OH9: Flyover gave PC for marijuana grow in backyard, but police needed a warrant to enter

After a marijuana eradication flyover, officers entered defendant’s fenced back yard without a warrant to seize plants. The warrantless entry violated the Fourth Amendment. They had probable cause, but the state was seeking to have defendant disprove exigency when it has the burden of proof. Reversed. State v. Littell, 2014-Ohio-4654, 2014 Ohio App. LEXIS 4538 (9th Dist. October 22, 2014):

[*P19] While the deficiencies in the record in this matter are troubling, even more troubling is the State’s insistence that its officers were within their right to enter Mr. Littell’s backyard. According to the State, its officers did not need a warrant to knock on Mr. Littell’s back door because they “were in an area where any ‘reasonably respectful citizen’ was permitted to go.” It appears to be the State’s position that its officers, knowing full well that Mr. Littell had contraband in his backyard, could enter his backyard for the stated purpose of establishing contact and, as soon as they saw the contraband they knew to be there, could lawfully seize the contraband. The Fourth Amendment cannot possibly be construed to condone such a practice.

[*P20] Police officers may approach a home, knock on its front door, and speak to its residents without a warrant “because that is ‘no more than any private citizen might do.'” Jardines, 133 S.Ct. at 1416, quoting Kentucky v. King, 131 S.Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011). Custom dictates that, absent indications to the contrary, every homeowner has given an implied license to visitors for just that purpose. Jardines at 1415. That license “typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. The license “is limited not only to a particular area but also to a specific purpose.” Id. at 1416. “[T]he * * * social norms that invite a visitor to the front door do not invite him there to conduct a search.” Id. See also id. at 1422-1423 (Alito, J., dissenting) (“A visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use.”). Quite apart from any reasonable expectation of privacy analysis, “[t]hat [] officers learned what they learned only by physically intruding on [a person’s] property to gather evidence is enough to establish that a search occurred.” Id. at 1417.

. . .

[*P22] “[T]he ultimate touchstone of the Fourth Amendment is reasonableness * * *.” (Internal quotations and citations omitted.) Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). Under the facts of this case, the police failed to act reasonably. Agent Nusser relayed to the officers on the ground that he had not seen anyone around Mr. Littell’s residence the entire time the helicopter hovered there. The suspected contraband in this case was marijuana, not a dangerous implement. Moreover, nothing in the record even suggests that any evidence would have been destroyed if the police had obtained a warrant before entering the backyard. See Johnson v. U.S., 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948). The only exigent circumstance the State argued was plain view. The plain view doctrine does not apply, however, because the police were not within their right to enter Mr. Littell’s backyard. See Jardines, supra. See also Horton, 496 U.S. at 136-137 (plain view requires that officers “be lawfully located in a place from which the object can be plainly seen” and have “a lawful right of access to the object itself”).

[*P23] Had the police first secured a warrant for the backyard based on the aerial observation, the police then could have lawfully entered the backyard and the items there, including the ventilation system, would have been in plain view. The officers could have then used their additional observations as probable cause for a warrant to search the house. It was unreasonable for the police to enter Mr. Littell’s backyard and seize evidence without a warrant. See State v. Mims, 6th Dist. Ottawa No. OT-05-030, 2006-Ohio-862, ¶ 14-26; State v. Vondenhuevel, 3d Dist. Logan No. 8-04-15, 2004-Ohio-5348, ¶ 15-20. The trial court, therefore, erred when it denied Mr. Littell’s motion to suppress.