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SEARCH & SEIZURE – FLASHLIGHT SEARCH –
UNINVITED PRESENCE AT HOME
Docket Nos. 16-1-08 Bncr and 1-1-08 Bncs
STATE OF VERMONT
v.
JAMES HARTE
Bennington District Court
July 9, 2008
Bradley
D. Myerson, Esquire
5261 Main Street P.O. Box 915 Manchester Center, Vermont
05255
E-mail:
cmylwyr@sover.net
Website:
www.mylwyr.com
HAYES, J. The defendant has moved to suppress all of the evidence obtained by the police after they entered onto the defendant’s residence property, arguing that the entry, and observations/seizures of evidence, were unsupported by warrant, exigent circumstances, or consent, and therefore violated his rights under the U.S. and Vermont Constitutions. He has also moved to dismiss the charge of driving under the influence for lack of prima facie case, arguing that there is insufficient evidence to demonstrate that he was under the influence of intoxicants at the time of operation, and has moved to dismiss the charge of resisting arrest, arguing that there is insufficient evidence to demonstrate that he acted intentionally. The State opposes all of these motions.
Findings of Fact
An evidentiary hearing was held on the motion on April 17, 2008. Based upon the preponderance of evidence presented, the court makes the following findings of fact.
On December 24, 2007, Officer John Zink of the Bennington Police was dispatched to the Short Stop gas station and convenience store at the intersection of South and Depot Streets because of a complaint of a hit and run accident. When he arrived there, he saw a vehicle in the parking lot, with visible body damage. He met with the owner of the vehicle, Kelly Gardner, who told him that a man in a red SUV had backed into her vehicle and then driven away. She reported that she had approached and remonstrated with him after he hit her vehicle, but that he ignored her and drove away. She was able to provide his license plate number. Another witness at the gas station confirmed that she had seen the collision, noted the plate number (matching that reported by Ms. Gardner), and saw the vehicle drive away.
Officer Zink “ran” the plate number through the DMV database, and learned that it was registered to the defendant, whose residence address was on Main Street. After assisting Ms. Gardner with an accident report, he drove to the defendant’s residence, into the driveway, and parked adjacent to the garage in the rear of the house. There was nothing blocking the driveway, and there were no signs barring entry. Police records show that the accident report was received at about 5:15 p.m., and that Officer Zink was at the defendant’s home at about 6:08 p.m. When he arrived at the defendant’s home, he looked into the garage windows, and saw that the plate number matched that reported by Ms. Gardner and the other witness, and that the vehicle appeared to have some damage on the rear driver’s side bumper.
The defendant’s home has a front door facing Main Street, and also a back door, which the defendant typically uses when he drives in. Tradespeople typically use the front door.
After peering into the defendant’s garage, Officer Zink approached the back door of the defendant’s home. The rear entrance to the home was up a small staircase, where there was a door to an enclosed “mudroom” type back porch, and then yet another doorway leading directly into the kitchen. The exterior door into the porch was closed, and the door into the kitchen was standing ajar when Officer Zink approached. Officer Zink saw lights on inside, and could hear noise indicating that someone was inside. He knocked repeatedly, with no response. The defendant then walked past the kitchen door, looked out onto the porch, and noticed Officer Zink standing there. He came to the door and first asked him what he was doing there, and then, without pause, ordered him to get off of his property. Officer Zink explained that he was there to investigate a motor vehicle accident. The defendant again ordered him to leave, with a raised voice. The officer stated that he needed information from the defendant. He did not leave, nor did he make any move to do so. The defendant did not shut the door and return inside. He continued to talk to the officer.
Officer Zink was able to observe signs that the defendant was highly intoxicated during the conversation described above. The defendant was having difficulty walking, had bloodshot and watery eyes, slurred speech, and smelled of intoxicants.
Officer Zink asked him if he had been drinking, and the defendant told him that he had been drinking all day, and that his cat had just died. When Officer Zink asked if he had been drinking since he arrived home, he said he had 3 or 4 beers.
At Officer Zink’s request, the defendant went out to the garage with him to collect his automobile related paperwork from the vehicle. Sgt. Dean arrived in his police vehicle as the two walked toward the garage. As Sgt. Dean drove in, the defendant made a negative comment, complaining that “more police” were now involved. He also said, “All right, you got me. I did hit that car, and I drove away.”
