State v. Cloutier , 544 A.2d 1277 ( 1988 )

CLIFFORD, Justice.

The State of Maine has appealed¹ from an order of the Maine District Court, Wa-terville, granting Rodney Cloutier’s motion to suppress evidence seized from his residence. The evidence in controversy was seized pursuant to a warrant that was based upon earlier observations of a police officer made through a basement window from the walkway area immediately outside the door of the defendant’s residence. We vacate the judgment.

At about 8:00 p.m. on September 26, 1986, Ralph Sabins, a sergeant with the Oakland Police Department, was on patrol in the area of Lakeview Drive in Oakland. He received a complaint that a dog was barking in the area. Sabins investigated by cruising along Lakeview Drive, stopping his car at various places along the road to listen. During one such stop he stepped out of his car and started out on foot. He noticed a basement light on in the defendant’s house, which was otherwise dark, and proceeded to walk up to the side door to see if anyone was home. Sabins testified at the suppression hearing that he was drawn to the house because there had been recent reports of burglaries in the area and the light in the basement aroused his suspicion.

Sabins knocked on the side door but no one answered. As he walked down the steps from the side door he glanced into the basement window located at ground level to his immediate right. Without bending over or moving any objects in order to improve his view, he noticed several marijuana plants beneath a fluorescent light. He later obtained a search warrant on the strength of his affidavit. A search was conducted and a cable TV box was discovered in the basement, leading to Cloutier being charged with theft of services in violation of 17-A M.R.S.A. § 357 (1983).

After a hearing on Cloutier’s motion to suppress, the motion judge found that Officer Sabins had no legitimate law enforcement reason justifying his presence on Cloutier’s walkway when he made his observations² and granted Cloutier’s motion to suppress the evidence seized from his basement.

The probable cause supporting the issuance of the search warrant was based upon the observations of Sabins. An observation can be a search. See State v. Wentworth, 480 A.2d 751, 757 (Me.1984). Whether Sabins’ observations of the marijuana in Cloutier’s cellar were searches within the meaning of the fourth amendment depends upon whether Cloutier entertained a reasonable expectation of privacy with respect to those activities. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). A reasonable expectation of privacy exists if 1) a person has manifested a subjective expectation of privacy with respect to a place or object and 2) society is willing to recognize that expectation as reasonable. Id.; State v. Bridges, 513 A.2d 1365, 1367 (Me.1986).

Fourth amendment protection extends not only to the interior of a dwelling but also to the “curtilage,” that is, to the land immediately surrounding and associated with the home. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984); State v. Pease, 520 A.2d 698, 699 (Me.1987). As to these protected areas, however, “[wjhat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351, 88 S.Ct. at 511. The marijuana plant in this case was not exposed to the public at large, as it would have been had it been growing in Cloutier’s front yard or on his front porch and visible from a public street or sidewalk. By cultivating the marijuana in his basement, Cloutier took some measures to conceal his marijuana activity from observation. We assume that Cloutier entertained some subjective expectation of privacy in the marijuana, yet we nonetheless conclude that because Officer Sabins was in Cloutier’s walkway on legitimate police business when he made his observations, this subjective expectation of privacy was not one that society is willing to recognize as reasonable.

The portion of the curtilage at issue here, the walkway immediately outside the door of Cloutier’s residence, is the normal route of access for anyone visiting the premises. As such, it is only a semiprivate area, admitting of a reasonable expectation that various members of society may use the walkway in the course of attending to personal or business pursuits with persons residing in the home, including .police officers on police business. State v. Rand, 430 A.2d 808, 818 (Me.1981). The right to come upon a walkway or en-tranceway or porch of a residence is not absolute. Rather, the owner impliedly invites to intrude upon his or her property only those with a legitimate social or business purpose. Id. Moreover, the implied invitation extends only to recognized access routes reasonable under the circumstances, id. at 818-19; Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 594, 511 P.2d 33, 42 (1973), and to reasonable times of day, again depending on the circumstances, Brown v. State, 392 So.2d 280, 284 (Fla.App.1980). As to someone present on the property under the implied invitation, the property owner has no reasonable expectation of privacy from observations made by that invitee. Rand, 430 A.2d at 819.³

The historical facts in this case are uncontroverted. Based on those facts, the motion judge concluded that Officer Sabins had no legitimate reason to be on Cloutier's walkway, and therefore, by implication, determined that Cloutier had a reasonable expectation of privacy protecting him from the observations of Sabins. As a legal conclusion based on uncontroverted facts, the motion judge’s ruling is independently reviewable on appeal. State v. Hasenbank, 425 A.2d 1330, 1332 (Me.1981).

