Petition — Logiudice v. Georgia

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88-1399

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

THOMAS LOGIUDICE,

Petitioner

versus

THE STATE OF GEORGIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

BRUCE MALOY

ALBERT M. HORN

Attorneys for Petitioner

: HORN & MALOY

: 1500 Healey Bldg.

) 57 Forsyth St. N.W.

: Atlanta, GA 30303

404/523-4611

February 13, 1984

a c= Peery ‘. PF ee gee SOND Ke * (See oat? Pe ——_——_ + fe aa Se aie Ss

. - “ty 7

DOES THE “OPEN FIELDS" DOCTRINE OF |

HESTER V. UNITED STATES, 265 U.S. 57

(1924) JUSTIFY THE WARRANTLESS, TRES- :

PASSORY SEARCH OF FENCED AND POSTED

PRIVATE LAND WITHOUT PROBABLE CAUSE a

OR EXIGENT CIRCUMSTANCES WHEN THE 3

OWNER HAS A REASONABLE EXPECTATION OF 2

PRIVACY? :

;

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .. i

DOES THE “OPEN FIELDS" DOCTRINE

OF HESTER V. UNITED STATES, 265

U.S. 57 (1924) JUSTIFY THE

WARRANTLESS, TRESPASSORY SEARCH

OF FENCED AND POSTED PRIVATE LAND

WITHOUT PROBABLE CAUSE OR EXIGENT

CIRCUMSTANCES WHEN THE OWNER HAS A

REASONABLE EXPECTATION OF PRIVACY?

OPINIONS 0 EE 2

Dn a. «6 nn eo) bebe é cee te 2

CONSTITUTIONAL PROVISIONS INVOLVED. 3

STATEMENT OF THE CASE....sseeeee++ 5

REASONS FOR GRANTING THE.WRIT..... 13

THE COURT HAS ALREADY DECIDED

TO REVIEW OTHER CASES TO DETER-

MINE IF THERE IS AN “OPEN FIELDS"

EXCEPTION TO THE WARRANT REQUIRE-

MENT. |

GG ac co cccen se cecccescseceos 24

CERTIFICATE OF SERVICE......see0- 26

RPGTMO Ec co oc cccccecoccecocooecece la

~—

= a

TABLE OF AUTHORITIES

Air Polution Variance Board v. Western

Alfalfa Corp., 416 U.S. 861 (1974)...4

Dow Chemical Co. v. U.S.,

536 F. Supp. 1344 (E.D. Mich.(1982).11

Florida v. Brady,

406 So.2d 1093 TROP ékb oe 60 oe ees eee

Gidden v. State,

156 Ga. App. 258 Fapeer bcéccceds tea

Hester v. United States,

265 KF (1924)... eee eeeeeees+- passim

Karlovich v. State,

165 Ga. App. 761 + ee eee

Katz v. United States,

389 U.S. 347 (1967).....+-++----passim

LoGiudice v. State,

164 Ga. App. 709 (1983)..........10,14

Maine v. Thornton,

453 A.2d 489 (Me. 1982).......-passim

United States v. Dunn,

674 F.2d 1093 peobvececeoosecoeoseossaun

United States v. Freie,

545 F.2d 1217 (9th Cir. 1976)......19

United States v. Oliver,

686 F.24 356 (6th Cir. 1982)...passin

OTWER AUTHORITIES

LaFave, Search & Seisure §2.4(a)(1978),19

iii

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

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THOMAS LOGIUDICE,

Petitioner,

versus

THE STATE OF GEORGIA,

Respondent.

i te ee ee i ee aa 4s

PETITION FOR A WRIT OF

CERTIORARI TO THE GEORGIA COURT

OF APPEALS

Thomas LoGiudice prays that a Writ

of Certiorari issue to review the

Gecision of the Georgia Court of Appeals

entered on November 22, 1982.

OPINIONS BELOW

The opinion of the Georgia Court of

Appeals is reported at 164 Ga. App. 709

(1981). The Georgia Supreme Court denied

certiorari on January 26, 1983. On

rehearing the Georgia Supreme Court

reversed that decision and granted the

writ. After briefing and oral argument

the Georgia Supreme Court vacated its

order granting certiorari, LoGiudice v.

State, 251 Ga. 711 (1983) with Justice

George T. Smith dissenting.

Justice Smith's dissent is reproduced as

Appendix A. There is no opinion in

support of the Order vacating the grant

of certiorari. On December 15, 1983

reconsideration of the order was denied.

JURISDICTION

The jurisdiction of this Court is s

invoked under 28 U.S.C. £1257 (3)

authorizing the grant of a writ of

certiorari from the highest state court.

The Georgia Supreme Court vacated the

writ of certiorari on November 16, 1983.

A timely Petition for Rehearing was

denied December 15, 1983. The mandate

was stayed by the Georgia Court of

Appeals as the highest state court to

reach the merits of issues presented to

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Fourth

Amendment:

The right of the people to be secure 0

in their persons, houses, papers, and Lag

effects, against unreasonable searches Nig

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, the persons

or things to be seized.

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ate)

4 7

Constitution of the United States, ¥

Fourteenth Amendment, Section One: ;

All persons born or naturalized in

the United States and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its

jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

In 1979 Thomas LoGiudice bought a 345

acre tract of land in a rural area of

Upson County, Georgia. In 1980 the

county sheriff received information that

heavy equipment was being operated on the

land at night and that a water line had

been run into the woods and stopped

abruptly with no apparent purpose.

The sheriff, now suspicous that

marijuana was being grown on the land

entered the property by climbing barbed

wire fences and welded fences on the back

side of the property. He found no

evidence of illegal activity. Later in

1980 the sheriff flew over the land

without seeing anything unusual. In fact

the only thing he could see from the air

was the fence around the property. (V.

II at 78 LF 9 &10). A real estate agent

and a land surveyor testified that the

land was fenced and posted with "No

Trespassing" signs.

The sheriff knew he was trespassing

as the following colloquy with the

sheriff shows:

Q: Okay and did you cross a fence

to get onto Mr. LoGiudice's property?

{refers to July 6, 1981 entry]

A: Yes we did.

(V. II at 62)

Q: Did you know you were on Mr.

