of the Fourth Amendment. The Court of Appeals agreed, and reversed and remanded the case.
The Gray Court recognized the general rule of Marron v. United States, supra that warrants particularly describe the things to be seized and that when a search is carried out pursuant to a warrant, the search must be limited in scope, not general or exploratory. The Gray Court also recognized another exception to the general rule that unspecified items may not be seized, namely, the plain view doctrine which permits an officer conducting a legal search to seize a piece of evidence incriminating the accused which is beyond the scope of the original warrant where it is immediately apparent to the officer that he has incriminating evidence before him. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968).
The Gray Court reasoned that since the rifles were not incriminating evidence at the time the officer copied down the serial numbers, this police action could not be sanctioned under the plain view doctrine. The Gray case is clearly distinguishable, however, from the present case. In Gray, the seizure of the weapons which were not clearly incriminating, and could not be justified as a logical extension of the liquor violations, was clearly beyond the scope of the warrant. In the present case, one might note that possession of someone else's federal probation report is suspicious in itself. Furthermore, it was not unreasonable for Agent Ramsey to believe that the individual named in the probation report might be one of unidentified individuals mentioned in the affidavit. Moreover, rather than dealing with two distinct crimes as in the Gray case here we are concerned basically with one crime.
Even assuming arguendo, that the requirements of the plain view doctrine are not met here, that is to say, it was not immediately apparent to the agent that he had incriminating evidence before him, the defendants' motion to suppress with respect to the copying of the probation report should not be granted. We have already noted above that a search on a warrant may extend to items reasonably related to the purposes of the search, and gaining evidence as to the possible identity of unknown individuals mentioned in the affidavit is reasonably related to the purpose of the search.
WAS THE WARRANTLESS SEARCH OF THE TRASH IN DEFENDANTS' BACKYARD AND THE REMOVAL THEREFROM OF AN EMPTY PAPER CARTON A VIOLATION OF THE FOURTH AMENDMENT?
It was agreed to by counsel,
that on February 28, 1973, at night, an F.B.I. agent went into the alleyway behind 3226 W. Cheltenham Avenue and removed a cardboard carton marked "Volume Merchandise Inc." from the trash located in the defendants' backyard. There was no search warrant for the search and seizure and the defendants argue that a search of their "backyard trash" is protected by the Fourth Amendment. Accordingly, the defendants claim that the evidence seized from the trash and all evidence derived therefrom must be suppressed.
The government argues basically two theories which it claims support the conclusion that this evidence taken from the trash does not come within the Fourth Amendment's protection. The government believes it's preposterous to assume that one has an expectation of privacy in discarded garbage or trash which has been placed outside the premises of the residence or business. In Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973), the Supreme Court stated that before a Fourth Amendment protection can be involved, the defendant must have had some expectation of privacy in that which is searched.
The second theory relied on by the government is that of abandonment. The government argues that to move undesirable garbage or trash from within the premises to without, where it is normally collected, is to discard it forever. The government urges that abandonment did occur here, and that the defendants do not have standing to raise the issue of the trash search. Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960).
The Fourth Amendment provides for "the right of the people to be secure in their persons, houses, papers, and effects." The word "houses" in the Fourth Amendment has been extended by the Courts to include the curtilage. Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968). Thus, the enclosed area surrounding a dwelling place is part of the protected premises. In United States v. Minker, 312 F.2d 632 (3d Cir. 1962), cert. denied, 372 U.S. 953, 83 S. Ct. 952, 9 L. Ed. 2d 978 (1963) the Court stated:
"Whether a given area is within the protected curtilage of one's dwelling depends upon a number of factors, including its proximity to the dwelling, whether it is within the enclosure surrounding the dwelling, and its use as an adjunct to the domestic economy of the family. . . . Of course, factors of paramount importance in considering a Fourth Amendment claim are the nature of the individual's interest in and the extent of the claimed privacy of the premises searched . . . ." 312 F.2d 632 at 634.
In the Minker case, it was decided that a tenant who lived in a second floor apartment and who deposited trash in a receptacle located on the premises but outside the building, had not only abandoned the property but, in addition, that the trash can was located outside an area which would entitle him to constitutional protection.
A trash can under the defendant's house has been held to be within the protected area, Work v. United States, 100 U.S. App. D.C. 237, 243 F.2d 660 (1957) as has a barn, Steeber v. United States, 198 F.2d 615 (10th Cir. 1952), but not a hog shed, Thomas v. United States, 154 F.2d 365 (10th Cir. 1946), nor an open field, 50 to 100 yards from defendant's house, Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924) nor a garage, Carney v. United States, 163 F.2d 784 (9th Cir. 1947). Also, the lobby of a multitenanted apartment building has been held to be not within the curtilage of the individual tenants. United States v. Miguel, 340 F.2d 812 (2nd Cir.) cert. denied, 382 U.S. 859, 86 S. Ct. 116, 15 L. Ed. 2d 97 (1965).
The premises at 3226 W. Cheltenham Avenue is a one story building connected to several buildings in a small shopping center. It is bordered on the east side by Ivy Hill Valet Service and on the west side by Aetna Financial Service.
Stanley and Nathan Wolfe do business at the location under the name of Cedarbrook Fashions.
Curtilage, discussed above, means a small piece of land, not necessarily enclosed, around a dwelling house and generally includes buildings used for domestic purposes in the conduct of family affairs; the term has no application to any building not used as a dwelling. In re Burgoon's Estate, 80 Ohio App. 465, 76 N.E. 2d 310, 312 (1946); Turknett v. State, 36 Okl. Cr. 401, 254 P. 985, 986 (1927).
Whereas, the term "house" within the Fourth Amendment may include a business office or store, Lanza v. State of N.Y., 370 U.S. 139, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (1962), the concept of curtilage does not apply to buildings other than dwellings. United States v. Hayden, 140 F. Supp. 429 (D.C. Md. 1956). Thus, the backyard of the defendants' business premises would not be afforded the same protection as part of the curtilage of a dwelling.
In the venerable case of United States v. Vlahos, 19 F. Supp. 166 (D.C. Or. 1939), the Court stated:
"It is certainly true that a detached building or a place of business cannot be searched without a warrant when there is no evidence that any one is inside even though indications of the existence of crime are evident. A reconciliation of the diverse holdings can be made upon the ground that a dwelling house has a curtilage while a detached building, manufacturing plant, or other structure has none. The word 'curtilage ' from its origin has denoted only the inclosure surrounding a dwelling house." 19 F. Supp. 166 at 170.
Thus, it may be concluded that the Fourth Amendment does not cover a business establishment with the same degree of protection against warrantless searches and seizures as that afforded a bona fide dwelling. People v. Sperber, 40 Misc. 2d 13, 242 N.Y.S. 2d 652. Aff'd. 15 N.Y. 2d 566, 254 N.Y.S. 2d 538, 203 N.E. 2d 219. As it was stated in Monnette v. United States, 299 F.2d 847 (5th Cir. 1962), "A business establishment [is] not entitled to the same degree of privacy as a bona fide dwelling." 299 F.2d 847 at 851.
Moreover, it may not be validly argued that the F.B.I. agents could have obtained a search warrant, for the test is not whether it was reasonable to procure a search warrant but whether the search itself was reasonable, which it was. United States v. Edwards et al., 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974).
Accordingly, the motion to suppress evidence of the defendants Wolfe is denied.