Petition — Grassi v. Louisiana

Supreme Court, U.

FILED

MAY 12 1980

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

XO —8-9-18 03

JONATHAN GRASSI;

JAMES R. GREEN;

and

LARRY A. CANNON,

Petitioners,

Wi

THE STATE OF LOUISIANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE

STATE OF LOUISIANA

Epwarp T. M. GARLAND

Mark J. KapDISsH

THomAS 8. CLEGG

GARLAND, NUCKOLLS. KADISH,

MARTIN & CATTS, P.C.

1012 Candler Building

Atlanta, Georgia 30303

(404) 577-2225

JR., CLERN

TABLE OF CONTENTS

Opinions Below...... KES Ha ae eee

hse. ia 2a eee ex eae eee

Questions Presented for Review...................

Constitutional Provision Involved.................

TI oo Se oo 6045s ees

eet OF Gil TNs oc ss eee ee ee

Reason for Granting the Writ.....................

THIS CASE PRESENTS SIGNIFICANT ISSUES

DEALING WITH WHETHER THE ARBI-

TRARY APPLICATION OF COMMON LAW

PROPERTY CONCEPTS IS THE PROPER

STANDARD TO BE APPLIED WHEN DETER-

MINING WHETHER A PARTY ON PRIVATE

PROPERTY HAS HIS REASONABLE

EXPECTATION OF PRIVACY VIOLATED

FOR PURPOSES OF DETERMINING THE

APPLICABILITY OF THE FOURTH AMEND-

MENT, WHEN LAW ENFORCEMENT

AUTHORITIES TRESPASSED ONTO PRIVATE

PROPERTY OWNED BY A CO-DEFENDANT

AND SECRETED THEMSELVES FOR PUR-

POSES OF SURVEILLANCE. WHEN SAID

SURVEILLANCE COULD NOT HAVE BEEN

ACCOMPLISHED ABSENT THE TRESPASS.

REVIEW IS NECESSARY TO BRING TO THIS

COURT’S ATTENTION A PRECEDENT

SETTING ERROR OF THE SUPREME COURT

OF LOUISIANA CONCERNING THE CRITI-

CAL QUESTION OF WHAT CONSTITUTES

A REASONABLE EXPECTATION OF

PRIVACY. REVIEW IS FURTHER NECES-

SARY AS NUMEROUS CIRCUITS AND

i

TABLE OF CONTENTS (Continued)

Page

STATES CONTINUE TO APPLY STANDARDS

IN DETERMINING WHAT IS A REASONABLE

EXPECTATION OF PRIVACY WHICH ARE

FOUNDED ON PRECEDENT PREDATING

KATZ V. UNITED STATES, 389 U.S. 347

(1967) AND AS ARE SUCH IN DIRECT

CONTRAVENTION TO THAT CASE.

eka. oy peas os cos ss ss sesveecces 13

Ee 14

ea Wika bo kd 5800s ce ecas ee eeas A-1

TABLE OF CITATIONS

Cases

Care v. United States, 231 F.2d 22 (10th Cir. 1956)... 7

Hester v. United States, 265 U.S. 57 (1924).......... 7

Hodges v. United States, 243 F.2d 281

ei yak ahes ns scsacvcsecese 8

Katz v. United States, 389 U.S. 347 (1967).......... 6, 7

People v. Weisenberger, 516 P.2d 1128 (1973)........ 8

Rakas v. Illinois, US. —____., 99 8.Ct. 421,

os 7

State v. Byers, 359 So.2d 84 (1978)..............05. 12

State v. Fearn, 345 So.2d 468 (1977).............4.. 12

United States v. Basile, 569 F.2d 1053 (9th Cir. 1978).. 9

United States v. Carriger, 541 F.2d 545 (6th Cir. 1976). 11

United States v. Cruz, 581 F.2d 535 (5th Cir. 1978).... 9

United States Ex Rel Saiken v. Bensinger,

546 F.2d 1292 (7th Cir. 1976)................08. 8

United States v. Freie, 545 F.2d 1217 (Sth Cir. 1976)... 8

is

TABLE OF CITATIONS (Continued)

Page

Cases (Continued)

