Com. v. Fourney, D.

• Court: Superior Court of Pennsylvania
• Decided: January 4, 2022
• Docket: 399 MDA 2021
• Status: Unpublished

Opinion

J-S34026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DENNIS CRAVEN FOURNEY : No. 399 MDA 2021

Appeal from the Order Entered February 22, 2021 In the Court of Common Pleas of Clinton County Criminal Division at No(s): CP-18-CR-0000397-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 4, 2022

The Commonwealth of Pennsylvania appeals from the order granting the

motion to suppress filed by Dennis Craven Fourney. The Commonwealth

argues that there was no reasonable expectation of privacy in the area in

which marijuana plants were discovered because it was not within the

curtilage of Fourney’s home, and that, because the items were in plain view,

the marijuana plants were not the product of a “search.” We affirm.

The facts as found by the suppression court are as follows. See Trial Ct.

Op. and Order, 2/22/21, at 1-5. On July 26, 2020, Pennsylvania State Trooper

Timothy T. Wright was on duty for the 10:00 p.m. to 6:00 a.m. shift when he

received a dispatch of a domestic dispute on Kinley Hollow Road in Bald Eagle

Township, Clinton County, Pennsylvania. Id. The dispatch was the result of a

911 call by Shari Lee Truax, who said that Fourney had physically assaulted

her. Id. Trooper Wright and his partner, Trooper Rishel, drove to the J-S34026-21

residence. To access the area, they had to travel down on a long, winding,

private road, several hundred feet through a wooded area. Id.

The troopers found Truax in a vehicle in a gravel parking lot near the

residence, crying, with red marks on her neck and face. Id. Fourney was not

on the property. N.T., 1/25/20, at 16. Truax gave a written statement and

averred that she had been involved in a romantic relationship with Fourney,

but discovered, via text message, that he was having sexual relations with

another woman that evening. Trial Ct. Op. at 1-5. After declining treatment

by emergency medical technicians, Truax told Trooper Wright that she wanted

to show him something. Id.

Truax led both troopers to a one-story shed or garage approximately 30

yards from the parking lot. Id. The garage was used for storage. Id. Truax

led Troopers Wright and Rishel to the rear of the garage, where they saw nine

marijuana plants in plastic buckets. Id. Each plant was between four and five

feet tall. Id. There were no gates or fences near the plants, and they were not

visible from the parking lot where Trooper Wright and Truax had conversed.

Id.

Without applying for a search warrant, seeking permission to search the

area, or making an audio or video recording, Trooper Wright seized the

marijuana plants. Id. Trooper Wright’s cruiser was equipped with a recording

device, but Trooper Wright was not equipped with a body camera. Id.

Subsequent to the incident, Trooper Wright filed a criminal complaint charging

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Fourney with Manufacturing a Controlled Substance, Simple Assault, and

Harassment.1

Fourney filed a motion to suppress the marijuana plants, arguing that

the search and seizure was unlawful and violated the Fourth Amendment of

the United States Constitution. Fourney’s Omnibus Pre-Trial Mot., 11/23/20,

at 3-5. Fourney contended that Trooper Wright had conducted a warrantless

search without probable cause or exigent circumstances of the curtilage of his

home. Id. The Commonwealth filed a brief in opposition, arguing that the area

the plants were found was not curtilage, there was no expectation of privacy,

and that the plants were in plain view. Commonwealth’s Br. in Opposition,

2/16/21, at 2-6. Following a suppression hearing on January 25, 2021, the

court granted Fourney’s suppression motion. Order, 2/22/21, at 1.

The Commonwealth raises the following issues for our review:

A. Whether the lower court committed an error of law/abuse of discretion in finding that the location where the marijuana plants were found was part of the curtilage of [Fourney’s] residence?

B. Whether the lower court committed an error of law/abuse of discretion in finding that the Pennsylvania State Police conducted a search of the property at issue?

Commonwealth’s Br. at 6.

The Commonwealth argues that there was no reasonable expectation of

privacy in the area where the plants were discovered because the extension

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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2701, 2709, respectively.

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of curtilage to such an extent was not reasonable, and that there was no

search because the troopers saw the plants in plain view from a lawful vantage

point. Commonwealth’s Br. at 9-10.

We apply the following standard of review to orders granting motions to

suppress:

We consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court’s findings of fact bind an appellate court if the record supports those findings. The suppression court’s conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

We therefore apply a de novo review over the suppression court’s legal conclusions.

Commonwealth v. Gurung, 239 A.3d 187, 190 (Pa.Super. 2020) (internal

citations and quotations omitted). Here, Fourney did not present any evidence

at the suppression hearing. We therefore will consider all evidence presented

by the Commonwealth and uncontradicted by the record. See id.

