ROI V. SIMMONDS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
Simmonds v. People
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, dissenting.
ROI V. SIMMONDS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
ROI V. SIMMONDS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
S. Ct. Crim. No. 2008-008
Supreme Court of the Virgin Islands
May 4, 2010
Darren John-BAPTISTE, Esq., The Practice, PLLC, St. Thomas, USVI, Attorney for Appellant.
Richard S. Davis, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee.
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, dissenting.
OPINION OF THE COURT
(May 4, 2010)
Cabret, J.
Following a warrantless search of Roi Simmonds' back yard, enforcement officers from the Virgin Islands Waste Management Authority ("WMA") issued him a citation for accumulating waste on his property. Simmonds moved to suppress evidence obtained as a result of the search, arguing that the officers violated his rights under the Fourth Amendment to the United States Constitution. The Superior Court denied Simmonds' motion to suppress, and after a bench trial, found him guilty of the charge. Simmonds filed this appeal, asserting that the Superior Court erred in denying his motion to suppress. Because we agree with Simmonds that the Fourth Amendment prohibited the officers' warrantless search of his back yard, we will reverse his conviction.
I. FACTS AND PROCEDURAL HISTORY
The search at issue occurred on August 29, 2007. On that day, law enforcement officers from the Virgin Islands Police Department Abandoned Vehicle Task Force and the WMA converged on the Frydendahl area of St. Thomas in a concerted response to numerous complaints of junk vehicles and other waste accumulating in the area. Simmonds resided in Frydendahl, and after a police officer apparently observed what he believed was accumulated waste on Simmonds' property, WMA Enforcement Officer Clarence Husband was dispatched to Simmonds' home to investigate the matter.
As Officer Husband approached Simmonds' home from a public road, he "observed numerous abandoned vehicles, household appliances, junk wood, and [that] the yard was in a terrible condition." (J.A. at 106.) Although Simmonds' property is mostly surrounded by a fence, Officer Husband pulled his car into a "drive-in area" where there was no fence. Simmonds was in his front yard when Officer Husband arrived. (J.A. at 106.) Officer Husband approached Simmonds and attempted to explain to him that he needed to clean up his yard, but Simmonds replied that he could keep whatever he wanted on his property and he asked Husband to leave. Notwithstanding Simmonds' request, Officer Husband remained on Simmonds' property and called for his partner, Officer Jarmel Rubaine, to assist him.
Shortly thereafter, Officer Rubaine arrived at Simmonds' home with a camera to photograph the alleged violations. Rubaine and Husband walked around the side of Simmonds' house and into the back yard where Rubaine took photographs of several dilapidated vehicles and what Rubaine claimed were piles of rotted, termite infested wood and other debris. When Simmonds asked why photographs were being taken, Officer Husband told him that he was going to be cited for the accumulation of waste and that the officers "always take pictures of situations like that." (J.A. at 130.) After the photographs were taken, Officer Husband issued Simmonds a citation for accumulating waste on his property. It is undisputed that Simmonds did not consent to the officers entering his back yard and taking photographs and that all of the photographs were taken from Simmonds' back yard.
Prior to trial on the charge, Simmonds filed a motion in limine arguing, among other points, that the officers' warrantless search of his back yard violated his Fourth Amendment rights and that the unlawfully obtained evidence must be suppressed. The People of the Virgin Islands responded that the WMA officers did not violate Simmonds' rights because the violations were in plain view and because the officers were authorized to enter Simmonds' yard, "knock on [his] door and then talk to him about the reports of waste" under the " 'knock and talk' . . . exception to the Fourth Amendment warrant requirement." (J.A. at 48.)
At a bench trial on the charge, the trial judge stated that he was going to take Simmonds' motion to suppress under advisement and hear evidence on the alleged violation. The evidence consisted of the officers' testimony recounting what transpired on the day they visited Simmonds' home. The officers also described the waste they observed on Simmonds' property, and the People tendered into evidence the photographs they took of the alleged waste.
