Robert Fixel v. Louie L. Wainwright

492 F.2d 480, 1974 U.S. App. LEXIS 9227

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 1974
• Docket: 72-3714
• Status: Published

Opinions

INGRAHAM, Circuit Judge:

Petitioner Robert Fixel appeals from the district court’s dismissal of his petition for a writ of habeas corpus. Fix-el’s claim is that his conviction was based on evidence obtained as a result of an illegal search and seizure.

In late April 1970 Detective Sergeant - Joseph A. Valdes procured a search warrant to search petitioner’s home, an apartment in a four-unit apartment building, in Key West, Florida. Valdes, accompanied by Deputy Sheriff Sergeant George Knapp, proceeded to petitioner’s home to execute the warrant. When the officers arrived, Valdes instructed Knapp to conceal himself at the rear of the building and observe any activities that might occur. While watching the rear of the house, Knapp observed petitioner Fixel on three occasions leave the house and go to a particular place in the backyard. On each occasion Knapp watched petitioner remove a black shaving kit from beneath some rubbish located underneath a tree, but was unable to identify any object that petitioner was either removing or placing in the shaving kit.

While Knapp was watching the backyard, Valdes observed the front of petitioner’s house. Over a forty-five minute period, Valdes saw five or six people enter the building. Apparently each time someone entered Fixel woud go to the backyard, return and go back inside the building and then the visitors would leave. Finally, Valdes concluded his surveillance, met with Knapp and, while Knapp went into the backyard and got the shaving kit, Valdes executed the search warrant. Fixel was found in the apartment with three other persons, but no narcotics were discovered. Valdes testified that Knapp entered the apartment within two minutes after Valdes entered and had in his possession the black shaving kit from underneath the tree in the backyard. The bag and its contents were delivered to a chemical analyst, Henry Purcel, who testified at petitioner’s trial that the bag contained heroin. On the basis of this evidence, the jury found petitioner guilty for possessing the proscribed substance.

Petitioner appealed his conviction to the Florida Court of Appeals and that court affirmed his conviction. Without relying on the search warrant, the court of appeals held that “[t]he seizure was,, we think, incident to the lawful arrest.” Fixel v. State, 256 So.2d 27, 29 (Fla. App., 1971). The Florida Supreme Court denied certiorari without rendering an opinion.

Fixel petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Florida. The court upheld the validity of the search because it felt that probable cause for Fixel’s arrest was established independently of the warrant. As the arrest and search were substantially contemporaneous, the court stated that the trial court did not err in refusing to suppress the heroin. With regard to the warrant, the court noted that “the record is clear that the state abandoned the claim that the seizure was made through the issuance of said warrant.” Likewise, our analysis proceeds on the premise that the search here was war-rantless.

I.

The first issue is whether the search and seizure that revealed the heroin can be sustained as incident to a lawful arrest.¹ The Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), outlined the standard for conducting a search incident to a lawful arrest as follows:

“. . . When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest "itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . There is ample justification, therefore, for a search of the arres-tee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

Id. at 762-763. Measured against this standard, the facts of this case do not support a lawful search of the black shaving kit. When Valdes entered Fixel’s home, Fixel was in the apartment, obviously not within reach of the black shaving kit hidden in the backyard. Indeed, Knapp obtained the shaving kit from the yard and brought it inside the apartment. There is simply no convincing argument that the shaving kit, concealed in the backyard of the building, was within the “immediate control” of petitioner, who was inside the apartment. Thus we cannot conclude that “the law enforcement officials on the scene reasonably expect [ed] the arrested person to gain hold of a weapon or evidence in the area searched.” United States v. Jones, 475 F.2d 723, 728 (5th Cir., 1973); see United States v. Harrison, 461 F.2d 1127, 1128-1129 (5th Cir., 1972), cert. den. 409 U.S. 884, 93 S.Ct. 174, 34 L.Ed.2d 140 (1972).