“Absent probable cause and exigent circumstances, warrantless

searches and seizures in a private home violate both the Fourth Amendment

and Article 1, [Section] 8 of the Pennsylvania Constitution.” Commonwealth

v. Gibbs, 981 A.2d 274, 279 (Pa.Super. 2009).

Our courts have extended this constitutional protection to the curtilage of a person’s home by analyzing “factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Id. at 279. “Curtilage is entitled to constitutional protection from unreasonable searches and seizures as a

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place where the occupants have a reasonable expectation of privacy that society is prepared to accept.” Commonwealth v. Fickes, 969 A.2d 1251, 1256 (Pa.Super. 2009).

Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa.Super. 2012).

“The United States Supreme Court has defined the curtilage as the area

‘immediately surrounding and associated with the home’ and has stated that

the curtilage is ‘part of the home itself for Fourth Amendment purposes.’”

Commonwealth v. Eichler, 133 A.3d 775, 785 (Pa.Super. 2016) (quoting

Florida v. Jardines, 569 U.S. 1, 6 (2013)). In defining curtilage, courts have

made a distinction between dwelling houses and businesses:

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 . . .

Whereas, the term “house” within the Fourth Amendment may include a business office or store, . . . the concept of curtilage does not apply to buildings other than dwellings . . . .Thus, the backyard of the defendant's business premises would not be afforded the same protection as part of the curtilage of a dwelling.

Commonwealth v. Cihylik, 486 A.2d 987, 992 (Pa.Super. 1985) (quoting

United States v. Wolfe, 375 F. Supp. 949, 958-59 (E.D. Pa. 1974) (finding

“pit area” close to non-residential building did not constitute curtilage).

Whether or not an area constitutes curtilage is case-specific and

depends on a number of factors including “its proximity to the dwelling,

whether it is within the enclosure surrounding the dwelling, and its use as an

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adjunct to the domestic economy of the family.” Cihylik, 486 A.2d at 991-

992 (internal quotation and citation omitted). See also Commonwealth v.

Loughnane, 173 A.3d 733, 740 (Pa 2017).

For example, a front porch does not constitute curtilage where there is

no gate, front yard, enclosed space preceding or surrounding a porch that

abuts a sidewalk. Gibbs, 981 A.2d at 279. An unfenced driveway in front of a

house, leading from the street to a garage within the residence, is not

curtilage. Simmen, 58 A.3d at 815-16. Nor is a fenced, gated side yard, with

signs indicating that an area is off limits to the public. Commonwealth v.

Bowmaster, 101 A.3d 789, 792 (Pa.Super. 2014). A field surrounded by

woodland, located approximately 1170 feet from a dwelling and not visible

therefrom, was not curtilage, despite the presence of “no trespassing signs.”

Commonwealth v. Beals, 459 A.2d 1263, 1267 (Pa.Super. 1983). See also

Commonwealth v. Russo, 934 A.2d 1199, 1201 (Pa. 2007) (finding bait pile

located in plain view 90 feet from defendant’s cabin was not within curtilage).

But see Commonwealth v. Lemanski,529 A.2d 1085, 1091-92 (Pa.Super.

1987) (finding greenhouse attached to and accessible from home, situated

200 feet at the end of a dead-end dirt road in a rural area, was within curtilage

and had expectation to privacy).

The suppression court determined that the area where the plants were

found was curtilage. The court found that the area was not visible from the

gravel parking area in front of the residence and that Fourney “obviously

desired that this area would be not visible from the gravel parking area.” The

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court pointed out that the area was enclosed on one side by a one-story

garage, another side by a pile of firewood at least 6 feet tall, and on a third

side by woodland. Trial Ct. Op. at 6-7. The court observed that it was not an

area where the public would reasonably be expected to be welcome, due to

the surrounding woodlands and long and winding lane. Id. at 7.

We cannot agree with the suppression court that the area behind the

shed was within the curtilage of the home. Fourney’s property was set back

from the road and was surrounded by woodland, and the plants were located

behind the shed. The shed was not used as a dwelling; was not attached to

the home; was approximately 90 feet from the home itself; and was not

fenced or enclosed in any way. Cihylik, 486 A.2d at 992 The expectation of

privacy is not the determining factor in whether an area is curtilage. Id. at

991-992; Beals, 459 A.2d at 1267; Russo, 934 A.2d at 1201. Accordingly,

based upon the facts elicited at the suppression hearing, we conclude that the

trial court erred in determining that the area was curtilage and thus entitled

to an expectation of privacy. Gurung, 239 A.3d at 190.