On January 25, 2008, the Superior Court entered a judgment denying Simmonds' motion to suppress and finding him guilty of the charged offense. In denying Simmonds' motion, the Superior Court reasoned that the officers were permitted to enter Simmonds' property under the knock and talk exception to the warrant requirement. The court further reasoned that, because the waste violations were in plain view once the officers entered the property, they were authorized to collect evidence despite Simmonds' verbal objections. The Superior Court subsequently sentenced Simmonds to, inter alia, a suspended thirty day prison term, a $1,000 fine, eighty hours of litter gathering and numerous directives that Simmonds clear his yard of debris. This appeal ensued.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to title 4, section 32(a) of the Virgin Islands Code, which provides that "[t]he Supreme Court shall have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." In reviewing the trial court's denial of Simmonds' motion to suppress, we review its factual findings for clear error and exercise plenary review over its legal determinations. See United States v. Shabazz, 564 F.3d 280, 286 n.4 (3d Cir. 2009) (citing United States v. Lafferty, 503 F.3d 293, 298 (3d Cir. 2007)).
III. DISCUSSION
It is beyond debate that individuals have a reasonable expectation of privacy in their homes. See United States v. Karo, 468 U.S. 705, 714, 104 S. Ct. 3296, 3303, 82 L. Ed. 2d 530 (1984). This expectation of privacy is rooted in, and protected by the Fourth Amendment to the United States Constitution, which provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is made applicable to the Virgin Islands pursuant to section 3 of the Revised Organic Act of 1954. The Fourth Amendment generally protects individuals from "governmental intrusion not authorized by a warrant," and the decisions of the United States Supreme Court "have not deviated from this basic Fourth Amendment principle. Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances." Karo, 468 U.S. at 714-15, 104 S. Ct. at 3303. (citing Welsh v. Wisconsin, 466 U.S. 740, 748-749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732 (1984); Steagald v. United States, 451 U.S. 204, 211-212, 101 S. Ct. 1642, 1647-1648, 68 L. Ed. 2d 38 (1981); Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980)).
The Fourth Amendment's shield from unreasonable government intrusion, however, is not confined to the inside of a home, but extends to the curtilage. United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326 (1987) (citing Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984)).
At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life, and therefore has been considered part of [sic] home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.
Oliver, 466 U.S. at 180, 104 S. Ct. at 1742 (citations and quotation marks omitted). These factors are:
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing.
Dunn, 480 U.S. at 301, 107 S. Ct. at 1139. " '[F]or most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage-as the area around the home to which the activity of home life extends-is a familiar one easily understood from our daily experience.' " 480 U.S. at 302, 107 S. Ct. at 1140 (quoting Oliver, 466 U.S. at 182 n.12, 104 S. Ct. at 1743 n. 12)). It is within this area that people have a legitimate expectation of privacy. Est. of Smith v. Marasco, 430 F.3d 140, 156 n. 14 (3d Cir. 2005) (citing Dunn, 480 U.S. at 300, 107 S. Ct. at 1139). Whether an area is included within the curtilage is a question of fact that we review for clear error. United States v. Benish, 5 F.3d 20, 23-24 (3d Cir. 1993).
In the instant case, the Superior Court found that the area where the photographs were taken was within the curtilage of Simmonds' home, and the People do not contest this finding on appeal. In fact, the record indicates that the area in question, which provided the vantage point from where the officers took the photographs, was: (1) immediately outside Simmonds' home, (2) in his back yard, and (3) enclosed by a fence. These three factors are strong indications that the area in question should be treated as an extension of Simmonds' home for Fourth Amendment purposes. See Oliver, 466 U.S. at 178, 104 S. Ct. at 1741 (recognizing that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home" (emphasis added)); United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir. 1997) (finding that a fenced backyard area immediately outside the home was within the curtilage); Brocuglio v. Proulx, 478 F. Supp. 2d 297, 304 (D.Conn. 2007) (observing that "although there may not be an actual legal presumption that a fenced-in back yard is curtilage, curtilage is often defined as the area immediately adjoining the home"). Although the evidence also showed that Simmonds stored lumber and vehicles in this area, because the other three factors all indicate that this was an area which should be considered an extension of the home for Fourth Amendment purposes, the Superior Court did not clearly err in concluding that it was within the curtilage.
