A search warrant was issued for dumpsters on a “large commercial property” for evidence of asbestos dumping in violation of EPA law. Accepting that there might be a “business curtilage,” the court finds this search warrant didn’t violate any reasonable expectation of privacy because of the location of the dumpster and all the people, including tenants, coming and going through the area that was ungated. The search warrant also wasn’t stale, nor was Franks violated. United States v. Chopra, 2014 U.S. Dist. LEXIS 166991 (W.D. N.Y. July 10, 2014):
Mr. Moscati also testified that one of the purposes of his visits to the premises at 1815 Love Road related to the use of the “rear storage yard by various tenants for various activities.” A number of the tenants were engaged in light industrial work and “many of [them] would use the exterior space to store stone or other landscape or exterior site work construction materials.” T2, pp. 96, 122, 151-152, 180. When asked by this Court “who controlled the gates,” if anyone, he did not know. T2, p. 180. No evidence has been presented establishing who, if anyone, maintained control of the gates in question; nor has there been any evidence presented by the defendants that the gates in question were closed on April 19, 2011 so as to prevent unauthorized access to the premises at 1815 Love Road by members of the public.
S.A. Derx testified that he and S.A. Conway observed a “number of trucks that were going into the back of the premises” at 1815 Love Road on April 19, 2011 for the purpose of “what appeared to be drop some fill (sic)” because these trucks “went in with something on the truck and came off (sic) empty.” T1, pp. 38-40, 108, 199. He further testified that the trucks “just drove in” and there was no “type of gate that restricted these dump trucks from entering into the site” at 1815 Love Road. T1, pp. 40-41. Derx further described the area where the trucks were driving as “an open parking lot” because he had observed “vehicles going in and out of it” in that “anybody could have driven through it that day.” T1, pp. 40-41, 124, 138. He and S.A. Conway also testified that when they drove onto the premises at 1815 Love Road on April 19, 2011, there were no gates restricting their access; nor were there any signs restricting their access; there were no visible “no trespassing” signs nor were there any fences in the area they traversed that restricted their access to the site. T1, pp. 45-46, 60-62; T2, pp. 54, 68. Both Derx and Conway admitted seeing a “gate” in the area where the dumpsters were located but described this gate as being “open.” T1, pp. 46, 60-62, 124, 126; T2, p. 29. At no time were they blocked in their initial drive around the premises at 1815 Love Road and they “just drove right on through.” T1, p. 135. Lastly, S.A. Derx testified that he “did not observe anything that was restricting access to that property” while they were executing the search warrant on April 19, 2011. T1, p. 86.
In considering the testimony of S.A.s Derx and Conway and Matthew Moscati along with Government Exhibits 1 and 2, Defendant Chopra’s Exhibits 7, 9 and 10, I find that on April 19, 2011, the “gates” depicted in those exhibits were open and in no way indicated to the public that travel in those areas was prohibited or restricted. I also find that there were no signs or placards or warnings of any kind posted on the property on April 19, 2011 indicating that the public was prohibited from entering the open premises at 1815 Love Road.
The premises at 1815 Love Road consists of a multi-building complex with multiple tenants surrounded by a very large open area. This “open area” better fits within the legal concept of an “open field” rather than the legal concept of “curtilage.” “In Oliver, the Court described the curtilage of a dwelling as ‘the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life'” (citations omitted). The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a “large commercial operation” such as existed at 1815 Love Road on April 19, 2011. Dow Chemical v. United States, 476 U.S. 227, 236, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986). Since an “open field” is neither a “house” nor an “effect,” the investigators’ intrusion onto the premises at 1815 Love Road on April 19, 2011 was not an unreasonable search “proscribed by the text of the Fourth Amendment.” Oliver v. United States, supra at 177; United States v. Dunn, supra at 303-304.
Furthermore, the commercial buildings at 1815 Love Road were occupied by a number of different commercial tenants who had access to and made use of the outdoor or open areas around the buildings in carrying out their business activities. Such multi-tenant access and use certainly vitiates any concept of a “reasonable expectation of privacy” belonging to the defendants in such open areas. The defendants herein have failed to present any evidence that adequately and legally “manifested a subjective expectation of privacy” in the open area surrounding the buildings at 1815 Love Road on April 19, 2011. United States v. Titemore, supra. Therefore, their argument that an illegal trespass was committed in violation of the Fourth Amendment by S.A.s Derx and Conway is rejected.
Because the agents’ presence on the premises located at 1815 Love Road, Grand Island, New York on April 19, 2011 did not constitute a Fourth Amendment violation, they were not required “to shield their eyes” when passing by the dumpsters and dumpster area in question. California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Based on his experience of 23 years as an investigator of asbestos abatement projects and asbestos disposal issues, S.A. Derx viewed materials that had been placed in open view which he recognized as being asbestos-containing material under conditions that constituted a violation of law thereby forming a proper basis for seeking the search warrant of April 19, 2011.
