State v. Tarantino

Justice Mitchell

dissenting.

The defendant has at no time contended in the present case that any step in either the search for or the seizure of his marijuana violated any provision of the Constitution of North Carolina or any statute. Instead, the defendant raises only the federal question of whether the trial court was required to suppress the evidence concerning the marijuana seized from his building, because probable cause for the search warrant was obtained in violation of the Fourth Amendment to the Constitution of the United States.

The majority relies upon the decision of the Supreme Court of the United States in Dunn v. United States, 480 U.S. —, 94 L.Ed. 2d 326 (1987) in resolving the Fourth Amendment question presented here. I am convinced that the principles stated and applied in Dunn do not require exclusion of evidence concerning the marijuana seized in the present case. Therefore, I dissent.

I begin by assuming in the present case, as the Supreme Court assumed in Dunn , that the building in which the contraband was located was protected by the Fourth Amendment. 480 U.S. at —, 94 L.Ed. 2d at 337 . However, I believe that any expectation of privacy the defendant may have had in the present case was much less “reasonable” than that of the defendant in Dunn .

It is true that in Dunn , the Supreme Court held for purposes of Fourth Amendment search and seizure analysis that the barn lay outside the curtilage of the defendant’s home. But cf. State v. Frizzelle, 243 N.C. 49, 51 , 80 S.E. 2d 725, 726 (1955) (applying State common law); State v. Browning, 28 N.C. App. 376, 379 , 221 S.E. 2d 375, 377 (1976) (same). However, the evidence in Dunn revealed that the barn was a part of the same small Texas ranch *394 on which the defendant’s residence was located and was only sixty yards from the residence. The residence and barn

are located in a clearing surrounded by woods, one-half mile from a road, down a chained, locked driveway. Neither the farmhouse nor its outbuildings are visible from the public road or from the fence that encircles the entire property. Once inside this perimeter fence, it is necessary to cross at least one more “substantial” fence before approaching Dunn’s farmhouse or either of his two barns ....

United States v. Dunn, 480 U.S. at —, 94 L.Ed. 2d at 338 (Brennan, J., dissenting). The front of the barn involved in Dunn was enclosed by a wooden fence. The back and sides of the barn

“were composed of brick, metal siding, and large metal sliding doors and were completely enclosed. The front of the barn was partially composed of a wooden wall with windows. The remainder was enclosed by waist-high wood slatting and wooden gates. At the time of [the] agentfs] visits . . ., the top half of the front of the barn was covered by a fishnet type material from the ceiling down to the top of the locked wooden gates. To see inside the barn it was necessary to stand immediately next to the netting [under the barn’s overhang]. From as little as a few feet distant, visibility into the barn was obscured by the netting and slatting.” 766 F. 2d 880, 883 (CA5 1985).

Id.

Since the barn and adjacent barnyard in Dunn were held to be outside the curtilage, the Supreme Court concluded that the officers had observed the interior of the barn from an open field not protected by the Fourth Amendment. Although the officers in Dunn could not see inside the barn — assumed to be protected by the Fourth Amendment — until they went under the eaves and stood immediately next to the netting used to cover the only open portion, the Supreme Court concluded that no unreasonable search was involved.

The Supreme Court has held that:

[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own *395 home or office, is not a subject of Fourth Amendment protection .... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. United States, 389 U.S. 347, 351-52 , 19 L.Ed. 2d 576, 582 (1967). On the facts of Dunn , the Supreme Court indicated that the defendant had not sufficiently sought to preserve his privacy interest in his barn and the immediately adjacent area because he “did little to protect the barn area from observation by those standing in the open fields.” United States v. Dunn, 480 U.S. at ---, 94 L.Ed. 2d at 336 .

Any expectation of privacy the defendant in the present case may have had in the closed country-store building was, by any objective test, much less “reasonable” than the defendant’s expectation of privacy in Dunn . In Dunn the barn was only sixty yards from the defendant’s residence. The closed country-store in the present case was not near any dwelling house and was the only structure on the property. In Dunn the defendant took extensive steps to ensure his privacy by blocking his driveway with a chain and lock located approximately one-half mile from the barn, fencing the perimeter of his property, fencing the barn itself, and shielding the only open part of the barn with a locked gate and netting material. The defendant in the present case erected no barriers on his property, but simply placed a large quantity of marijuana in the old empty store and closed the door. In Dunn the officers were required to walk a great distance from the road and climb perimeter and interior fences before they could position themselves under the eaves of the barn and close enough to see through the netting material into the interior. Here, the investigating officer merely had to walk a relatively short distance up an unobstructed path and step onto the essentially open back porch of the old store building. In order to see into the building, he had merely to stoop or bend at the waist and look through one of the open spots in the rear of the building.

I am convinced that Dunn did more to protect his barn from observation than was done by the defendant here, and Dunn’s expectation of privacy was far more reasonable than any expectation of privacy this defendant may have had. I certainly am convinced that any distinction between this case and Dunn on the *396 ground that the officer here had to bend at the waist to see through an open slit in the wall, while in Dunn the officers had to go under the eaves of the barn and position themselves close enough to peek through Dunn’s netting material, could not be reasonably viewed as a distinction favorable to this defendant. If we are to follow Dunn in resolving the purely federal question presented, I believe we must hold that the information obtained by looking through the back of the building was not obtained in violation of the Fourth Amendment, and it properly provided probable cause for the issuance of the search warrant. Accordingly, I dissent.

Justices Meyer and Webb join in this dissenting opinion.