Notwithstanding our conclusion that Simmonds' back yard was within the curtilage of his home, it appears that the officers observed, from outside the curtilage, some of the alleged waste which Simmonds stored in his back yard. Indeed, both officers testified that they could see some of the alleged violations from the public road before they even entered Simmonds' property. The officers unquestionably had a right to be on the public road fronting Simmonds' home, and the Fourth Amendment did not curtail their right to make observations from that vantage point. See Dunn, 480 U.S. at 304, 107 S. Ct. 1134) ("as long as officers were 'standing . in the open fields, the Constitution did not forbid [the officers] to observe' the area assumed to be curtilage"); California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 1812, 90 L. Ed. 2d 210 (1986) (recognizing that the Fourth Amendment does not require that "law enforcement officers . . . shield their eyes when passing by a home on public thoroughfares."); Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir. 1998) (citing Dunn, 480 U.S. at 304, 107 S. Ct. 1134, for the proposition that "officers may constitutionally view a protected area as long as they make their observations from a lawful vantage point-i.e., a place located outside of the curtilage").
Likewise, Officer Husband had the right to approach Simmonds in his front yard and speak with him about the violations, and any observations made from that vantage point would not have violated Simmonds' Fourth Amendment rights. Under the "knock and talk" doctrine, relied upon by the Superior Court in the instant case,
[o]fficers are allowed to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants just as any private citizen may. According to one scholar, "when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), obser vations made from such vantage points are not covered by the Fourth Amendment."
Est. of Smith v. Morasco, 318 F.3d 497, 519 (3d Cir. 2003) (quoting Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 2.3(f) (3d ed. & Supp. 2003)). Thus, as with the roadside observations, any observations the officers made from the vantage point they enjoyed while talking with Simmonds' in his front yard would have been permitted by the Fourth Amendment. See id.; United States v. French, 291 F.3d 945, 953 (7th Cir. 2002) ("it is not objectionable for an officer to come upon that part of [private] property which has been opened to public common use. The route which any visitor or delivery man would use is not private in the Fourth Amendment sense, and thus if police take that route for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open." (citation and quotation marks omitted)).
But the salient question in this appeal does not concern the observations the officers made from the public road or from Simmonds' front yard. Rather, at issue is the evidence gathered from Simmonds' back yard: the observations the officers made after they entered the back yard and the photographs they took from that vantage point. Even if the officers, while standing in the public road or in Simmonds' front yard, observed violations situated within Simmonds' back yard, those observations would have merely provided probable cause, not authorization for a warrantless search of the curtilage. See United States v. Whaley, 781 F.2d 417, 419 (5th Cir. 1986) ("the mere observation of [marijuana plants] from the road or driveway would not justify entry into the home or curtilage to search or to seize property found there. That would have given probable cause to support a warrant." (citation omitted)); Morgan v. State, 285 Ga. App. 254, 645 S.E.2d 745, 748) (2007) ("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 [sic] within the curtilage surrounding the residence-and take steps culminating in the dogs there being seized and removed from the property.").
Furthermore, even if the officers were armed with probable cause based on their permissible observations from outside the curtilage of waste in Simmonds' back yard, a warrantless search or seizure within the back yard was "presumptively unreasonable" absent Simmonds' consent or exigent circumstances. Karo, 468 U.S. at 717, 104 S. Ct. at 3304 (listing certain automobile searches, consensual searches and exigent circumstances as examples of the limited exceptions to the warrant requirement recognized by the Supreme Court); accord United States v. Coles, 437 F.3d 361, 365-66 (3d Cir. 2006) ("Warrantless searches and seizures inside someone's home . are presumptively unreasonable unless the occupants consent or probable cause and exigent circumstances exist to justify the intrusion." (citing Steagald, 451 U.S. at 211, 101 S. Ct. at 1647; Payton, 445 U.S. at 586, 100 S. Ct. at 1380); United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973) ("Probable cause to believe contraband is present is necessary to justify a warrantless search, but it alone is not sufficient . Mere probable cause does not provide the exigent circumstances necessary to justify a search without a warrant."). In this case, it is undisputed that Simmonds did not consent to the officers entering his back yard. In fact, prior to the warrantless entry, Simmonds told Officer Husband to leave his property. Thus, the warrantless entry into Simmonds back yard could only have been justified, if at all, by exigent circumstances.