United States v. Jackson, 588 F.2d 1046

fas 2, eer reer eee ere reer er ee ree

United States v. Sorce, 325 F.2d 84 (7th Cir. 1964).... 8

United States v. White, 401 U.S. 745 (1971).......... }0

United States v. Williams, 581 F.2d 451

SE I no ees eee KGN Lc Cones onene wes 8

Wattenburg v. United States, 388 F.2d 853

CC Cok ck ata sah sana cea eee ne ee 8

Wong Sun v. United States, 371 U.S. 471 (1963)...... 9

Statutes

SE bs cea hack Ve visa es 2

Table of Authorities

Amsterdam, Perspectives on the Fourth Amendment,

58 Minn. L.Rev. 349, 385 (1974). .............8. 7

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

|:

JONATHAN GRASSI;

JAMES R. GREEN;

and

LARRY A. CANNON,

Petitioners,

v.

THE STATE OF LOUISIANA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE

STATE OF LOUISIANA

The petitioners, JONATHAN GRASSI, JAMES R.

GREEN and LARRY A. CANNON, respectfully ask

that a Writ of Certiorari issue to review the judgment and

opinion of the Supreme Court for the State of Louisiana.

OPINIONS BELOW

On December 13, 1979 the Supreme Court of the State

of Louisiana affirmed the judgment of the Sixteenth

Judicial District Court, Parish of St. Martin. See Appen-

dix A. A petition for a rehearing was filed on or about the

17th of January, 1980, which was subsequently denied.

1

2

JURISDICTION

Jurisdiction of this appeal is grounded in a December

13, 1979 decision of the Supreme Court for the State of

Louisiana and their subsequent denial of an application

for a rehearing. The statutory provision conferring juris-

diction for this appeal is 28 U.S.C. 1257.

QUESTION PRESENTED FOR REVIEW

1. Whether the proper standard was used when com-

mon law property concepts were arbitrarily applied to

determine whether Petitioners’ reasonable expectation of

privacy was violated for purposes of determining the

applicability of the Fourth Amendment, when law en-

forcement authorities trespassed onto private property

owned by a co-defendant and secreted themselves for

purposes of surveillance, when said surveillance could not

have been accomplished absent the trespass.

CONSTITUTIONAL PROVISION INVOLVED

Fourth Amendment, United States Constitution:

The right o t he people to be secure in their persons,

houses, papers and effects against unreasonable searches

and seizures, shall not be violated and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

PREFATORY STATEMENT:

All references to the record in this case will be preceded

by the capital letter ‘‘T”’.

3

STATEMENT OF THE CASE

Petitioners were charged with violating the state laws

of Louisiana in that they possessed with intent to dis-

tribute marijuana. Petitioners, with the other co-defen-

dants in the case, filed a joint motion to suppress evidence,

including the contraband seized. This motion attacked the

constitutional validity of the search and seizure in ques-

tion. This motion was denied and as a result of said denial

the petitioners entered a plea of guilty on March 12, 1979

expressly reserving their right to appeal denial of the

Motion to Suppress Evidence. An appeal was taken to

the Supreme Court of The State of Louisiana, which

affirmed the judgment on December 13, 1979. A petition

for a rehearing was filed on or around the 17th of Janu-

ary, 1980, which was subsequently denied.

Petitioner respectfully submits the following chronology

with respect to the “search and seizure’’ issue presented

here.

On June 15, 1978, at approximately 3:00 o’clock, p.m.,

a joint task force of United States Customs Air Officers

and Louisiana State Police commenced a surveillance of a

rural residential compound, which was the home of co-

defendants, Jeff H. Dupuis and Bernis H. Davison. This

surveillance was begun following the arrival of a refrige-

rator truck and two bobtail trucks at the property. This

residential compound, including its environs, is bounded

on the west by State Highway 349; on the north by the

Parish Road; and on the east and south by the edge of

‘plowed fields of growing sugar cane, the field to the south

being included in the Dupuis property. (T-500-03;

506-10; 519; 520; 522; 523; 529; 537).

The daylight activities of the joint governmental task

force was limited to “roving surveillance’’ from vehicles

4

operating on the two public highways which formed the .

north and west borders of the Dupuis property. The

roving surveillance consisted of officers driving by the

property to briefly ovserve what, if any, activity was

taking place. (T-343-45; 565; 647; 468; 668).