LoGiudice's property when you crossed

the fence?

A: Yes, sir, we did.

Qs Did you have permission to be

on Mr. LeGivdice’s property?

A: Sure didn‘t.

The Court: What was your answer

Sheriff?

The Witness: That I didn't and I

didn't need it. (V. II at 63)

On July 6, 1981 the sheriff and other

law enforcement officers again entered

the property by climbing fences and

following an old logging road. The party

eventually reached a small clearing in

dense woods where they found marijuana

plants growing in chicken wire

enclosures. The plants were not visible

from any public area. In fact the

sheriff testified:

Q: Wow far away were you when you

_ first saw it? [the marijuana)

Az: Within ten feet of it.

Q: Could you see it before you got

within ten feet?

about fifteen or twenty feet. It

was real thick. But in order to see

the marijuana you had to get within

ten feet of the fence... .

Q: When you say ten or fifteen feet

of the fence, you're talking about

the chicken wire fence.

A: Yes.

Q: Around the marijuana tract.

A: Uh huh.

Q: Not the barb wire fence on the

property line?

A: No.

(V. II at 66-67)

The sheriff's party staked out the

area for four to six hours and then left |

without making any arrests. The party

returned the next day and staked out the ¥

area again. Uarms and Sarlovich were

arrested! and then a search warrant was

obtained based on what had been noted and

seized in the earlier entries.

LoGiudice was arrested later and also

charged with possession of the same

marijuana. A motion to suppress was

denied by the trial court. He was

convicted in a bench trial and sentenced

to five years imprisonment followed by

five years on probation. The Georgia

Court of Appeals affirmed the trial

court, relying specifically on the “open

fields" doctrine of Hester v. United

1. UWarms and Karlovich were tried

separately from LoGuidice. See Karlovich

v. State, 165 Ga. App. 761 (1983). They

are also petitioning this Court for

relief.

ee ae

States, 265 U.S. 57 (1923). LoGiudice

v.. State, 164 Ga. App. 709 (1982).

In granting certiorari the Supreme

Court of Georgia specified two questions

as being of interest:

1. Do the facts in this case support

a finding that the seized marijuana

was located in an area where

applicant had a “reasonable

expectation of privacy"? See U.S

v. Katz, 389 U.S. 347 (1967).

2. If the answer to question #1 is

yes, did the decision in U.S. v.

Katz, 389 U.S. 347 (1967) modify the

holding of Hester v. U.S., 265 U.S.

57 (1924), to require a search

warrant for the search of a secluded

field when a reasonable expectation

of privacy can be shown to exist in

that field? See Oliver v. U.S., 5l

any

USLW 3545 (1983).

These questions were never resolved

by the Supreme Court of Georgia because

the writ of certiorari was vacated

without opinion. However there is the

dissenting opinion by Justice Smith which

does answer these questions. He finds in

answer to the first question that:

Plainly appellant's actions

demonstrated a subjective expectation

of privacy in his fields. His land

was fenced at all borders, clearly

posted “no trespassing," and guarded

by two locked gates at the main

entrance. The two secluded fields

located within appellant's property

lines were surrounded by thick

forests and undergrowth. Neither

field was visible from public roads,

neighboring property, or the air. It

is difficult to imagine what other

precautions appellant could have

taken to protect his property against

intruders, short of erecting a ten

foot barricade around the land,

covering his entire farm with a dome,

or posting guards at all borders of

his property. Cf. Dow Chemical ey

Vv. gaited States, [ F. Supp. 4

(B.D. M °

)]

221 Ga. at 713.

In response to the key question of

whether Katz has modified Hester Justice

Smith stated, “In light of these

authorities, I would hold that a per se

application of the ‘open fields' doctrine

to validate warrantless searches of land

beyond the curtilage is unacceptable."

251 Ga. at 717.

REASONS FOR GRANTING THE WRIT

The Court Has Already Decided To

Review Other Cases To Determine

If There Is An “Open Fields"

Exception To The Warrant Requirement.

The “open fields" issue has become so

regularly litigated and such conflicting

results have been reached that this Court

has granted certiorari in two cases where

the resolution of that issue was critical

to the outcome. United States v. Oliver,

686 F.2d 356 (6th Cir. 1982) (en banc),

No. 82-15 and Maine v. Thornton, 453 A.2d

489 (Me. 1982) No. 82-1273. The obvious

dilemma is whether the “open fields rule”

of Hester v. United States, 265 U.S. 57

(1924) continues to have vitality after

the “reasonable expectation of privacy"

test applied in Katz v. United States,

389 U.S. 347 (1967).2 The Georgia Court

of Appeals held that there was flatly no

Fourth Amendment protection for out-of-

doors areas that were not within a

curtilage. This is the same position

taken by the en banc majority in the

Oliver decision. It is contrary to the

position taken by the Supreme Judicial

Court of Maine in Thornton.

2. Cases which have questioned the

Hester rationale and instead applied a

reasonable expectation of privacy

analysis are collected by Professor

LaFave, Search and Seizure §12.4(a) n.16

(1978). These cases following Wester are

in the same treatise at note 17. There

is a third category of modern “open

fields" cases, those which cite Hester as

good law but then make a reasonable

expectation of privacy analysis. Justice

Douglas’ opinion in Air Polluti

egVve

this makeweight citing ter. In

Giddens v. State, 156 Ga. - 258

(1980); cited by the Court of Appeals in

LoGiudice, 164 Ga.App. at 710; is another

genuflection to ter followed up by an

examination of t acts which shows the

expectation of privacy was unreasonable.

A remarkably dissimilar view of

petitioner's rights under the fourth

amendment is found in Justice Smith's

dissent from the order vacating the grant

of certiorari by the Georgia Supreme

Court. This scholarly opinion

(reproduced as an appendix) engages in

the kind of thorough analysis which is

necessary to apply the "reasonable

expectation of privacy" test to the

facts.

. Therefore this case is particularly

well suited to complement the argued

cases pending in this Court. Here there

are two absolutely conflicting opinions

arising from the same set of facts. The

only distinction is whether one applies

—-

”

an inflexible view of the Fourth

Amendment as if it atrophied in 1924 with

Hester or one concludes that the

reasonable expectation of privacy test is

intended to apply to all Fourth Amendment

questions.

