W.D.Va.: Use of carpenter’s scope to look in a locked trailer was an unreasonable search

Officer’s entry into an open field and looking in the window of a locked trailer was not a search. The defendant had an expectation of privacy in the trailer, however. Inserting a carpenter’s scope to see inside was a search. “[T]his time, brought, I call it a carpenter’s scope, but it’s kind of got a long tube on it with a monocular, just one eye piece, and it kind of uses–it’s probably about two feet long and I could stick it through the crack where I could see in the … back of the trailer and that’s where I could see it was a tremendous amount of jugs there.” United States v. Smith, 623 F. Supp. 2d 693 (W.D. Va. 2009):

Though Agent Calhoun’s entry onto the Pittsylvania County property was not a Fourth Amendment violation, the court does find that Jody Smith had a reasonable expectation of privacy in the locked trailer located on that land. See United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (affirming district court’s finding that a defendant had a reasonable expectation of privacy in a barn located on an “open field”). However, Agent Calhoun’s limited observation of the trailer’s interior on March 1, 2006 was not a “search” under the Fourth Amendment, as he did not physically enter the locked trailer but merely peered inside the trailer with the aid of a flashlight. See Wright, 991 F.2d at 1186 (although defendant had a reasonable expectation of privacy in the barn, an officer could still “stand outside and peer into the barn through an open window or door” without a search warrant); United States v. Dunn, 480 U.S. 294, 304 (1987) (use of a flashlight to observe barn located on an open field “did not transform [officers’] observations into an unreasonable search within the meaning of the Fourth Amendment”).

. . .

As for the second observation of the trailer on March 9, 2006, the court finds that this was a Fourth Amendment search. The “carpenter’s scope” was inserted into the locked trailer. It did more than illuminate; it made visible inside the trailer what could not be observed from the outside the trailer with the naked eye by physically breaching the trailer’s walls. See Wright, 991 F.2d at 1186 (while an officer could peer through a barn’s window or door, the defendant’s “reasonable expectation of privacy meant that the officer could not enter the barn without the benefit of a search warrant.”) (emphasis added). Contrary to the government’s argument, this intrusion goes far beyond mere use of a flashlight or binoculars from a location where an officer has a lawful right of access