Frustrated by their inability to observe either the

trucks or any other activity within the compound from

their vantage point on the public highway, United States

Customs Officers Wade and Louisiana State Trooper

Le Jeune proceeded on foot through the Dupuis property

and surreptitiously secreted themselves in the sugar cane

field immediately south of the Dupuis residence. The law

enforcement officers moved about within the 3-4 foot

high cane fields, located on the Dupuis property from

time to time. (T-432; 437; 4389; 4438-448; 451; 475; 567;

568; 572; 577; 578; 593; 594; 595; 641; v42.)

The outer boundaries of the Dupuis property were

clearly defined by a gully on the south, the Parish Road

on the north and a fence along Highway 349 on the west

side. (T-439; 448-46; 520; 522; 532; 534-35; 541-42;

577; 578; 593-95). Officers testified that at all times their

on-foot surveillance activities were conducted from within

these boundaries, but they indicated that they were not

at all concerned with the possibility of being on private

property or on the Dupuis property. While the officers

were generally located approximately 25 to 40 yards

south of the Dupuis house, at least once, Louisiana State

Police Officer Le Jeune crept to the edge of the cane,

approximately ten (10) yards from the house. (T. 380-

82; 439; 443-46; 446-48; 475; 532; 534-35; 541-42; 567;

568; 572; 577-79; 593; 595; 607-08; 641-42).

During the evening, the officers observed the petition-

ers having a barbeque in the Dupuis’ backyard. During

5 .

this time, the three trucks remained stationary within

the compound. (T-451; 482; 567).

At approximately 11:30 p.m., four hours after the

initial trespass, the officers observed the barbeque come

to an end. At that time, they observed activities around

the trucks in question. These activities included backing

one of the bobtail trucks, flush to the rear of the refrige-

rator truck and of transferring large bales of an unknown

substance from one truck to another. Officer Wade ad-

mitted in testimony that he had no objective reason for

believing that the bales contained contraband, although

he suspected as much. (T-470-484).

After observing the bales, officer Wade contacted

Customs Air Officer Joachim who in turn proceeded to

telephone a United States Magistrate for purposes of

obtaining a search warrant. A warrant was issued which

was later stipulated by the parties to be invalid. A search

and seizure then went forward, which resulted in the dis-

covery of contraband. As a result of the pleas entered in

this case, the petitioners were sentenced to a term of

three (3) years and fined a total of $15,000.00, with two

additional years to be served upon the default of the pay-

ment of said fine. (T-797).

REASON FOR GRANTING THE WRIT

THIS CASE PRESENTS SIGNIFICANT ISSUES

DEALING WITH WHETHER THE ARBITRARY

APPLICATION OF COMMON LAW PROPERTY

CONCEPTS IS THE PROPER STANDARD TO BE

APPLIED WHEN DETERMINING WHETHER A

PARTY ON PRIVATE PROPERTY HAS HIS REA-

SONABLE EXPECTATION OF PRIVACY VIOLATED

FOR PURPOSES OF DETERMINING THE APPLI-

6

CABILITY OF THE FOURTH AMENDMENT,

WHEN LAW ENFORCEMENT AUTHORITIES

TRESPASSED ONTO PRIVATE PROPERTY

OWNED BY A CO-DEFENDANT AND SECRETED

THEMSELVES FOR PURPOSES OF SURVEIL-

LANCE, WHEN SAID SURVEILLANCE COULD

NOT HAVE BEEN ACCOMPLISHED ABSENT THE

TRESPASS. REVIEW IS NECESSARY TO BRING

TO THIS COURT’S ATTENTION A PRECEDENT

SETTING ERROR OF THE SUPREME COURT OF

LOUISIANA CONCERNING THE CRITICAL QUES-

TION OF WHAT CONSTITUTES A REASONABLE

EXPECTATION OF PRIVACY. REVIEW IS FUR-

THER NECESSARY AS NUMEROUS CIRCUITS

AND STATES CONTINUE TO APPLY STANDARDS

IN DETERMINING WHAT IS A REASONABLE EX-

PECTATION OF PRIVACY WHICH ARE FOUNDED

ON PRECEDENT PREDATING KATZ V. UNITED

STATES, 389 U.S. 347 (1967) AND AS ARE SUCH IN

DIRECT CONTRAVENTION TO THAT CASE.

