Peeping  Cop

By Lance Hester; Jan 1999

     Earlier this month the United States Supreme Court delivered an opinion regarding the Fourth Amendment, a peeping cop, and temporary guests.

     After receiving a tip from a confidential informant, a Minnesota police officer went to an apartment building.  He looked through a ground floor window, peered around a gap in a closed blind, and observed several men bagging cocaine for several minutes.  Following his observation affidavits for a search warrant were prepared.  Ultimately, the police searched the subject apartment.  The officer identified the three people he had observed bagging the cocaine.

     It was later learned that one of the three baggers was the lessee of the apartment.  The other two had come to the apartment for the sole purpose of packaging the cocaine with the lessee.  Those two had never been to the apartment before and were there for about two and one half hours.  In fact, the two exchanged an eighth of an ounce of cocaine with the lessee for the use of his apartment.

     Needless to say, all three faced a variety of drug charges.  They moved to suppress all evidence arguing that the officer’s initial observation of the packaging activities was an unreasonable search in violation of the Fourth Amendment.  Consequently they argued that all evidence obtained as a result of the unreasonable search was inadmissible as “fruit of the poisonous tree.”

     The lower courts went back and forth on the issues of standing, who is a temporary guest, who is present for a business purpose, and who is an overnight guest.  Ultimately, however, the United States Supreme Court made its decision.  After evaluating case law related to the Fourth Amendment and long standing principles as well, the Court said, “an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.”  The Court then went on to hold that the two defendants were not overnight guests but were “essentially present for a business transaction and were only in the home a matter of hours.”  Because there was apparently no purpose to their visit other than business, and there was no evidence of an overnight guest relationship, for two of the defendants it was merely a business place.  The Court’s analysis thus treated the premises as commercial premises, rather than residential property.  Because it was a commercial setting for the two defendants who were there for the sole purpose of bagging the cocaine, and because there was no indication that they had a significant connection to this “workplace,” the Court reasoned they had a lessened expectation of privacy than what the Fourth Amendment allows one in his own home.  The “purely commercial nature” of the transaction at the apartment, the relatively short period of time on the premises, and the lack of any previous “connection between the (defendants) and the householder,” caused the Court to conclude the defendants’ situation was more analogous to prior cases where persons simply permitted on premises not their own have not been held to have an expectation of privacy protected by the Fourth Amendment.  The Court therefore concluded that any search which may have occurred at the apartment did not violate the defendants Fourth Amendment rights.

     Therefore, because the Court ruled the defendants had no legitimate expectation of privacy in this circumstance it specifically did not decide whether the officer’s observation was a “search.”  The matter was therefore remanded. 

     The Court stated that had the two guests been overnight guests they would have had an expectation of privacy protected by the Fourth Amendment.

     Washington courts tend to follow Fourth Amendment case law as it relates to issues of curtilage and police officers gathering information which is ultimately included in affidavits for search warrants.  In this regard, Division II has recently handed down a decision that discusses officers exceeding the scope of an implied invitation on to one’s property.  In State v. Ross ___ Wash. App. ___, 959 P.2d. 1188 (1998), after evaluating a number of factors, the Court held that Pierce County Sheriffs Officers’ actions made the intrusion in the case unreasonable.  Ultimately, the Court held, “if probable cause for a search warrant is obtained by way of an unconstitutional intrusion, it cannot support the warrant…we hold that the unannounced, plain clothed, after-dark, warrantless, side-entries onto the curtilage of Ross’ garage to investigate a marijuana grow were unreasonable under the Fourth Amendment; the search warrant based thereon was invalid; and the evidence seized with the warrant should have been suppressed.”  The Court thus reversed the trial court’s holding.

     Both of the above cases indicate that issues of officers employing unconstitutional tactics to obtain evidence to support a search warrant are continuing and lively issues.  In fact, it seems as though most marijuana grow operation cases begin with a “confidential informant” tipping off an officer who attempts to verify the accuracy of the informant.  The officers often times utilize stealth tactics, as in the Ross case.  The method by which such officers acquired the search warrant must therefore always be challenged.  As can be seen above, the U.S. Supreme Court has merely added one more factor which must go into the overall analysis when strategizing a motion to suppress.