We find support for this conclusion in our recent decision of United States v. Bell, 457 F.2d 1231 (5th Cir., 1972). In Bell the defendant was arrested at the door of his home. After Bell was removed from the premises to be taken before the magistrate, the investigating officers began to search his home and yard. Invalidating the officers’ search of the yard under the even broader pre-Chimel standard, see Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), Judge Clark, writing for the court, specifically noted that “we have found no case that would permit this search to extend to the yard. The search of the yard was clearly too remote in time or place from the arrest to be incident to that arrest. The search began after Bell had been taken away and continued for more than two hours.” United States v. Bell, supra, 457 F.2d at 1240. Although the facts in Bell reflect a search more remote in time and place than in the instant case, we feel that the search of petitioner’s backyard exceeded the limitations enunciated in Chimel.

II.

The second issue is whether Fixel’s right against unreasonable searches and seizures was offended when the officer physically entered his backyard and seized and searched the shaving kit thus revealing the heroin. The sacredness of a person’s home and his right of personal privacy and individuality are paramount considerations in our country and are specifically protected by the Fourth Amendment. The Fourth Amendment’s protection, however, extends further than just the walls of the physical structure of the home itself. The area immediately surrounding and closely related to the dwelling is also entitled to the Fourth- Amendment’s protection. In defining the surrounding area entitled to such protection, the courts historically have found helpful the common law concept of curtilage, meaning “yard, courtyard or other piece of ground included within the fence surrounding a dwelling house.” Marullo v. United States, 328 F.2d 361, 363 (5th Cir., 1964), quoting Webster’s Third New International Dictionary (1962). See United States v. Molkenbur, 430 F.2d 563, 566 (8th Cir, 1970); United States v. Davis, 423 F.2d 974, 977-978 (5th Cir, 1970); United States ex rel. Boyance v. Myers, 398 F.2d 896, 899 (3rd Cir, 1968); United States v. Mullin, 329 F.2d 295, 298 (4th Cir., 1964). When officers have physically invaded this protected area, either to seize evidence or to obtain a view of illegal activities, we have readily condemned such an invasion as violative of the Fourth Amendment. United States v. Davis, supra, 423 F.2d at 977; Texas v. Gonzales, 388 F.2d 145, 147-148 (5th Cir., 1968); Brock v. United States, 223 F.2d 681, 685 (5th Cir, 1955); see Gil v. Beto, 440 F.2d 666, 667 (5th Cir., 1971).

Applying these traditional property concepts to the facts of the instant case,² we are convinced that Fixel’s constitutional right has been violated. Although the record is unclear whether Knapp was physically encroaching on a constitutionally protected area when he made his initial observations, it is absolutely clear that Knapp unlawfully encroached on a protected area when he actually entered the backyard, seized the black shaving kit and searched it. Regardless of how suspicious the agents were that contraband was located on the premises, this fact alone does not justify a search of petitioner’s premises in the absence of a search warrant.³

The government argues that, even assuming that this dwelling is Fixel’s home and that Fourth Amendment protections are normally afforded such places, the multi-unit character of this residence results in a relinquishment of any right of privacy relating to the backyard. Because it is located in a four-unit apartment building, the government contends that Fixel’s home should not be entitled to the protection usually afforded the curtilage of a purely private residence. Like a motel or large apartment complex, this backyard is an area common to or shared with other tenants, is open to the neighbors in the adjacent building and thus not within the guarantees of the Fourth Amendment. United States v. Stroble, 431 F.2d 1273, 1276 (6th Cir., 1970); United States v. Freeman, 426 F.2d 1351, 1353 (9th Cir., 1970); Marullo v. United States, supra, 328 F.2d at 363; United States ex rel. Fletcher v. Wainwright, 269 F.Supp. 276, 278 (S.D.Fla., 1967). We cannot agree.