A. PETITIONERS FOURTH AMENDMENT

RIGHTS WERE VIOLATED WHEN AN IM-

PROPER, OUTMODED STANDARD WAS USED

TO DETERMINE IF THE PETITIONERS WERE

ENTITLED TO FOURTH AMENDMENT PRO-

TECTION WHERE THEIR REASONABLE EX-

PECTATION OF PRIVACY WAS VIOLATED,

WHEN LAW ENFORCEMENT AUTHORITIES

TRESPASSED ONTO PRIVATE PROPERTY

AND SECRETED THEMSELVES FOR PUR-

POSES OF SURVEILLANCE, WHEN SAID SUR-

VEILLANCE COULD NOT HAVE BEEN AC-

COMPLISHED ABSENT THE TRESPASS.

7

The Fourth Amendment prohibits unreasonable

searches and seizures. A party however is not entitled to

the protection of the Fourth Amendment unless there

exists a reasonable expectation of privacy. Rakas v.

Illinois, US. , 99 S.Ct. 421, 58 L.Ed. 2d

387 (1978). To determine if there exists a reasonable

expectation of privacy it is necessary to determine if a

party has exhibited an actual subjective expectation of

privacy and, second, that the expectation be one that

society is prepared to recognize as reasonable. Katz »v.

United States, 389 U.S. 347 (1967). This definition was

deliberately intended to be ambiguous, since ‘what is

reasonable in one setting may be unreasonable in another.”

United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir.

1979). Accordingly, a case by case determination must

be made to determine if there is a reasonable expectation

of privacy since Katz ‘was written to resist captivation

in any formula.” Amsterdam, Prospectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 385 (1974).

Prior to Katz, a number of formulas had been applied

seeking a ready made answer as to when a party was

entitled to the protection of the Fourth Amendment. In

Hester v. United States, 265 U.S. 57 (1924) this Court

held as an absolute rule that the protection of the Fourth

Amendment did not apply to people who were in open

fields. This decision, based on the premise, that people

who were visible from a vantage point, outside their

property could not expect to keep their actions private

soon expanded, so that an “‘open field” became anything

that was not within the curtilage of certain property,

whether it was visible from outside the property or not.

Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956).

This sort of mechanistic approach was precisely what

8

the Supreme Court rebelled against in Katz, with its

holding that the Fourth Amendment protected people

and not places. Several courts in reaction to Kaiz held

that ‘‘Hester no longer has any independent meaning, but

merely indicates that open fields are not areas in which

one traditionally might reasonably expect privacy.”

United States v. Freie, 545 F.2d 1217, 1223 (9th Cir. 1976).

The Supreme Court of Colorado is an en bane decision

further held in People v. Weisenberger, 516 P.2d 1128

(1973) that property outside of the curtilage may be a

constitutionally protected area provided that the occu-

pant of the property had a reasonable expectation of

privacy. ‘Thus, the proper focus is no longer on common

law property concepts.” Wattenburg v. United States,

388 F.2d 853, 857 (9th Cir. 1968).

A number of courts however have continued to apply

common law concepts of property in such an arbitrary

fashion as to suggest that they are ignoring the pre-

scriptions of Katz to review cases on a case by case basis.

The court in United States v. Williams, 581 F.2d 451 (5th

Cir. 1978) after recognizing Katz held, ‘‘that open fields

surrounding a house are not protected under the Fourth

Amendment and that a search of them need not be ac-

companied by a warrant issued upon probable cause.”

That case then proceeded to define curtilage by citing to

Hodges v. United States, 243 F.2d 281 (5th Cir. 1957), a

pre Katz case. In United States Ex Rel. Saiken v. Ben-

singer, 546 F.2d 1292 (7th Cir. 1976), the Court did not

refer at all to Katz and cited United States v. Sorce, 325

F.2d 84 (7th Cir. 1964) a pre Katz case in holding that,

“the protection of the Fourth Amendment does not ex-

tend to open fields.”” The systematic formulation of this

case was emphasized by tle fact that the case included a

chart attempting to set forth specific standards in terms

9

of distance in order to define curtilage. The open field

doctrine was also adopted by the Court in United States v.

