United States v. Michael Patrick Wheeler

The defendant-appellee, Michael Patrick Wheeler, is under indictment for five counts of violation of 18 U.S.C. § 922 (h) (possession by a convicted felon of firearms shipped or transported in interstate commerce), and one count of violation of 21 U.S.C. § 841 (a)(1) (possession of a controlled substance with intent to distribute). The physical evidence against Wheeler was seized on February 22, 1980, during the execution of a federal search warrant. Following a hearing, the district court ordered the evidence suppressed as being the fruit of a prior illegal search of Wheeler’s fenced yard by a San Diego County, California deputy sheriff. This is an appeal by the govern *1322 ment, under 18 U.S.C. § 3731 , of the district court’s suppression order. We reverse.

I.

The case turns on the reasonableness, under the Fourth Amendment to the Constitution of the United States and, arguably, under California law, 1 of certain actions of deputy sheriff Leonard Zuniga on Saturday morning, February 2, 1980. While he was on routine patrol at about 10 o’clock that morning, Zuniga was ordered by radio to go to 787B Dorothy Court in Chula Vista to meet with one Merguy and take a report on an…

dissenting:

Because the majority in this case places an untenably high burden on the private citizen in creating a legitimate expectation of privacy, I respectfully dissent. The two majority opinions, which rely on distinct although superficially similar analyses, will be discussed separately below.

I. Judge Hanson’s Opinion

As a starting point I assume, as Judge Hanson does, that the court below correctly characterized Zuniga’s actions as a search, albeit a search for a person. Doctrinally, we would thus seem to be placed squarely within the realm of the Supreme Court’s often quoted statement found in Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1972), that “a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” Id. at 219 , 93 S.Ct. at 2043 (ellipses in original), quoting Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). The exception Judge Hanson apparently relies on is the plain view doctrine, which authorizes warrantless seizures in certain limited circumstances.

A crucial element of the…

concurring in result:

I concur in the result reached by Judge Hanson but I base my decision on the cases alluded to in his footnote 7.

The activities of Officer Zuniga are not properly characterized as a search because he had a right to be where he was when he made the observations. Zuniga was with the landlord attempting to locate Wheeler to settle a civil dispute. “It is well settled that visual observation by a law enforcement officer situated in a place where he has a right to be is not a search within the meaning of the fourth amendment.” United States v. Orozco, 590 F.2d 789, 792 (9th Cir.1979); United States v. Copien, 541 F.2d 211, 214 (9th Cir.1976).

Wheeler had no legitimate expectation of privacy from visual intrusion into his yard. A six-foot fence such as Wheeler’s could easily be looked over by a person six feet or taller in height. In addition there was a gap in the fence through which anyone was able to see the yard and some of its contents. Wheeler also had tires stacked up next to the fence which any person passing by could stand on to look into the yard. I base my decision solely on these grounds and therefore do not reach the issue of whether an intrusion…

641 F.2d 1321 UNITED STATES of America, Plaintiff-Appellant, v. Michael Patrick WHEELER, Defendant-Appellee. No. 80-1390. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1980. Decided April 9, 1981. George D. Hardy, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellant. George C. Boisseau, Chula Vista, Cal., argued for defendant-appellee; Jan Ronis, Chula Vista, Cal., on brief. Appeal from the United States District Court for the Southern District of California. Before CHOY and NELSON, Circuit Judges, and HANSON, * Senior District Judge. HANSON, Senior District Judge: The defendant-appellee, Michael Patrick Wheeler, is under indictment for five counts of violation of 18 U.S.C. § 922 (h) (possession by a convicted felon of firearms shipped or transported in interstate commerce), and one count of violation of 21 U.S.C. § 841 (a)(1) (possession of a controlled substance with intent to distribute). The physical evidence against Wheeler was seized on February 22, 1980, during the execution of a federal search warrant. Following a hearing, the district court ordered the evidence suppressed as being the fruit of a prior illegal search of…