The backyard .of Fixel’s home was not a common passageway normally used by the building’s tenants for gaining access to the apartments. United States v. Freeman, supra, 426 F.2d at 1353. Nor is the backyard an area open as a corridor to salesmen or other businessmen who might approach the tenants in the course of their trade. Polk v. United States, 291 F.2d 230, 232 (9th Cir., 1961), after remand 314 F.2d 837, 838 (9th Cir., 1963). This apartment was Fixel’s home, he lived there and the backyard of the building was completely removed from the street and surrounded by a chain link fence. See Hobson v. United States, 226 F.2d 890, 894 (8th Cir., 1955). While the enjoyment of his backyard is not as exclusive as the backyard of a purely private residence, this area is not as public or shared as the corridors, yards or other common areas of a large apartment complex or motel. Contemporary concepts of living such as multi-unit dwellings must not dilute Fix-el’s right to privacy any more than is absolutely required. We believe that the backyard area of Fixel’s home is sufficiently removed and private in character that he could' reasonably expect privacy. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus Knapp’s actual invasion into this protected area and search of the shaving kit violates the Fourth Amendment.⁴

Finally, we emphasize that “[w]e do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case.”⁵ Having concluded that the search of Fixel’s backyard so offends constitutional principle, we order that his petition for habeas corpus be granted.

Reversed.

1 . Probable cause for the initial arrest of petitioner Fixel was established. An informer told law enforcement officials that a large quantity of narcotics was being sold on these premises. Using this same informer, the officers conducted a controlled purchase of marijuana, although it is not stated when the purchase occurred or if it was from Fixel. Furthermore, known traffickers in narcotics had been seen entering and leaving these premises. But most importantly, the officers observed the extremely suspicious actions of petitioner making trips to the backyard of his home and concealing the shaving kit there on the day of the arrest. In light of these circumstances, we think the agents could reasonably believe that a crime had been or was being committed. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Gonzalez-Perez, 426 F.2d 1283, 1286 (5th Cir., 1970); Johnson v. Middlebrooks, 383 F.2d 386, 387 (5th Cir., 1967).

2 . We emphasize that the warrant issued ostensibly authorizing the search of Fixel’s apartment, was not relied on by either the Florida Court of Appeals or the district court to justify the search and seizure of the heroin. Additionally, in oral argument the state conceded that tiie warrant was not such that it would authorize the search of the backyard.

3 . While our analysis holding the search here unlawful is founded largely on property law concepts, more recent Supreme Court decisions tend to discard such concepts when defining the individual’s “right to be let alone,” recognizing that they alone may be insufficient to protect this right. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Texas v. Gonzales, supra, 388 F.2d at 148. We rely on these principles simply because they assist in establishing the perimeters of the Fourth Amendment guarantees as they relate to the home. Therefore, we feel it is unnecessary to discuss the more nebulous concept of whether there could be a visual in-trusión in violation of the Fourth Amendment in the absence of an actual encroachment on the premises.

4 . The state attempts to justify the search and seizure of the shaving kit based on the “plain view” doctrine. It is argued that, when Knapp made his initial observations of petitioner in his backyard, he observed the bag and thus could seize and search it. This contention is unacceptable. As the Supreme Court delineated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 504 (1971):

“ . . . [Pjlain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a war-rantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”

Id. at 468. It is undisputed that Knapp actually entered the backyard and obtained the shaving kit. Because there was no warrant authorizing such an encroachment, the search and seizure were unlawful.

An additional difficulty with the state’s contention is that the law enforcement officers did not “plain view” the narcotics contained in the shaving kit, but only suspicious activities and the kit itself. The testimony at trial clearly establishes that Knapp could not identify any object that was being placed in or taken out of the bag. But in an attempt to verify his suspicions that the bag contained narcotics, Knapp entered the premises, seized the bag and searched it in contravention of petitioner’s Fourth Amendment rights.

The state also urges that “exigent circumstances” were present which justify the war-rantless search and seizure. It reasons that if the officers had not entered the premises and seized the shaving kit, subsequent sales of the narcotics would have depleted the evidence. How petitioner could have sold or otherwise disposed of the narcotics after the officers placed him under arrest and he was in their custody is inconceivable. After arresting the petitioner, the agents had ample opportunity to resort to the judicial process for the issuance of a warrant without fear of additional sales depleting the evidence. See United States v. Sokolow, 450 F.2d 324, 325 (5th Cir., 3971). See also United States v. Conner, 478 F.2d 1320, 1324 (7th Cir., 1973).

5 . Desist v. United States, 394 U.S. 244, 258, 89 S.Ct. 1030, 1039, 22 L.Ed.2d 248 (1909) (Harlan, J., dissenting).