Another reason that this case is

particularly “certworthy" is that

LoGiudice's expectation of privacy was in

fact so objectively reasonable.

The record shows:

1. The Sheriff trespassed prior to

the time of the arrests without observing

any illegal conduct.

2. The Sheriff's party had to cross

barbed wire fences and welded fences to

get onto the land.

3. The marijuana plants were in the

deep interior of a 345 acre tract of :

densely wooded land.

4. No one in the Sheriff's party saw

any marijuana plan s until they were

within ten feet of wine plants.

5. The Sheriff knew that he was on

LoGuidice's land but took the position

that he did not need anyone's permission

to be there.

6. The Sheriff had flown over the

property twice without observing any

illegal activity.

Aside from the characteristics of the

farm, the fact that the Sheriff was

acting on an unidentified tip and the

fact that there were no exigent

circumstances (as evidenced by the

Sheriff's party entering the land

unnoticed and returning the next day to

make arrests) cause this case to present

a pristeén"open fields" issue. The

Sheriff subjectively relied on “open

- Ad es Se

fields" and nothing short an exception to

the fourth amendment would excuse his

failure to seek a warrant. Tom

LoGiudice had an expectation of privacy

which was subjective (i.e. he really

intended his conduct to be hidden from

the public and law) and his expectation

of privacy is one that society is willing

to recognize as deserving of protection.

Thus LoGiudice meets the two part test of

Katz which Justice Harlan in his

concurring opinon described as:

a twofold requirement, first that a

person have exhibited an actual

(subjective) expectation of privacy

and, second, that the expectation

be one that society is prepared to

recognize as "reasonable" 389 U.S.

at 361.

Justice Smith succinctly stated the

application of this analysis to Hester in

his dissent.

I merely conclude, as have

many courts, that "Hester no longer

has any independent meaning, but

merely indicates that open fields

are not areas in which one tradi-

tionally might reasonably expect

privacy," United States v. Freie,

545 F.2d 1217 (9th Cir. 1976).

See LaFave, Search and Seizure

$2.4(a) (1978).

Another way of stating the

same conclusion is this: For the

"open fields* doctrine to apply,

the searched area must truly be

"open"--that is an area in which

no one has exhibited a reasonable

expectation of privacy.

251 Ga. at 718

This is also a case in which there is

a final judgment after the opportunity

for extensive examination and reflection

by the state courts. The Georgia Court ~

of Appeals conducted the direct appellate

review and squarely relied on Hester.

The Georgia Court of Appeals then denied

rehearing. The Georgia Supreme Court 4

first denied discretionary review on

certiorari with three dissenting votes.

; On rehearing the Georgia Supreme Court

% ¥<

mets

granted certiorari with three dissenting

votes. After briefing and argument the

Court vacated the order granting the

petition, with Justice Smith dissenting.

Thus LoGiudice gives this Court the

benefit of seriously considered judicial

review below.

This case is similar to Thornton in

that the policemen in Thornton also knew

that they were on private property. The

case is dissimilar in that LoGuidice had

more objective manifestations of his

expectations of privacy, i.e. more

fences, locked gates, and the property

was posted. As the Thornton court noted:

An old stone wall, an

old barbed wire fence and No

Trespassing signs exist around

the perimeter of the defendant's

property, including a sign where

the woods road enters the defendant's

property. It was, however, possible

to enter the defendant's property

without observing anything except

Pe epee ee

the stone wall." 453 A.2d 489, 491.

Even with this less than perfect

expectation of privacy the Thornton court

focussed on the officers knowledge that

they were on private property. LoGiudice

had taken precautions similar to those in

U.S. v. Oliver, but had the added indicia

of privacy that no illegal activity could

be obseryed from the air. Although

aerial surveillance played no part in the

Oliver case, the en banc majority in the

Sixth Circuit makes an "inevitable

discovery" argument that there could be

no reasonable expectation of privacy

since the marijuana plants could have

been seen from the air. 686 F.2d at 369

n.4. LoGiudice's plants were

undetectable from every place that the

public had a right to be.

7: ane

: ty

Pan

This Court also has pending the "open

fields" cases of United States v. Dunn,

674 F.2d 1093 No. 82-508 and Florida v.

Brady, 406 So.2d 1093 (Fla. 1981) No. 81l-

1636. This case is similar to Brady in

that a large tract of land was involved in

both instances. Brady's tract was

eighteen hundred acres while LoGuidice's

was three hundred forty five. Brady's

activity was arguably more public since

aircraft were landing on his ranch,

rather than just passive cultivation as

here.

The Dunn case pending in this Court

on the government's certiorari petition

involves a ruling that the area searched

was within the curtilage of a residence.

The marijuana patches here are in close

enough proximity to the two trailers on

the property to be arguably within a

is 23

curtilage, although the Georgia Court of

Appeals held that they were not. If the

marijuana patches here are not within a

bright line of curtilage (assuming there

can be such a thing) then their nearness

to the trailers at least enhances the

reasonableness of LoGuidice's expectation

of privacy.

CON CLUS ION

Two factors have made the “open

fields" doctrine ripe for review by this

Court. First, two decisions of this

Court, Hester and Katz, are variously

described as being in conflict with each

other or as reconcilable applications of

a consistent Fourth Amendment philosophy.

Second, the domestic cultivation of

marijuana and federal regulation of

industry have led to increased litigation

over Fourth Amendment protection of out-

of-doors areas. This Court should grant

the writ of certiorari because any rule ;

of law formulated from the facts of S:

Oliver and Thornton will be complemented

by application to the facts of this case.

Here the objective manifestations of an

expectation of privacy show that it was

reasonable and the searching officers

were admittedly relying on their belief

that the fourth amendment had no

application to their conduct.

Respectfully submitted,

BRUCE MALOY

Attorney for Petitioner

HORN & MALOY

1500 Healey Bldg.

57 Forsyth St. NW

Atlanta, GA 30303

404/523-4611

CERTIFICATE OF SERVICE

I hereby certify that I have this day

served three copies of this Petition For

Writ of Certiorari on the Georgia

Attorney General, Hon. Michael J. Bowers,

Room 132, State Judicial Building,

Atlanta, GA 30324 by properly posted U.S.

