E.D.Tex.: “The open fields doctrine allows searches based upon only visual observation.” Using a board to stir a tank was a search

A US Fish and Wildlife officer “interviewed Josh Monceaux who revealed that Williams fishes for and catches alligator snapping turtles in Texas and then sells them from his home in Elton, Louisiana. Monceaux also reported that Williams [G]oogle [E]arth* image of Williams’ property. [sic]” The officer went to the property, and he found the turtle tanks 40 meters from defendant’s house on the property. “The open fields doctrine allows searches based upon only visual observation.” Using a board to probe a tank for turtles was an unreasonable warrantless search under Hicks, but the plain view of turtle shells and seizure of bones was reasonable. United States v. Williams, 2017 U.S. Dist. LEXIS 130611 (E.D. Tex. July 27, 2017), adopted, 2017 U.S. Dist. LEXIS 130132 (E.D. Tex. Aug. 15, 2017):

The open fields doctrine allows searches based upon only visual observation. U.S. v. Beene, 818 F.3d 157, 170 (5th Cir. 2016) (citing Husband v. Bryan, 946 F.2d 27, 29 (5th Cir. 1991) (Fourth Amendment violation to dig up land where warrant only authorized digging up of wells) (citing Donovan v. Dewey, 452 U.S. 594, 602-03, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981) (Fourth Amendment applies to searches of mines)); see also Allinder v. State of Ohio, 808 F.2d 1180, 1186 (6th Cir.) (open fields doctrine limited to visual inspection and Fourth Amendment applies to search of apiaries in a field), app. dism’d, 481 U.S. 1065, 107 S. Ct. 2455, 95 L. Ed. 2d 865 (1987); see also U.S. v. Dunn, 480 U.S. 294, 302-05, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987) (“there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields,” so the Fourth Amendment does not prevent officers from standing in a field and shining a flashlight into the defendant’s barn); U.S. v. Beene, 818 F.3d 157, 163 (5th Cir. 2016) (2016) (dog sniff is not a search in an open field because it is not a physically invasive inspection).

The open field doctrine does not expand beyond mere visual inspections because a “physically invasive inspection is simply more intrusive than purely visual inspection.” Bond v. U.S., 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000); see also Kee v. City of Rowlett, 247 F.3d 206, 217 n. 21 (5th Cir. 2001) (“[T]he open fields doctrine has not been expanded beyond observational searches.”); Allinder v. Ohio, 808 F.2d 1180, 1185 (6th Cir. 1987) (“In decisions following Katz, the Supreme Court has consistently adhered to the open field doctrine while at the same time recognizing that it is limited to sights seen in the open field.” (internal quotation marks omitted)); U.S. v. Bellina, 665 F.2d 1335, 1343 n. 7 (4th Cir. 1981) (when analyzing “observations made on [a] defendant’s property … [e]ach intrusion must be examined on its own peculiar facts and each must be analyzed in relation to whether the person challenging the intrusion had a legitimate expectation of privacy in the area or thing observed.”). For example, the search of an uncovered boat well away from the defendant’s house met the open fields doctrine. U. S. v. Scott, 544 F. App’x 303, 306 (5th Cir. 2013). However, searching an unlocked trunk of a parked junk car in a field did not meet the open fields doctrine. See U.S. v. Torres, DR-06-CR-076-AML, 2016 U.S. Dist. LEXIS 142950, 2007 WL 9655700, at *7 (W.D. Tex. May 11, 2007), aff’d, 346 F. App’x 983 (5th Cir. 2009).

In the instant case, the April 2, 2015 search went beyond mere observation when Agent Stinebaugh used a board to search the bottom of the tank because he could not observe with his naked eye anything through the murky water. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (holding that moving stereo equipment in plain view a “few inches” to record the equipment’s serial numbers constituted a search). The second search on August 3, 2015, however, fits squarely within the open fields doctrine. There was no top on the tank, the turtles were not submerged under water, and they were clearly visible to Agent Steinbaugh without any assistance. See U.S. v. Perry, 95 F. App’x 598, 602 (5th Cir. 2004) (contents of shed were plainly visible from the outside because it lacked a full wall on one side).

With regard to the turtle bone seized during this second search, “[i]t is well-established that under certain circumstances, officers may seize evidence in plain view without a warrant.” U.S. v. Perry, 95 F. App’x 598, 601 (5th Cir. 2004) (marijuana plants and clipboard seized during open fields search were in “plain view”) (citing Horton v. California, 496 U.S. 128, 134, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)). The plain view doctrine will support a warrantless seizure if: (1) the officer was lawfully in the position from which the object was plainly seen; (2) the object was in plain view; (3) the object’s incriminating nature was immediately apparent—i.e., the officer had probable cause to believe the object was contraband or evidence of a crime; and (4) the officer had a lawful right of access to the object itself. U.S. v. Perry, 95 F. App’x 598, 601 (5th Cir. 2004). The undersigned finds that the seizure in this case satisfies each of these elements. The only question is whether this second search should be excluded as fruit of the poisonous tree, which is addressed in the next section.

* Notice “Google Earth” not capitalized in the original. It should be as a trade name.