As they relate to the circumstance of this case, "[e]xamples of exigent circumstances include . the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others." Coles, 437 F.3d at 366 (citing United States v. Richard, 994 F.2d 244, 247-48 (5th Cir. 1993)); accord United States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (recognizing that exigent circumstances will justify a warrantless entry, search or seizure when, among other situations, officers "acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that (a) evidence or contraband will imminently be destroyed or (b) the nature of the crime or character of the suspect(s) pose a risk of danger to the arresting officers or third persons." (citation and quotation marks omitted).
Although the Superior Court in this case did not consider the question of exigent circumstances, it is abundantly clear from the record that there were no exigent circumstances justifying the officers' warrantless search of Simmonds' back yard. Simmonds was being investigated for accumulating waste on his property. This waste, which allegedly consisted of dilapidated vehicles and piles of rotting lumber, posed no immediate threat to the investigating officers or anyone else. Furthermore, it is hard to conceive of circumstances under which a reasonable officer could be more confident that evidence would not be destroyed or removed from the home while he sought a warrant. It is obvious that the dilapidated vehicles and piles of rotting lumber could not be quickly removed or destroyed, and the very act of doing so would merely have obviated the need to charge Simmonds with unlawfully accumulating such waste on his property. In fact, Officer Husband testified that his initial purpose in speaking with Simmonds was to inform him that he needed to remove these items from his property and that it was only after Simmonds refused to do so that a citation was issued. Thus, under the totality of the circumstances, an officer could not have reasonably believed that there were exigent circumstances justifying the warrantless entry and collection of evidence in Simmonds' back yard. Accordingly, any evidence obtained as a result of that search violated Simmonds' Fourth Amendment rights.
When evidence is obtained as a result of an unconstitutional search, the exclusionary rule requires that the fruits of that search be excluded from evidence at trial. See United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir. 2002). The goal in suppressing such illegally obtained evidence is to "deter unlawful police conduct" and "to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused." Id. (citations and quotation marks omitted). Because the officers in this case obtained the evidence at issue in violation of Simmonds' Fourth Amendment rights, that evidence should have been excluded from trial, and because it was not, Simmonds' conviction will be reversed, and a new trial ordered.
IV. CONCLUSION
We conclude that the trial court erred in denying Simmonds' motion to suppress evidence obtained from the officers' warrantless entry into, and search of, his back yard. The back yard area in question was within the curtilage of Simmonds' home. Thus, even if the officers had probable cause to believe that violations existed within the back yard based on what they observed from outside the curtilage, without either Simmonds' consent or exigent circumstances, their entry into the back yard violated Simmonds' Fourth Amendment rights. For these reasons, the trial court erred in denying the motion to suppress, Simmonds' conviction will be reversed, and the matter will be remanded for a new trial.
Although the citation does not identify the statute that Simmonds was charged with violating, the record shows that he was charged under title 19 section 1563(5) of the Virgin Islands Code, which provides in pertinent part:
No person shall.. . cause, suffer or permit the accumulation, on premises under his management or control as owner, lessee, contractor or otherwise, of waste which because of its character or condition may invite the breeding or collection of flies, mosquitoes or rodents, or which may in any other manner prejudice the public health.
A violation of this section is a misdemeanor which can result in a fine of $1,000 for each offense and incarceration of up to 180 days. V.I. CODE Ann. tit. 19, § 1562(a) (Supp. 2008).