Mail.

This _—‘ day of February, 1984.

BRUCE MALOY

Attorney for

Petitioner LoGiudice

In the Supreme Court of Georgia

Decided:

39491. LOGIUDICE v. THE STATE

PER CURIAM.

After plenary consideration of this

matter, it is found not to satisfy the

criteria for the grant of certiorari and

the writ is therefore vacated.

All the Justices concur; except

Smith, J., dissenting.

In the Supreme Court of Georgia

Decided:

39491. LOGIUDICE v. THE STATE

SMITH, Justice.

I dissent from the court's dismissal

of the grant of certiorari in this case.

We granted certiorari to consider an

important Fourth Amendment question:

Whether the decision in Katz v. United

States, 389 U.S. 347 (88 SC 507, 19 LE 2d

576) (1967), modified the “open fields"

doctrine first announced in Hester v.

United States, 265 U.S. 57 (44 SC 445, 68

LE 898) (1924), to require a warrant of

the search of a secluded field when a

reasonable expectation of privacy can be

shown to exist in that field. I believe

that it did and, accordingly, would

reverse.

Appellant Thomas LoGiudice was

charged with possession of marijuana with

intent to distribute in violation of OCGA

§16-13-30. Prior to trial, he filed a

motion to suppress which was denied,

following a hearing, by the trial court.

Appellant was convicted after a bench

trial. On appeal, the Court of Appeals :

affirmed. LoGiudice v. State, 164 Ga. 4

App. 709 (297 SE2d 499) (1982). i

In 1979 appellant purchased a 345-

acre tract of land bordering on Georgia

Highway 74 in Upson County, eight miles

east of Thomaston. In the summer of

1980, Upson County Sheriff Merill Great-

house began receiving reports on activity

on appellant's land. Bully McDaniel,

owner Of a package store located on

Highway 74 near the property, told the

sheriff he had heard heavy earth-moving

equipment operating late at night on the

land. An unidentified source reported

that in the fall of 1980 appellant hired

a local contractor to dig a well on the

land, directed him to lay water pipe from

the well some 300 yards through heavy

woods, and then discharged him, explain-

ing that he would complete the job him-

self.

Based on this information Sheriff

Greathouse! entered appellant's land

sometime in the fall of 1980 to search

for illegal marijuana plants. At the

hearing on appellant's motion to sup-

press, the sheriff admitted climbing both

barbed wire and welded fences when enter-

ing appellant's property on this occa-

sion. He searched the area surrounding

appellant's trailer but found no mari-

juana. Later that fall, Sheriff Great-

house conducted an aerial search of

appellant's land. He was again unable to

detect any illegal activity, but noticed

that appellant was constructing a new

fence around his land.

On July 6, 1981, acting on a tip

from an unidentified source, the sheriff

and several Georgia Bureau of Investiga-

tion agents again entered appellant's

land without a warrant to search for

marijuana. According to Sheriff Great-

house, the group entered by a back route

by crossing a creek, climbing a barbed

wire fence, and following an old logging

road some 200 yards until they reached a

Clearing. There they discovered a half-

acre field of marijuana. The plants were

surrounded by dense chicken-wire fencing

material and were visible only from a

distance of ten feet or less. A 35-foot

path led from the field through dense

undergrowth to a travel trailer owned by

appellant and occupied by Tammy Harms.

The officers conducted a "“stake-out"” of

the field, remaining there for four and

one-half to six hours. While there they

observed Ms. Harms come onto the field

and "fondle" the marijuana plants. No

arrests were made at this time. The

officers returned to the field on the |

morning of July 7, 1981 and observed a

appellant, Ms. Harms and Stephen

Karlovich on the field. A search warrant

was obtained, and appellant, Harms and

Karlovich were arrested.

Evidence introduced at the suppres-

sion hearing showed that the front en-

trance to egiuasosie land was guarded by

two locked, welded iron gates and posted

with "no trespassing” signs; that the

marijuana field was not visible from

adjoining property or any public road,

and was located 300 feet from appellant's

nearest boundary line; that Sheriff

Greathouse, while disclaiming prior

knowledge of any "no trespassing" signs,

was fully aware that he had climbed a

fence or fences and entered appellant's

land without his permission. 4

The Court of Appeals, citing Giddens

v. State, 156 Ga. App. 258 (274 SE2d 595)

(1980), affirmed the trial court's denial

=’

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of appellant's motion to suppress. In so

doing, the court relied on the "open

fields" doctrine of Hester v. United

States, supra. In Hester, federal reve-

nue agents with prior information that

Hester was trafficking in illegal moon-

shine whiskey hid near Hester's residence

and observed him come out of the house

and hand one Henderson a bottle of moon-

shine. The agents sounded an alarm.

Hester grabbed a gallon jug from a nearby

automobile, and he and Henderson fled on

foot across a field, with the officers in

pursuit. In their haste to escape the

two suspects dropped the containers,

which broke and were later determined to

have contained illegal moonshine. On

appeal of the trial court's refusal to

suppress the agents’ testimony concerning

what had transpired in the field, the

Supreme Court rejected Hester's Fourth

Amendment claim. In a short opinion,

Justice Holmes wrote for a unanimous

Court that “the special protection

accorded by the Fourth Amendment to the

people in their ‘persons, houses, papers

and effects,’ is not extended to the open

fields. The distinction between the

latter and the house is as old as the

common law.>

In the sixty years since the deci-

sion in Hester, courts have, based on the

above language, fashioned as exception to

the Fourth Amendment's warrant require-

ment known as the “open fields” doctrine.

Simply stated, that doctrine holds that

the Constitution's protection of “per-

sons, houses, papers, and effects" does

not extend to activities conducted in any

area beyond the curtilage of a home. See

United States v. Oliver, 686 F2d 356, 363

(6th Cir. 1982) (Keith, J., dissenting).

The Court of Appeals has consistently

applied a per se rule upholding warrant-

less searches which were conducted in

areas outside a dwelling place or its

curtilage. See, e.g., Olson v. State,

166 Ga. App. 104 (303 SE2d 309) (1983);

Giddens v. State, supra; Quarles v.