Basile, 569 F.2d 1053 (9th Cir. 1978).

Petitioners assert herein that the decisions of Williams,

Bensinger and Basile are incorrect in that they fail to

make case by case determinations as anticipated by Kaiz.

Petitioner further asserts that the Supreme Court of

Louisiana in holding against the petitioners relied to too

great a degree on the “open fields—curtilage” doctrine

and in doing so neglected to consider the fundamental

question of whether the petitioners reasonable expecta-

tion of privacy was violated. This is of the utmost signifi-

cance in the case at hand, since if their reasonable ex-

pectation of privacy was violated, the entry onto the

property in question by law enforcement officers would

be a search as contemplated by the Fourth Amendment.

United States v. Jackson, 585 F.2d 655 (4th Cir. 1978).

Such a search would of course need be supported by prob-

able cause (The Supreme Court of Louisiana conceded

that lacking the trespass and the fruits derived there-

from, there was no probable cause) and absent such

probable cause any evidence seized pursuant to it should

have been suppr ssed. Wong Sun v. United States, 371

U.S. 471 (1963); United States v. Cruz, 581 F.2d 535

(5th Cir. 1978).

The Supreme Court of Louisiana in its opinion did

take note of Katz and further took note of several of its

own cases in which it gave paramount consideration to

the concept of ‘reasonable expectation of privacy.” In

considering the case at hand however, the Court was too

quick to resort to outmoded property right concepts and

in so doing found them to be dispositive of the issue,

instead of being merely a factor to consider as to whether

@

10

there had been a violation of the petitioner’s reasonable

expectation of privacy.

Here the activities which were the subject of the sur-

veillance took place in the evening under cover of dark-

ness. They were further conducted at a removed rural

compound and were done in such a manner. thet they

were not visible from the public roads which boarded

the compound. In addition they were concealed by fields

of growing sugar cane which was high enough and dense

enough to conceal two law enforcement agents. Finally,

the trucks which were used in the activities under ques-

tion were backed flush to one another, allowing the ob-

serving agents a very short period of time to observe

their contents. At least part of the observation which was

made was conducted by use of night viewing equipment.

(T-470-484). From these facts it is no doubt clear, that

the petitioners exhibited an actual subjective expectation

of privacy.

The above facts would also be relevant as to whether

the expectation of privacy was one that society was pre-

pared to recognize as reasonable. Also relevant would be

the nature and extent of the intrusion since, ‘‘those more

extensive intrusions that significantly jeopardize the

sense of security which is the paramount concern of

Fourth Amendment liberties” are searches. Harlan J.

dissenting in United States v. White, 401 U.S. 745 (1971).

Here, the intrusion was extensive. The observation which

was begun around 3:00 p.m. continued past midnight.

In addition, several officers committed a trespass onto

the property in question and secreted themselves for an

excess of four hours, and used night viewing equipment as

noted above. Such activities cannot be reasonably antici-

pated by parties who seek to have a reasonable expecta-

11

tien of privacy.

Of special interest in the case at hand is the trespass.

Petitioner does not seek to assert that any trespass

automatically violates a reasonable expectation of privacy,

since it like ‘‘open fields’ is a common law property con-

cept. Nonetheless, it is relevant to the extent that “it

represents an invasion of a defendant’s reasonable ex-

pectation of privacy.” United States v. Jackson, supra,

659. Also relevant in this regard is the case of United

States v. Carriger, 541 F.2d 545, 549 (6th Cir. 1976) which

held that ‘trespassing is one form of intrusion by the

government that may violate a person’s reasonable ex-

pectation of privacy.” This view was justified under Katz

the court noted, since the ‘determination that the tres-

pass doctrine could no longer be regarded as controlling

was intended to expand the protection afforded by the

Fourth Amendment’’. The practical result however, has

been the abandonment of the concept of trespass, while

the concepts of “open fields” and ‘curtilage’ have been

allowed to grow and flourish.