Mr. Harte was very upset and angry that there were now two unwanted police officers at his home, and was yelling and screaming. He pointed his finger toward Sgt. Dean’s face. He was screaming and swearing, and gesturing with his hand toward Sgt. Dean to the point where Officer Zink feared he might strike Sgt. Dean. He therefore sprayed the defendant in the face with pepper spray. The defendant then began to “thrash around,” and Sgt. Dean struck him with his baton. The defendant then fell to the floor of the garage, where Sgt. Dean restrained him and placed him in handcuffs. Neither Officer Zink nor Sgt. Dean informed the defendant that he was under arrest, or that he was about to be arrested, before Officer Dean sprayed him with pepper spray.
The officers took the defendant to the police station, where he was processed for leaving the scene of an accident and for driving under the influence. During processing, he repeated that he had several beers after arriving home from the convenience store, and denied drinking before that, but then later said he did drink three or four beers before going out.
Conclusions of Law
Motion to Suppress
The defendant argues that the evidence against him that was obtained after the police came to his home must be suppressed, for two reasons. First, he alleges that Office Zink violated the defendant’s rights by using his flashlight to peer into his closed garage, through the windows, to view the damage to his motor vehicle and to confirm its presence and license number. Second, he alleges that Officer Zink entered his mudroom-porch area, without permission or warrant, and that this entry was improper.
Flashlight assisted examination of
Garage through window
The area behind the defendant’s home, and adjacent to the garage is clearly within the cartilage of the house, that is, the “area outside the physical confines of a house into which the ‘privacies of life’ may extend.” State v. Rogers, 161 Vt. 236 (1993) (citation omitted). It is therefore entitled to the same constitutional protection from searches and seizures as the home itself. Id. However, “there is no invasion of privacy – and therefore no search – when government observes that which is willingly exposed to the public,” so a homeowner must take steps to protect his property from public entry and view if he wishes it to be constitutionally protected. State v. Bryant, 2008 VT 39, ¶ 13. “Where the indicia, such as fences, barriers or “no trespassing” signs reasonable indicate that strangers are not welcome on the land, the owner or occupant may reasonably expect privacy.” State v. Kirchoff, 156 Vt. 1 (1991).
In this case, the defendant’s driveway and the area behind his home did not have any signs warning against trespass, or any barriers to prevent visitors from pulling in and parking. Indeed, the defendant acknowledged that it was his regular practice to park behind the house and enter through the rear door. The court notes that this is very common practice in Vermont, and that many homes’ front doors are used only on special occasions. Friends and family typically enter through the kitchen or back door.
The use of a flashlight to illuminate the interior of the garage also did not violate the defendant’s rights. Shining a flashlight to illuminate the interior of a vehicle or building does not constitute a search that triggers Fourth Amendment protections. United States v. Dunn, 480 U.S. 294, 305, 107 S.Ct. 1134, 1141-42, 94 L.Ed.2d 326 (1987); Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535; 1541-42, 75 L.Ed.2d 502 (1983).
When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search. Regardless of the time of day or night, the plain view rule must be upheld where the viewer is rightfully positioned … . The plain view rule does not go into hibernation at sunset.
Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970).
The defendant’s motion to suppress evidence resulting from Officer Zink’s entry onto the defendant’s back yard area, approaching his garage and peering through the windows, with a flashlight, must therefore be denied.
Approach to home and failure to leave
upon request
The officer next approached the home, knocked repeatedly, and then, when he obtained an answer, was told by the homeowner, in no uncertain terms, repeatedly, that he was not welcome and that he should leave. Nonetheless, inexplicably, and without any warrant for arrest or for search, the officer did not leave.
The defendant asserted his rights to possession of his home in no uncertain tents, and made it unequivocally, rudely clear that he wished to have his rights to privacy respected. The officer failed to respond to this clear assertion of the defendant’s Fourth Amendment and Article II based rights. There can be no question that the defendant’s language was a clear expression of an “expectation of privacy” and a “desire to exclude the public.” Bryant, supra, at ¶ 11.
Upon receiving this clear communication, the officer had no right to continue his contact with the defendant, and indeed, had an obligation to abide by the defendant’s request that he leave the premises, though of course he could also have secured the premises while seeking a warrant for search or for arrest. Any evidence that resulted from his failure to abide by the defendant’s clearly expressed wishes must, therefore, be suppressed. This includes all evidence that was obtained from the defendant or at his home after the officer ignored the defendant’s repeated orders for him to leave.
Motions to Dismiss
The defendant also argues that the evidence is insufficient to support the charges of driving under the influence and resisting arrest. Based upon the ruling above, granting the motion to suppress, this issue need not be addressed, as the evidence supporting both charges is suppressed.
Based upon this decision, judgment must be entered for the defendant in the civil suspension case.
Michael Munson, Deputy Bennington State’s Attorney, Bennington, for State
Brad Myerson, Manchester Center, for defendant
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