Simmonds also moved to exclude evidence of the photographs on the ground that the People did not provide him with copies of the photographs during discovery. Because we conclude that the photographs should have been suppressed on Fourth Amendment grounds, we need not address Simmonds' assertion that the trial court also erred in admitting the photographs due to the alleged discovery violations.
The complete Revised Organic Act of 1954 is found at 48 U.S.C. § 1541-1645 (1995), reprinted in V.I. CODE ANN., Historical Documents, Organic Acts, and U.S. Constitution at 73-177 (1995) (preceding V.I. CODE ANN. tit. 1).
Notwithstanding the Superior Court's finding that the photographs were taken within the curtilage of Simmonds' home, the dissent concludes that Simmonds had no expectation of privacy in this area. The dissent, however, never addresses whether the Superior Court's finding of fact was clearly erroneous.
We note that, while the proximity of the backyard area to Simmonds' home and the presence of a fence establish that the trial court's finding in this case was not clearly erroneous, the factors relevant to the curtilage determination must be applied on a case-by-case basis. See United States v. Depew, 8 F.3d 1424, 1426 (9th Cir. 1993) (recognizing that "[e]very curtilage determination is distinctive and stands or falls on its own unique set of facts"). As pointed out by the United States Supreme Court in Dunn, the four- factor test does not:
produce[ ] a finely tuned formula that, when mechanically applied, yields a correct answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection.
Dunn, 480 U.S. at 301, 107 S. Ct. at 1139-40.
" '[T]he term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither 'open' nor a 'field' as those terms are used in common speech.' " Dunn, 480 U.S. at 304, 107 S. Ct. at 1141 (quoting Oliver, 466 U.S. at 180 n.11, 104 S. Ct. at 1742 n.11).
The dissent concludes that "[e]ven if the evidence of waste material that the Officers saw or photographed after they entered Appellant's property is discarded, excluded or suppressed, there remains sufficient evidence, which the Officers observed from the public roadway, to sustain a conviction on the criminal citation issued to Appellant." (Dissenting Op. at 10.) But "[w]e are not concerned here with whether there was sufficient evidence on which the [appellant] could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171 (1963). Though not raised by the People, the dissent seems to suggest that even if the Superior Court erred in admitting the evidence, the error was harmless in light of other evidence which was sufficient to sustain the conviction. While constitutional errors of this type do not always require reversal, in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967), the Supreme Court ruled that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." The burden is on the beneficiary of the error, in this case the People, to make this showing. Id.
Though the People have not made any showing, the admission of the photographs was not harmless beyond a reasonable doubt. Like the Supreme Court of Kentucky:
We find truth in the old adage, "A picture is worth a thousand words" Trial attorneys demonstrate the value of photographs on a daily basis in the courtrooms of this [territory] and we have no doubt that photographs frequently communicate the testimony of a witness to the jury more fully and accurately than the words in the testimony do.
Gorman v. Hunt, 19 S.W.3d 662, 668 (Ky. 2000). The WMA officers, too, must have subscribed to this adage, stating that they "always take pictures of situations like that." (J.A. at 130.) Moreover, inasmuch as the officers obviously felt it was necessary to take the photographs from the back yard, as opposed to street or front yard from which they had a lawful vantage point, the back yard vantage point must have provided some additional benefit. Indeed, the back yard may have provided a better point of view to take the photographs and the closer proximity likely yielded photographs depicting the alleged violations in greater detail. Finally, it is clear that the photographs were used at trial to corroborate the officers' descriptions of the alleged violations, and the Superior Court plainly relied on the photographs, which it believed were lawfully obtained, in finding Simmonds guilty. For these reasons, we conclude that "the erroneous admission of this illegally obtained evidence was prejudicial to [appellant] and hence it cannot be called harmless error." Fahy, 375 U.S. at 91-92, 84 S. Ct. at 233.
The witnesses' responses were previously designated in the trial transcript by use of a capital letter "A." This juncture, however, is one of several where the transcript designates the witnesses' responses by use of "THE WITNESS."