Such a result orientation seems to have motivated the

Supreme Court of Louisiana in the case at hand. Faced

with the question of whether the Petitioners should have

taken steps to conceal themselves and their activities

from those who trespassed onto their property and con-

cealed themselved in a sugar cane field for an extensive

period of time, the Court saw fit to decide the case on

the fact that no signs, fences or gates were posted to

exclude the public. (A-4). This combined with the “open

fields-curtilage” distinction was sufficient for them to

affirm the conviction, although even in this regard, the

Court never stated as a matter of law that the petitioners

were outside the curtilage. (In adopting this distinction,

12

the Court adopted what they believed to be the Fifth

Circuit rule, “that the search of open fields surrounding a

house are not protected under the Fourth Amendment’’).

(A-4) Such a holding not only restricts the application

of the Fourth Amendment, but flies directly in the face

of previous case law enunciated by that very Court.

In State v. Byers, 359 So.2d 84 (19.8), the Supreme

Court of Louisiana overturned a conviction for a small

amount of marijuana noting that the ‘open fields”

doctrine of Hester did not apply and further holding that,

“The question of whether the property was legally posted

in compliance with state law is not decisive, and the issue

is one of expectation of privacy.”” This view is in line

with the case of State v. Fearn, 345 So.2d 468 (1977)

which overturned a conviction for a small number of

marijuana plants which were not visible except under

close inspection. There, as in the case at hand, the only

boundaries were natural ones. There however (despite

the similarities of the case), the Court held that the

appellants were entitled to a reasonable expectation of

privacy.

Ultimately, the Fourth Amendment is meant to insure

the right to be left alone. Increasingly however, Courts

have sought to erode this right, by limiting the application

of the Fourth Amendment. By continuing to apply

property concepts, the courts have instead of liberalizing

the Fourth Amendment, given themselves an easy handle

to adopt in order to justify a pre-ordained result. Con-

sequently, assertion of Fourth Amendment rights, will

be limited to those few who adopt mechanistic pre-

cautions and not to those who honestly and correctly

believe that they are entitled to a reasonable expectation

of privacy. Such a result would be contrary to Katz and

the Fourth Amendment and accordingly, the Supreme

Court should issue a writ of certiorari.

13

CONCLUSION

Based on the foregoing reasons, the Petitioner contends

that the Supreme Court for the State of Louisiana erred

in its decision concerning the novel issue presented to it

and misapplied controlling authority to the circumstances

involved in Petitioner’s situation. Thereafter, a Writ of

Certiorari should issue to review the judgment of the

Supreme Court.

Respectfully submitted,

GARLAND, NUCKOLLS, KADISH,

MARTIN & CATTS, P.C.

wy Slalad AM plore —

Epwarp T. M. GARLAND

1012 Candler Building

127 Peachtree Street jos

Atlanta, Georgia 30303

404/577-2225

14

CERTIFICATE OF SERVICE

This is to certify that I have this day served, the

Attorney General, New Orleans, Louisiana with a copy

of this pleading by depositing in the United States Mail

a copy of same in a properly addressed envelope with

adequate pogpage thereon. 4

this 2 bi dis day of _ , 1980.

" dad Mba

EDWARD T. M. GarvAnp

1012 Candler Building

127 Peachtree Street

Atlanta, Georgia 30303

(404) 577-2225

APPENDIX A

Dec. 18, 1979

SUPREME COURT OF LOUISIANA

NO. 64,762

STATE OF LOUISIANA

VERSUS

JEFF H. DUPUIS, BERNIS H. DAVIDSON,

JOHN R. PERDIAN, WILBUR L. SMITH,

JONATHAN GRASSI, JAMES R. GREEN, JR.

AND LARRY A. CANNON

On Appeal from the 16th Judicial District

Court, Parish of St. Martin

Hon. Edward A. de la Houssaye, III, Judge

BLANCHE, Justice.*

The defendants were charged by a bill of information

with the possession of marijuana with the intent to dis-

tribute in violation of La. R.S. 966(a). After the defen-

dants’ motion to suppress the twenty tons of marijuana as

evidence was denied, they plead guilty reserving all rights

to appeal the denial of the motion to suppress. Each

defendant was sentenced to three years at hard labor and

fined $15,000, in default of which each would serve two

years.