Contrary to the motion judge’s assumption, upon which the above conclusions were based, police officers may avail themselves of the implied invitation to the same extent as other persons. “An officer is permitted the same license to intrude as a reasonably respectful citizen.” State v. Seagull, 95 Wash.2d 898, 632 P.2d 44, 47 (1981); see also Rand, 430 A.2d at 818-19.

To come within the implied invitation, a police officer must be on some police business. That does not necessarily mean that the officer has to have probable cause or even an objectively reasonable suspicion that criminal activity is afoot. The police business may be administrative as well as investigative, and it may be action based on a suspicion that turns out to be without substantial basis, provided the suspicion is held in good faith rather than as a pretext for an arbitrary search. Officer Sabins’ burglary suspicion, based on recent reports of burglaries in the community and the fact that Cloutier’s basement was the only illuminated room in the house, although tenuous, was held in good faith and was not pretextual. Officer Sa-bins was sufficiently engaged in legitimate police business so as to be an invitee. See Rand, 430 A.2d at 819; see also Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981); Causey v. State, 374 So.2d 406 (Ala.Crim.App.1979).

Having concluded that Officer Sa-bins was rightfully on the premises, and in view of the fact that he detected the contraband by means of his natural senses, without bending over or moving any objects to enhance his view, we necessarily hold that his observation of the marijuana was not a search for purposes of the fourth amendment. As stated in 1 W. LaFave, Search and Seizure § 2.3(c) at 393-94 (2d ed. 1987):

[I]f police utilize “normal means of access to and egress from the house” for some legitimate purpose, such as to make inquiries of the occupant or to introduce an undercover agent into the activities occurring there, it is not a Fourth Amendment search for the police to see or hear or smell from that vantage point what is happening inside the dwelling.

Because the marijuana was in the “plain view”⁴ of Sabins and anyone else present on the walkway under the implied invitation, it was not subject to any reasonable expectation of privacy. See Seagull, 632 P.2d at 46-47; see also State v. Kaaheena, 59 Haw. 23, 575 P.2d 462, 467 (1978).

The entry is:

Order vacated. Remanded to the District Court for proceedings consistent with the opinion herein.

McKUSICK, C.J., and WATHEN, J., concurring.

1 . See 15 M.R.S.A. § 2115-A(1) (1980 & Supp. 1987) and M.R.Crim.P. 37B.

2 . The motion judge found that the facts available to Sabins did not justify his suspicion that a burglary might be occurring. He further concluded that Officer Sabins did not suspect the presence of contraband on the premises when he approached the house and that therefore his ostensible purpose of investigating a possible burglary was not a pretext for a "fishing expedition."

3 . We acknowledge that in some contexts, including the case of open fields, “the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 183-84, 104 S.Ct. 1735, 1743-44, 80 L.Ed.2d 214 (1984). However, fourth amendment cases involving the cur-tilage, of which this is one, have long been informed by the common law. See id. at 180, 104 S.Ct. at 1742. “The common law may guide consideration of what areas are protected by the Fourth Amendment by defining areas whose invasion by others is wrongful." Id. at 183, 104 S.Ct. at 1744.

4 . According to the "plain view” doctrine, objects in plain view, sighted inadvertently after a lawful intrusion into activities or areas as to which there is a reasonable expectation of privacy, will be admissible. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We reject the State’s contention that this is a case involving evidence in open view. Under the "open view” doctrine a police officer, located in a place where he has an absolute right to be, such as on a public sidewalk or street, may observe evidence by means of his natural senses without conducting a search implicating the fourth amendment. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); see also 1 W. LaFave, Search and Seizure § 2.3(c) at 390 (2d ed. 1987). For a comparison of the plain view and open view doctrines, see State v. Kaaheena, 59 Haw. 23, 575 P.2d 462, 466-67 (1978) and State v. Seagull, 95 Wash.2d 898, 632 P.2d 44, 46-47 (1981).