State, 142 Ga. App. 394 (236 SE2d 139)

(1977); Patterson v. State, 133 Ga. App.

742 (213 SE2d 31) (1975).

Based on these authorities, the

state argues that a warrantless search of

land beyond the curtilage can never

violate the Fourth Amendment. This

position - which amounts to an assertion

that the “open fields” doctrine may be

used as carte blanche for warrantless ‘

searches of areas outside the curtilage -

the Hester decision and subsequent devel-

;

is simply untenable. Close analysis of a

“"

10a

opments in Fourth Amendment law demon-

strate that the “open fields" doctrine

does not apply to this case.

Hester was decided in 1924, prior to

application of the Fourth Amendment to

the states, Mapp v. Ohio, 367 U.S. 643

(81 SC 1278, 61 LE2d 575) (1961), and

before the advent of modern Fourth Amend-

ment theory as exemplified by Katz v.

United States, 389 U.S. 347 (88 SC 507,

19 LE2d 576) (1967). The Hester decision

also predated the development of the

“exigent circumstances" doctrine, see

McDonald v. United States, 335 U.S. 451

(69 SC 191, 93 LE 153 (1948), the “hot

pursuit” doctrine, see Warden v. Hayden,

387 U.S. 294 (91 SC 1642, 18 LE2d 782)

(1967), and the "plain view" doctrine,

see Coolidge v. New Hampshire, 403 U.S.

443 (91 SC 2022, 29 LE2d 564) (1971).

Were Hester not on the books and if the

A Sis j “a

lla

same factual situation arose today, no

court would need to create a special

"open fields” exception to the Fourth

Amendment. Today the case would turn on

the doctrine of hot pursuit. Hester and

his accomplice committed a crime in plain

view of police who were legally in place.

Based on the hot pursuit and exigent

circumstances doctrines, the police could

lawfully pursue and arrest the defen-

dants. Any expectation of privacy pos-

sessed by Hester had evaporated, since

police had probable cause to follow and

arrest, either in the open fields or the

house, as a crime was committed in plain

view and the officers were located in a

place they had a legal right to be. See

United States v. Santana, 427 U.S. 38 (96

SC 2406, 49 LE2d 300) (1976), Warden v.

Hayden, supra. ‘Moreover, the oft-quoted

“open fields" language of Hester was

l2a

unnecessary to the Court's decision in

that case. Central to the Court's analy-

sis was its observation that the moon-

shine containers had been abandoned by

the defendants prior to their inspection

by revenue agents, so that the defendants

could not complain of a search of the

abandoned property. "The defendant's own

acts, and those of his associates, dis-

closed the jug, the jar and the bottle -

and there was not seizure in the sense of

the law when the officers examined the

contents of each after it had been aban-

doned." 265 U.S. at 58. For these

reasons, it is unwise to rely on the

cutdated Hester decision in support of a

sweeping "open fields" exception to the

Fourth Amendment . ©

Cases decided since Hester v. United

States provide support for this position.

In Katz v. United States, 389 U.S. 347

l3a

(88 SC 507, 19 LE2d 576) (1976), the

Court retreated from the "constitutional-

ly protected area" analysis of Fourth

Amendment issues epitomized by the Hester

case and Olmstead v. United States, 277

U.S. 438 (48 SC 564, 72 LE 944) (1928).

Instead the Court focused on the indivi-

dual's reasonable expectation of privacy

in a given situation. As the opinion in

Katz states: "(T]he correct solution of

Fourth Amendment problems is not neces-

sarily promoted by incantation of the

phrase ‘constitutionally protected area'

+ « « For the Fourth Amendment protects

people, not places. What a person know-

ingly exposes to the public, even in his

own house 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.” In his

lé4a

concurrence in Katz, Justice Harlan

formulated a test which has become the

accepted standard for determining the

applicability of the Fourth Amendment to

a particular situation: "“[T]here is a

twofold requirement, first, that a person

have exhibited an actual (subjective)

expectation of privacy and, second, that

the expectation be one that society is

prepared to recognize as ‘reasonable.'"

389 U.S. at 361 (Harlan, J., concurring).

The court has applied Harlan's test in

subsequent decisions. See, e.g., Rakas

v. Illinois, 439 U.S. 128 (99 SC 421, 58

LE2d 387) (1978).

Thus in Katz the Supreme Court for

the first time recognized that the Fourth

Amendment's protection of “persons,

houses,papers, and effects, against

unreasonable searches and seizures .. ."

applied first and foremost to persons,

15a

not places. (Emphasis supplied). Since

Katz, the Supreme Court has time and time

again reaffirmed that it is one's legiti-

mate expectation of privacy, not the

particular area searched or seized, which

controls. See, e.g., United States v.

Salvucci, 448 U.S. 83 (100 SC 2547, 65

LE2d 619) (1980); Rakas v. Illinois,

supra.’ The per se "open fields'" doc-

trine, which holds that the Fourth Amend-

ment does not extend to areas outside a

dwelling place or its curtilage, is not

unsupportable, particularly in light of

recent Supreme Court cases recognizing

numerous areas Outside the curtilage

where one may legitimately expect his

privacy to be protected from government

intrusion. See Reid v. Georgia, 448 U.S.

438 (100 SC 2752, 65 LE2d 890) (1980)

(airport concourse); Ybarra v. Illinois,

444 U.S. 85 (100 SC 338, 62 LE2d 238)

FP a Se

48 SS eee

l6a

(1979) (tavern interior); Marshall v.

Barlow's Inc., 436 U.S. 307 (98 SC 1816, —

56 LE2d 305) (1978) (business premises) ;

United States v. Chadwick, 433 U.S. 1 (97

SC 2476, 53 LE2d 538) (1977) (automo-

bile); Katz v. United States, supra

(telephone booth). See also Hayes v.

State, 141 Ga. App. 706 (234 SE2d 360)

(1977) (apartment of another), Bowers v.

State, 151 Ga. App. 46 (258 SE2d 623)

(1979).

