# Petition — Logiudice v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1454%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 950 ## Text 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? : ae ; 4 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 ii ~— = 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 -) 6a Ae _ \ — — oo, “ae” ea ew me Ck” ae ea a - ¥e 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). 9a 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 4 ws 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 oe 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 oa 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, ¢ mn 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. ,. a 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).