The police were led to the Dupuis property and the

marijuana through a series of events beginning with the

*Honorable Jesse N. Stone, Jr. served as Justice Ad Hoc in the

vacancy created by the resignation of Tate, J.

A-1

A-2

discovery of an aircraft in Georgia loaded with 23,000

pounds of marijuana. The aircraft was registered to

Marvin Zylstra. A few days before Jeff Dupuis had rented

a car as the agent of Marvin Zylstra from an Avis Rent-

a-Car facility in the Dalton, Alabama airport. After a

check of the Breaux Bridge, Louisiana address given by

Dupuis, a refrigerated truck was found on the property.

This truck was registered to a Mr. Zerbe, who was also

known to be an associate of Zylstra through information

cbtained from the El Paso Intelligence Center. On June

11, 1978, the refrigerated truck left the Dupuis property

and returned June 15, 1978 along with two bobtail trucks

bearing Georgia license plates. In light of this informa-

tion, the authorities expected the trucks to depart shortly

to pick up a load of marijuana. Therefore, a joint task

force of United States Customs Air Officers and Louisiana

State Police commenced a surveillance of the Dupuis

residence in order to determine when the trucks would

leave.

The rural residential area under police surveillance was

a corner tract on which is located a house belonging to the

defendant Jeff Dupuis, and a mobile home occupied by

the defendant Bernis Davidson. This compound was

bounded on the west by State Highway 349, on the north

by a parish road, and on the east and south by fields of

sugar cane. Between the sugar cane field and the house

ran a shell road.

Until 7:30 p.m., the officers’ activities consisted of

simply a roving surveillance on the public roads. At 7:30

p.m., two officers proceeded by foot from the parish road

on the north side of the property through the sugar cane

field to a point south of the Dupuis yard. About 11:00

p.m., the officers noticed that the thre etrucks parked on

A-3

the private road between the residence and the fields

were being maneuvered for some loading operation. When

the rear doors of the trailer were opened, one of the

officers, through the use of night viewing equipment,

observed large bales of a substance he presumed to be

marijuana because of the size and shape of the bales.

Later, when the first bobtail truck moved from the back

of the trailer, the interior light of the truck allowed the

officers to see the bales with their unaided eyes. At this

point, the officers attempted to obtain a telephone search

warrant. After obtaining the warrant, the officers moved

in and arrested the defendants and seized the trucks and

their contents.

The state has stipulated that the warrant obtained by

the officers is invalid since the requirements for a tele-

phone search warrant had not been met. Based upon these

facts, the trial court denied the defendants’ motion to

suppress. The defendants have urged that the original

trespass onto their property (the sugar cane fields) for

the purpose of observing their activities violated their

Fourth Amendment right to privacy. In Katz v. U.S.,

389 U.S. 347 (1967), the United States Supreme Court

abandoned the notion that the Fourth Amendment pro-

tection was implemented in certain ‘constitutionally

protected areas’’. The courts will now look to the defen-

dant’s reasonable expectation of privacy in determining

whether the Fourth Amendment applies. In determining

whether one has a reasonable expectation of privacy, the

test is not only whether the person had an actual or

subjective expectation of privacy but also whether their

expectation of privacy is of the type which society at large

is prepared to recognize as being reasonable. State v.

Wilbourn, 364 So.2d 995 (La. 1978). In applying the test,

A-4

it has been held that a search and seizure conducted on

the private land of defendant for marijuana violated the

Fourth Amendment where the marijuana was not visible

from the public road and the private road was posted

and a chain barred access to the private road. State v.

Byers, 359 So.2d 84 (La. 1978).

In State v. Fearn, 345 So.2d 468 (La. 1977), the court

found that the defendant had a reasonable, although not

justified, expectation of privacy because his marijuana

plants could not be seen from his parents’ house. For this

reason, the seizure was held invalid. However, the court

noted that the initial viewing of the plants from the

neighbor’s yard by the police was not an intrusion since

the plants were clearly visible from this point.

In examining the reasonableness of the defendant’s

expectation of privacy, the distinction between open

fields and curtilage may be helpful. The Fifth Circuit

has held that the search of open fields surrounding a

house are not protected under the Fourth Amendment

since there is no reasonable expectation of privacy. U.S.

v. Brown, 473 F.2d 952 (5th Cir. 1973). Thus, in U.S. v.

