (1967)). The open fields doctrine concerns the right of officers to enter an open field to conduct a search without a warrant. Oliver v. United States, — U.S. —, 104 S.Ct. 1735, 1738 , 80 L.Ed.2d 214 (1984). No such event occurred in the present case.

This case is more like United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977) and its progeny. In Chadwick the Court held that an individual who placed personal effects in a locked footlocker had a legitimate expectation that the contents would remain free from public examination: “No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause.” Id. at 11 , 97 S.Ct. at 2483 , 53 L.Ed.2d at 548 . Defendant’s temporary concealment of his effects under the tar *769 paulin in the present case was an analogous effort to shield their contents from public examination. The relevant question here is not whether probable cause existed upon which a warrant eould have been issued. By listening to the cassette tapes the officers conducted a warrantless search. As in Chadwick , there being no emergency, “it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.” Id.

I would hold that the court erred in overruling defendant’s motion to suppress the audio cassettes.

CARTER, J., joins this dissent.