State v. Jennette

BROCK, Justice,

dissenting.

I concur in the dissenting opinion of Justice Drowota but, in addition, I wish to herewith set out some of my views.

A. Application of the plain view doctrine:

As the “plain view doctrine” is generally described, one of its requirements is that the officer must “properly be in a position from which he can view a particular area.” Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535, 1540 , 75 L.Ed.2d 502 (1983). When the requirements are met, the doctrine validates the warrantless seizure of the object in question. Id., 103 S.Ct. at 1540 . However, a distinction has been drawn where the object visible to the officer is located within an area in which the defendant has a privacy interest which has not yet been intruded upon by the officer and the officer does not have access to the object to physically seize it. As will be shown below, in such situations, the Supreme Court cases support the position that the viewing by the officer is not a search at all, and that the observation of the object by the officer may give him probable cause but does not itself obviate the need for a warrant for the seizure. A warrant is required, absent an exception to the warrant requirement.

This view is stated in 1 W. LaFave, Search and Seizure § 2.2 (1978). After distinguishing the “nonsearch-plain view” situation (observation without a prior physical intrusion into a constitutionally protected area) from the plain view doctrine outlined in Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), he states:

“It is equally important to understand that while the characterization of an observation as a nonsearch plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful. Though the Supreme Court in another context has rather loosely asserted that ‘objects falling in the plain view of an officer who has a right to be in the position to have the view are subject to seizure,’ this is quite clearly not so as to the type of plain view under discussion here. Again Judge Moylan:

‘Seeing something in open view does not, of course, dispose ipso facto, of the problem of crossing constitutionally protected thresholds. Those who thoughtlessly over-apply the plain view *622 doctrine to every situation where there is a visual open view have not yet learned the simple lesson long since mastered by old hands at the burlesque houses, “You can’t touch everything you can see.” ’

‘Light waves cross thresholds with a constitutional impunity not permitted arms and legs. Wherever the eye may go, the body of the policeman may not necessarily follow.’ ” LaFave, supra, at 243-44 (footnotes omitted) (quoting Moyland, The Plain View Doctrine: Unexpected Child of the Great “Search Incident” Geography Battle, 26 Mercer L.Rev. 1047, 1096 (1975)).

The Supreme Court appears to have taken the same view. In Coolidge , the Court made the following statement:

“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 .

Accord, United States v. Coplen, 541 F.2d 211, 215 (9th Cir.1976, cert. denied 429 U.S. 1073 , 97 S.Ct. 810 , 50 L.Ed.2d 791 (1977) (warrant or exigent circumstances required for seizure of parked aircraft after officer looked in window and spotted marijuana debris).

In Texas v. Brown, supra, the plurality noted the distinction outlined above. In discussing the plain view doctrine, the plurality spoke in terms of access to the property:

“The question whether property in plain view of the police may be seized therefore must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question_ '... The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.’ A different situation is presented, however, when the property in open view is ‘situated on private premises to which access is not otherwise available for the seizing officer.’ [Citations omitted.] As these cases indicate, ‘plain view’ provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment.” 103 S.Ct. at 1540 (footnote omitted). (Emphasis added.)

From the above discussion, it appears that the observation of the contraband gave the officers probable cause to believe that contraband was located on the property. The question of whether a warrant was required in order to intrude upon the property and seize it should be determined in the same manner as if the officer had acquired probable cause through another means, such as through a reliable informant.

B. Significance of the contraband nature of the property observed:

The contraband nature of the property in question is not of significance. The cases do not distinguish the seizure of contraband and the seizure of other evidence seen in open view from outside a constitutionally protected area. See Texas v. Brown, supra, 103 S.Ct. at 1540-41 (lumping together seizure of evidence of a crime, stolen property, contraband, and items otherwise subject to seizure which are in plain view); Coolidge, supra, 403 U.S. at 468 , 91 S.Ct. at 2039 (“But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that police may not enter and make a warrantless seizure.”); Taylor v. United States, 286 U.S. 1 , 52 S.Ct. 466 , 76 L.Ed. 951 (1932) (invalidating the warrantless seizure of contraband liquor from a garage where it had been seen by officers from outside the garage).

It is my opinion that the proper analysis in this case is as follows:

(1) The initial observation during aerial surveillance was not a search and was *623 therefore not violative of the Tennessee or United States Constitution.

(2) The observation gave officers probable cause to believe that marijuana was being cultivated on the property.-

(3) Though the officers had probable cause, the seizure of the contraband required a warrant, absent an exception to the warrant requirement, such as exigent circumstances, or a finding that under the “open fields” doctrine, the area was not constitutionally protected from physical intrusion by officers.

(4) Although the facts of this case might fit under the federal version of the “open fields” doctrine, it does not fit under the more limited Tennessee version of the doctrine, as concluded by Justice Drowota. Also, no exigent circumstances existed.

(5) Therefore, the warrantless seizure of the contraband was invalid as a matter of Tennessee Constitutional law, although it might be valid as a matter of U.S. Constitutional law under the “open fields” doctrine.

(6) Because only the warrantless seizure of the marijuana was improper, Officer Dover’s testimony concerning the observations during the aerial surveillance need not be suppressed.