Williams, 581 F.2d 451 (5th Cir. 1978), the Fifth Circuit

upheld the seizure of moonshine from the defendant’s

shed where officers had detected the odor of mash while

standing outside the curtilage of defendant’s home despite

the fact that they had trespassed onto his property.

In the instant case, the field from which the defen-

dants’ operations were observed was leased to others for

agricultural purposes. Thus, the field like the neighbor’s

yard in Fearn, was not exclusively in the control of the

defendant. There were no signs, fences or gates to exclude

the public as in Byers from the area. In fact, any stranger

could have driven down the shell road or been in the

A-5

field and observed the defendants’ loading activities.

As in Williams, the police’s observations were made

from a field outside the curtilage of the Dupuis home.

Although the officers were trespassing, the defendants

had no reasonable expectation of privacy as to this field.

Of course, the use of extrasensory means of probing does

increase the extent of an intrusion. The problem created

by the use of night viewing equipment is pretermitted

here since the police officer testified that he was able to

clearly discern the characteristic wrappings of bales of

marijuana with his unaided eyes as the bobtail truck

pulled off. Therefore, we conclude that the initial sighting

of the marijuana by the officers from the sugar cane field

did not violate the Fourth Amendment since the defen-

dants had no reasonable expectation that their activities

would remain private.

The state has conceded that the telephone search war-

rant is invalid. Therefore, the seizure of the trucks and

their contents must be justified as a warrantless seizure.

The rule is well established that warrantless searches and

seizures are unreasonable unless they fit within one of the

limited number of well-delineated exceptions to the war-

rant requirement. State v. Guzman, 362 So.2d 744 (La.

1978); State v. Daigre, 364 So.2d 902 (La. 1978).

One of these exceptions to the warrant requirement is

the so-called “automobile exception’. This exception is

based upon the existence of probable cause to search the

vehicle and exigent circumstances which render it im-

practical to secure a warrant. State v. Spencer, 374

So.2d 1195 (La. 1979).

In determining whether the officers had probable cause

to seize the marijuana, we must determine if under the

A-6

facts and circumstances known to the police at the time of

the seizure, a reasonable person would conclude that con-

traband was present. In this case, officers received infor-

mation from various criminal intelligence sources linking

the defendants with persons suspected of narcotics traf-

ficking in Georgia. The officers observed three trucks

being maneuvered in total darkness into a loading posi-

tion. Further, from their position in the cane field, they

saw what appeared to be bales of marijuana.

Although the sighting of the bales alone may have been

sufficient to justify a belief that contraband was present,

it should be noted that there were other underlying facts

which supported the police’s suspicions. Customs officials

had discovered an abandoned plane in Georgia filled with

marijuana and registered to Marvin Zylstra. The defen-

dant, Jeff Dupuis, had rented a car in Alabama as Mr.

Zylstra’s agent. Further, officers discovered a refrigerated

truck at the Dupuis residence which was registered to

Mr. Zerbe, an associate of Mr. Zylstra. The officers testi-

fied that such refrigerated trucks are a common method

of transporting marijuana. This information, although

insufficient in itself to establish probable cause, was

enough to arouse police suspicions. The subsequent

arrival of trucks bearing Georgia license plates, the mid-

night loading activities and the sighting of the bales

combined with the other information were sufficient facts

and circumstances to constitute probable cause.

We also conclude that exigent circumstances existed.

One of the bobtail trucks had already been unloaded into

the refrigerated truck within 20 or 30 minutes. At this

point, the officers tried to get the warrant. After another

20 minutes had passed, it was reasonable to conclude that

the loading operations were almost complete and that

A-7

the trucks would be leaving. Since the departure of the

trucks was imminent, the officers were justified in moving

in to arrest the defendants and seize the trucks without

waiting to secure a warrant. See State v. Spencer, supra.

The trial court properly denied the defendants’ motion to

suppress since the search and seizure did not violate the

Fourth Amendment’s protection against unreasonable

searches and seizures.

For the reasons assigned, the judgment of the trial

court is affirmed.

AFFIRMED.