In the years since Katz, the Supreme

Court has not been called upon to address

the continuing validity of the Hester

decision.® The Court has, however, cited

Hester in two relatively recent deci-

sions. In Air Pollution Variance Board

v. Western Alfalfa Corp., 416 U.S. 861

(94 SC 2114, 40 LE2d 607) (1974), a state

health inspector trespassed on the out-

door premises of a business establishment

17a

in order to conduct a pollution test of

smoke being emitted from the factory's

chimneys. Citing the Hester case, the

Court held that the warrantless search

was permissible, noting that “the field

inspector was on respondent's property

but we are not advised that he was on

premises from which the public was ex-

cluded . . . He has sighted what anyone

in the city who was near the plant could

see in the sky - plumes of smoke." Id.

at 865. I think that the circumstances

of Western Alfalfa distinguish it from

the present case. There the property in

question was easily accessible and open

to the public, whereas appellant in this

case has taken elaborate precautions to

exclude the public from his land. Unlike

: the inspector in Western Alfalfa, Sheriff

Greathouse was not in an area accessible

to or visible by the public when he made

18a

his observations. I agree with the court

in State v. Thornton, 453 A2d 489 (Me.

1982), that the “open fields” doctrine is

inapplicable where the observing officer

is in a place where he has no right to be

when the incriminating observations are

made. See also United States v. Oliver,

supra; United States v. Holmes, 521 F2d

859 (5th Cir. 1975). In Harris v. United

States, 390 U.S. 234 (83 SC 992, 19 LE2d

1067) (1968), a per curiam opinion, the

Court cited Hester in support of the

proposition that “objects falling in the

plain view of an officer who has a right

to be in the position to have that view

are subject to seizure and may be intro-

duced in evidence.” Thus it can be seen

that the post-Katz Court has narrowed the

Hester case to apply only to observations

made from a place where the observing

officer was legitimately stationed.

—

19a

The recent case of Dow Chemical Co.

v. United States, 536 FSupp 1355

(E.D.Mich. 1982) is particularly instruc-

tive in resolving the issues presented by

this appeal. There the Environmental

Protection Agency was conducting an

investigation of a 2000-acre Dow manu-

facturing plan to check for excess pollu-

tant emissions. Following an on-site

inspection of the plant, the EPA hired an

independent contractor to conduct aerial

surveillance and take detailed photo-

graphs of the plant without Dow's know-

ledge. When Dow became aware of the

flyover, it sued the EPA, claiming that

the agency's warrantless aerial photo-

graphy of its plant constituted an un-

reasonable search in violation of the

Fourth Amendment. The court agreed,

holding that Dow's maintenance of fences,

locked gates, and elaborate security

pai

ie f

;

20a

systems around its plant manifested its

subjective expectation of privacy in the

plant. The court continued: “The Fourth

Amendment should not be read to require

the citizens or businesses of this nation

to take unreasonable measures to protect

themselves from surreptitious government-

al searches. This court is not prepared

to conclude that Dow must build a dome

over its entire plant before it can be

said to have manifested or exhibited an

expectation of privacy." (Emphasis sup-

plied). Id. at 1365. The court con-

cluded that Dow's manifested privacy

expectation was one that society was

prepared to accept as reasonable, and

rejected the EPA's assertion of the “open

fields" doctrine as justification for the

search. Summary judgment was granted in

favor of Dow, and an injunction entered

prohibiting the EPA from conducting

21a

further aerial surveillance and photo-

graphy of the Dow plant. See also

Wheeler v. State, SW2d (Tex. Ct. Crim.

App., decided 9/29/83).

In light of these authorities, I

would hold that a per se application of

the “open fields” doctrine to validate

warrantless searches of land beyond the

curtilage is unacceptable. Accord, Case

Comment, United States v. Oliver, 20

Am.Crim.L.Rev. 485 (1983); Note, How Open

Are Open Fields?, 14 U.Tol.L.Rev. 133

(1982). This is not to say that a war-

Sage search of a field will ordinar-

ily violate the Fourth Amendment. On the

contrary, the opposite is true, since “an

individual ordinarily has no constitu-

tionally protected right to expect

privacy in open fields," Casey v. State,

87 Nev. 413 (488 P2d 546) (1971). I

merely conclude, as have many courts,

22a

that “Hester no longer has any indepen-

dent meaning but merely indicates that

open fields are not areas in which one

traditionally might reasonably expect

privacy,” United States v. Freie, 545 F2d

1217 (9th Cir. 1976). See LaFave, Search

and Seizure §2.4(a) (1978).

Another way of stating the same con-

clusion is this: For the “open fields"

doctrine to apply, the searched area must

truly be “open” - that is, an area in

which no one has exhibited a reasonable

expectation of privacy. See Case

Comment, United States v. Oliver, supra,

at 493 (1983). Webster's Third New

International Dictionary defines "open"

as follows: "[S]o arranged or governed

as to permit ingress, egress, or passage

+ « « having no enclosing or confining

barrier . .. free from fences, bound-

aries, or other restrictive margins."

23a

Common sense dictates that a field not

meeting this definition is not "open" for

purposes of application of a per se “open

fields" exception to the Fourth Amend-

ment. By no stretch of the imagination

can appellant's land be characterized as

"free from fences, boundaries, or other

restrictive margins."

Having rejected the per se approach

used by the court below, it remains to

answer the question posed by the Katz

case: Whether, under these facts, appel-

lant possessed a reasonable expectation

of privacy in his fields that was

violated by Sheriff Greathouse and the

GBI. Katz dictates that we decide,

first, whether appellant has an actual,

subjective expectation of privacy; and

second, whether this expectation is one

that society is prepared to recognize as

reasonable.

24a

Plainly appellant's actions demon-

strated a subjective expectation of

privacy in his fields. His land was

fenced at all borders, clearly posted “no

trespassing," and guarded by two locked

gates at the main entrance. The two

secluded fields located within appel-

lant's property lines were surrounded by

thick forests and undergrowth. Neither

field was visible from public records,

neighboring property, or the air. It is

difficult to imagine what other pre-

cautions appellant could have taken to

protect his property against intruders,

short of erecting a ten-foot barricade

around the land, covering his entire farm

with a dome, or posting guards at all

borders of his property. Cf. Dow

Chemical Co. v. United States, supra.

