Animal control officers’ plain view did not authorize entry into the curtilage to seize animals and make further observations

Animal control officers entered the curtilage without a warrant claiming plain view. Morgan v. State, 285 Ga. App. 254, 645 S.E.2d 745 (2007):

(a) The Curtilage. Morgan contends that the trial court erred in concluding that the warrantless search of the curtilage surrounding his home was justified under the plain view doctrine. We agree that the plain view doctrine, standing alone, did not provide a sufficient basis for the search of the curtilage.

It is true that the deputy’s initial observations of malnourished and mistreated animals occurred while he was standing in the driveway and on the public road, a vantage point that “breached no right of privacy of [Morgan].” State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981). See Sirmans v. State, 244 Ga. App. 252, 254-255 (2) (b) (534 SE2d 862) (2000) (officer’s observations of mistreated animals from public roadway did not violate defendant’s Fourth Amendment rights); Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986) (officer’s observations made while on driveway did not violate defendant’s Fourth Amendment rights since officer had taken “the same route as would any guest, deliveryman, postal employee, or other caller”) (citation and punctuation omitted). These initial observations constituted “a lawful, nonsearch plain view situation” supporting a finding of probable cause to suspect that the crime of cruelty to animals was being committed on Morgan’s property. (Punctuation and footnote omitted.) Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006). See Sirmans, 244 Ga. App. at 254-255 (2) (b) (plain view observation of animals in deprived condition supplied officer with probable cause to search defendant’s property).

However, the officer’s initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan’s backyard–a location undisputably within the curtilage surrounding the residence–and take steps culminating in the dogs there being seized and removed from the property.

Consent to enter to look for a suspect was valid consent. Defendant was never in custody, and “Appellant is not a ‘newcomer to the law’, having a prior criminal history.” State v. Boone, 2007 Ohio 2212, 2007 Ohio App. LEXIS 2053 (5th Dist. May 7, 2007).*

Officer lacked reasonable suspicion that the passenger was guilty of anything when he detained her. False name arose, and a violation of a no-contact order arose from that. State v. Allen, 138 Wn. App. 463, 157 P.3d 893 (2007):

¶24 Second, Lowrey did not have a lawful basis for a reasonable suspicion that the passenger was Allen when he asked Peggy to come to the rear of the vehicle. At this point, Lowrey had a reasonable suspicion because the false name Ben Haney did not register on the CAD databases. But this evidence was derived from Allen’s unlawful seizure and inquiry and, therefore, it must be excised from the review of Lowrey’s reasonable suspicion. Without knowledge that the passenger provided a false name, Lowrey did not possess reasonable articulable facts to believe that the no-contact order referred to the passenger. For these reasons, the identifying information Lowrey obtained from Peggy does not qualify as a lawful independent source of evidence that gave rise to the probable cause needed to arrest Allen.