The determination that the area was not curtilage does not end our

inquiry. The Commonwealth additionally contends that the police did not

conduct a search because the plants were in plain view. Commonwealth’s Br.

at 16. Fourney responds that the troopers did not sufficiently limit their

movements to places visitors could be expected to go while on his private

property and were trespassing when they viewed the marijuana plants at

issue. Fourney’s Br. at 27. The trial court, ending its examination at the

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determination that the shed constituted curtilage, did not discuss the plain

view doctrine in its opinion and order.

“Generally, a warrant stating probable cause is required before a police

officer may search for or seize evidence.” Commonwealth v. Bumbarger,

231 A.3d 10, 19-20 (Pa.Super. 2020). However, the plain view doctrine

provides that “when an officer is lawfully in a position to view an item, the

incriminating nature of which is immediately apparent, he may legitimately

seize that item.” Commonwealth v. Zhahir, 751 A.2d 1153, 1160 (Pa.

2000). This doctrine applies if:1) police did not violate the Fourth Amendment

during the course of their arrival at the location from which they viewed the

item in question; 2) the item was not obscured and police could see it plainly

from their lawful location; 3) the incriminating nature of the item was readily

apparent; and 4) police had the lawful right to access the item.

Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa.Super. 2012).

“[T]here is no reason [a police officer] should be precluded from observing as

an officer what would be entirely visible to him as a private citizen.”

Commonwealth v. Colon, 777 A.2d 1097, 1103 (Pa.Super. 2001). The plain

view doctrine is concerned with the seizure of evidence rather than a search

without a warrant. Id.

Commonwealth v. Weik, 521 A.2d 44 (Pa.Super. 1987), delineates

two categories of cases involving the plain view doctrine:

The first line of cases involves those situations in which the “view” takes place after an intrusion into a constitutionally protected area. Under this line of cases if the original

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intrusion is justified, such as by consent, hot pursuit, warrant or other, objects sighted in plain view will be admissible so long as the view was inadvertent.

The second line of cases involves situations where the view takes place before any intrusion into a constitutionally protected area. These cases are distinguishable from the first line of cases in two respects. First, because no intrusion into a constitutionally protected area takes place, Fourth Amendment rights are not involved and the requirement that the view be inadvertent is not applicable. Secondly, the warrantless seizure of evidence cannot be justified by the plain view alone.

Id. at 46. “[W]hile the visual observation of an article may not violate any

reasonable expectation of privacy, and thus obviate the application of the

Fourth Amendment, the seizure of the same article may trigger the protection

of the Fourth Amendment.” Commonwealth v. Milyak, 493 A.2d 1346, 1348

(Pa. 1985) (citations omitted).

In sum, we must determine whether the police had a legitimate reason

to intrude on Fourney’s property; whether the sighting of the plants falls under

the plain view doctrine; and whether the seizure of the plants was lawful under

the plain view doctrine. See, e.g., Weik, supra.

The Commonwealth attempts to analogize the instant case to

Commonwealth v. Cubler, 346 A.2d 814 (Pa.Super. 1975), where police

were investigating a complaint of vandalism by the appellant Cubler’s son. Id.

at 815. During the course of the investigation, police were informed by a

neighbor that a third person, Ettien, had thrown a black bag into a doghouse

at the rear of his house as officers approached. Id. The officer had personal

knowledge that the residence was under surveillance for suspicion of drug

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activity. He went to the rear of the house in a common walkway and observed

the black bag. Id. at 816. The officer seized and opened the bag, found

suspected narcotics, and, as a result, both appellants were arrested. Id. Police

obtained a search warrant for the house, and officers executing the warrant

found marijuana and pipes. Id. On appeal, this Court held that the officer’s

action of traveling by a common walkway where he saw the bag in plain view

did not constitute a search. The officer was thus in a lawful location when he

saw the bag, such that no unlawful seizure occurred. The Court concluded that

the officer could reasonably infer that criminal activity was afoot from his

personal knowledge that the house was under surveillance for drugs and that

the bag was abandoned on notice of police approaching. Id.

Here, viewing the testimony as a whole, we agree with the

Commonwealth that police officers were at least initially legitimately on the

premises when they went into the parking lot to respond to Truax’s report of

domestic violence. However, unlike Cubler, the plants were concealed

between a shed and a high wall of firewood. The plants were not visible from

the main road, the private road, or the gravel parking lot in which Truax gave

her statement. See Colon, 777 A.2d at 1103. Indeed, the officers would not

have discovered the plants, or have any reason to know of them, without

Truax’s intervention. Thus, although the plants were not within the curtilage

of the home, they were on private property in an area in which Forney, a

resident of the property, enjoyed a reasonable expectation of privacy.

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Although the officers here could lawfully enter the driveway and parking

area, they could not look behind the garage. They did not have a warrant or

consent to do so and the Commonwealth does not claim exigent

circumstances. The plants were not within plain view from the officers’ lawful

vantage point. The Commonwealth’s second issue also lacks merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/4/2022

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