25a

The second part of the Katz test

asked whether appellant's expectation of

privacy is one that society is prepared

to recognize as reasonable. In applying

this part of the test, courts have gen-

erally- found reasonable expectations that

are “normally shared by people in that

setting" and "fall within the limits of

what society can accept given its

interest in law enforcement,” United

States v. Oliver, supra, at 372 (Keith,

J., dissenting). The practice of erect-

ing a fence or barricade to maintain 4

privacy on land predates the Fourth 4

Amendment and appears to be nearly as old

as civilization itself. Nine hundred

years se, a medieval English landowner

4 whose property was overrun by intruders

had to at once assemble an army and

retake his property by force. If he

failed, the land became the lawful

26a

property of the usurper. See Bracton, On

the Laws and Customs of England, Vol. II,

p. 155 (Thorne ed. 1968). In time,

English landowners began to protect their

lives and property by building walls

around their homes, storage houses and

servants’ quarters. This was for the

purpose of forestalling surprise attacks

and to give the defending landowners the

advantage when attacked. This protected

area, which included the homestead and

its immediate surroundings, became known

as the “curtilage” at common law. See

Bare v. Commonwealth, 122 Va. 783 (94 SE

168) (1917).

In this country, the use of fences

and barricades has always played an

important part in defining landowners’

right to privacy. In the 1800's in the

Midwest and West, the open range was used

by everyone. Violence erupted when

“sibs jaime ioe Ge, a oS — =

27a

squatters, farmers and cattle ranchers

claimed the same land as their own. By

the 1880's, it became a common practice

to erect barbed-wire fences at one's

Claimed property line. See Billington,

Westward Expansion, 595-98 (4th Ed.

1974). <A landowner's erection of such a

fence said, in effect: "This land is

mine, I intend to put it to use, and I

demand that all respect my ownership and

privacy." More recently, enactment of

"no fence” laws in this country meant

that a landowner no longer had to con-

struct a fence to protect his farmlands

and his privacy from another's domestic

animals which are left to run free. See

1933 Code of Georgia, §62-501 et seq.;

Thombley v. Hightower, 52 Ga. App. 716,

719 (184 SE 331) (1935). The law has

evolved through history toward general

recognition that an owner of land has a

28a

right to use his land as he pleases, free

from trespass or intrusion, without

having to build a fort around it as in

common law days. Appellant's erection of

fences, no trespassing signs, and locked

gates around his land, then, should be

recognized for what it is -- a reasonable

and established method of protecting his

privacy in the enclosed land. This is

particularly true in agricultural states

such as Georgia, where one's land is

often his only source of livelihood.

LoGuidice's expectation of privacy is one

that society in general, and Georgia in

particular, recognizes as “reasonable.”

One commentator has aptly observed

that application of the Katz standard is,

at. bottom, “a value judgment. It is

whether, if the particular form of sur-

veillance practiced by police is permit-

ted to go unregulated by constitutional

29a

restraints, the amount of privacy and

freedom remaining to citizens would be

diminished to a compass inconsistent with

the aims of a free and open society."

Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn.L.Rev. 349, 403

(1974).

In my view the Fourth Amendment at a

minimum means that law enforcement

officers may not conduct "fishing expedi-

tions" on private, posted and fenced

property, trespassing thereupon at will

for a period of several months until they

discover “open fields" containing incri-

minatory evidence. When conducted on

fenced property, such activity is clearly

inconsistent with the aims of a free and”

open society, and flies in the face of a

reasonable, clearly exhibited expectation

of privacy. Amsterdam, supra. Indivi-

ey,

pe a

A ;

30a

LoGiudice's would, I believe, expect

their privacy to be invaded only upon

issuance of a valid search warrant.

Moreover, this reasonable expectation of

privacy would not unduly hamper legiti-

mate law enforcement and investigative

activities, such as verifiable tips from

reliable informants, or aerial fly-over ;

searches from appropriate heights. See,

e@.g-, Reece v. State. 152 Ga. App. 760

(264 SE2d 258 (1979); People v. Sneed, 32

Cal. App. 3d 535, 108 Cal. Rptr. 146

(1973).

Because in this appeal the state has

relied solely on the “open fields" excep-

tion in its attempts to validate the

warrantless search of appellant's land, I

will address other possible justifica-

tions for the search only briefly. The

state, of course, assumes the burden of

proving that an exception to the Fourth

3la

Amendment's general warrant requirement

applies. United States v. Jeffers, 342

U.S. 48, 51 (72 SC 93, 96 LE 59) (1951);

OCGA § 17-5-30(b). It is interesting to

note that Sheriff Greathouse and the GBI

agents surreptitiously entered appel-

lant's land on two occasions, making

prolonged observations, before seeking a

search warrant. This conduct was in

itself a tacit admission that the

officers lacked the probable cause neces-

sary to secure a search warrant when they

first trespassed on appellant's land.?

Nor is there any evidence of exigent cir-

cumstances, such as possible destruction

of the marijuana plant, which would

excuse the officers' failure to obtain a

warrant prior to entering the land. The

reports from local citizens concerning

heavy equipment operations at night on

the land and the laying of water pipe,

coupled with an anonymous, uncorroborated

tip of illegal activity on the land, does

not amount to probable cause to issue a

search warrant. Operation of heavy farm

machinery, even at night, is commonplace

in today's farming world. The reports

concerning appellant's water pipes are

likewise not indicative of any criminal

activity. In addition, there is no

evidence in the record that reliable

source ever observed marijuana growing on

the land.

It is inconceivable to me that this

court would condone the outrageous,

illegal investigative activities carried

on by law enforcement officials in this

case. To sanction this search is to say

that law enforcement officers may freely

trespass on fenced, posted, secluded

rural property without regard for the

privacy of persons under the Fourth

err Ne Ss

a es

Fé

_ sili ! Bs

33a

Amendment. This view too easily defers

to the judgment of officers of the law

who are, after all, only human, and are

sometimes overzealous in their pursuit of

\“ehe often competitive enterprise of

ferreting out crime,” Johnson v. United

States, 333 U.S. 10, 14 (68 SC 367, 92 LE

436) (1948). Such a view also derogates

unnecessarily from the importance of the

rights and values the Fourth Amendment

was designed by the founding fathers to

protect--rights just as important as

freedom of religion, of speech and the

press, the right to a jury trial and to

trial counsel, due process, freedom from d

quartering soldiers in one's home in

peacetime, and the other precious liber-

ties safeguarded by the Bill of Rights.

As Justice Brandeis pointed out in his

famous dissent in Olmstead v. United

States, 277 U.S. 438 (48 SC 564, 72 LE

34a

944) (1928), the Fourth Amendment guaran-

tees "the right to be left alone - the

most comprehensive of rights and the

right most valued by civilized men." Id.

at 478.

I would therefore reject the per se

"open fields" doctrine employed by the

Court of Appeals and sanctioned by this

court in this and previous cases.

Because the seized evidence was observed

by officers who were in a place they had

no right to be in violation of appel-

lant's justifiable expectation of

privacy, those officers' observations and

the seized evidence should have been sup-

pressed. To hold otherwise makes the

"open fields" doctrine a carte blanche

authorization to law enforcement officers

to trample and roam at will over fenced,

posted private property outside of the

curtilage without a warrant. Where a

35a

landowner has demonstrated to outsiders

that he intends to shut them out, some

degree of constitutionally protected

privacy attaches. The protection against

illegal searches and seizures accorded by

the Fourth Amendment does not vanish

where the ouekaiaes line ends.

In conclusion, I can only echo the

sentiments of Justice Brennan: “Although

I recognize that the traffic in illicit

drugs is a matter of pressing national

concern, that cannot excuse this Court

from exercising its unflagging duty to

strike down official activity that ex-

ceeds the confines of the Constitution.

In discussing the Fourth Amendment in

Coolidge v. New Hampshire, 403 U.S.

(1971), Justice Stewart stated: ‘In

times of unrest, whether caused by crime

or racial conflict or fear of internal

' subversion, this basic law and the values

36a

that it represents may appear unrealistic

or “extravagant” to some. But the values

were those of the authors of our funda-

mental constitutional concepts.' Id., at

455 (plurality opinion). We must not

allow our zeal for effective law enforce-

ment to blind us to the peril to our free

society that lies in this Court's dis-

regard of the protections afforded by the

Fourth Amendment." Florida v. Royer,

U.S. (103 SC 1819, 75 LE2d 229) (1983)

(Brennan, J., concurring specially).

I respectfully dissent.

37a

ENDNOTES

A Clearly Sheriff Greathouse is a

"law enforcement officer" to whom the

Fourth Amendment applies. See State v.

5) (Fourth Amendment exclusionary

rule applies to “action taken by law

enforcement personnel"); OCGA § 15-16-

l(a) ("the sheriff is the basic law

enforcement officer of the several

counties of this state .. .").

2- If Sheriff Greathouse had the

right to be on the land in the first

place, he needed no search or arrest

warrant. Anyone violating the law in his

presence would be subject to arrest and

search under the "plain view" doctrine.

3. Harms and Karlovich were tried

separately from appellant. See Karlovich

v. State, 165 Ga. App. 761 (297 SE

4. Apart from its Fourth Amendment

implications, this conduct clearly

violated the criminal trespass statute,

see OCGA § 16-7-21, and constituted a

common-law trespass, see OCGA § 51-9-l.

he This oft-quoted remark is mis-

leading, and it reflects the dearth of i

analysis in the Hester opinion. There 4

was, of course, no Fourth Amendment at i

the common law. In fact, the oppressive

? treatment persons received in England and

in the colonies prior to the Revolution

" was a leading reason the founding fathers —

& adopted the Bill of Rights. See Boyd v.

38a

524, 29 LE 746) (1886); Note: How Open

Are The Open Fields?, 14 U.Tol.L.Rev. 133

(1982).

$. Apart from any consideration of

the Supreme Court's interpretation of the

Fourth Amendment in Hester and subsequent

cases, this court is free, under the

Georgia Constitution, to provide for

greater protection of individual rights

than under federal law. See Oregon v.

Hass, 420 U.S. 714, 719 (95 SC 1215, 43

LE2d 570) (1975); Brennan, State Consti-

tutions and the Protection of Individual

Rights, 90 Harv.L.Rev. 489 (1977). See

also Wheeler v. State, SW2d

(Tex.Ct.Crim.App., decided 9/29/83).

Lf The “open fields” doctrine, as

interpreted and employed by most courts,

does not place proper emphasis on the

“personal privacy” component of the

Fourth Amendment recognized in Katz.

Instead the doctrine clings to the out-

moded “constitutionally protected area"

analysis of Olmstead, supra. See United

: States v. Oliver, 686 F2d 356, 363 (1982)

a (Keith, J., dissenting).

} 8- certiorari has been granted, :

3 however, in United States v. Oliver, 686 %

F2d 356 (1982), 51 USLW 3552. That case 4

* is currently pending in the Supreme mr:

¥ Court.

. 9.

7 See n.4, supra. It is important

% to remember that “probable cause" and

a “reasonable expectation of privacy," i

,. while interrelated, are separate and ae

distinct concepts of law. An officer of ‘4

the state with probable cause, that is, a

reasonable belief that a crime has been

or is being committed, Brinegar v. United

‘ i ena oN OB Saas, :

TOPPER Re OR Ree st Be eee » _ ee

39a

States, 338 U.S. 160, 175-76 (69 sc 1302,

93 LE 1879) (1949), may obtain an arrest

warrant or a search warrant. Once

probable cause has been shown, the in-

dividual's expectation of privacy

vanishes. The concepts are thus in a

sense mutually exclusive ones, and cannot

coexist in the same point in time.

10. History shows that the main

impetus behind the adoption of the Bill

of Rights in 1791 was the protection of

individual civil rights from unwarranted

governmental intrusion. In Congressional

debates on the proposed amendments, James

Madison stated: "I believe the great

mass of the people who opposed [the

Constitution as originally ratified]

disliked it because it did not contain

effectual provisions against the en-

croachment on particular rights and those

safeguards which they have long been

accustomed to have interposed between

them and the magistrate who exercises the

sovereign power.” Annals of Congress,

lst Cong., lst Sess., p. 450. See also

Lasson, The History and Developement of

the Fourth Amendment 87 (1937).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.