STATE OF FLORIDA, APPELLANT,
v.
THOMAS QUINTON BARNES, APPELLEE
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The Florida District Court of Appeal upheld a trial court's order suppressing marijuana plants seized from the defendant's backyard, holding that the use of a high-powered telescope by law enforcement to identify the plants violated the defendant's reasonable expectation of privacy and did not fall within the plain view doctrine.
The court held that the use of a high-powered telescope to identify the marijuana constituted an intrusion into an area in which the defendant had a reasonable expectation of privacy, and therefore the plain view doctrine could not justify the warrantless seizure. Law enforcement should have obtained a search warrant before conducting telescopic surveillance.
[1] The plain view exception to the warrant requirement does not apply when evidence is identifiable only through the use of a high-powered telescope, as such use constitutes…
[2] Government agents with probable cause to suspect criminal activity and a need for telescopic surveillance must apply for a search warrant.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the public to whom something is knowingly exposed must be 'the ordinary run of people, not those who happen to possess powerful and sophisticated devices and the curiosity to use them to spy on their fellows.'”
Establishes the key legal principle that sophisticated surveillance equipment removes something from 'plain view' and into the protected sphere of reasonable privacy expectations.
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Join FLexlaw to unlock all legal intelligenceA sheriff's deputy was informed marijuana was growing behind the defendant's mobile home. Using binoculars from a neighbor's property during daylight,…
The full statement of facts, procedural history, and disposition for this case are member content.
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WENTWORTH, Judge.
This is an interlocutory appeal by the state from an order granting defendant Thomas Quinton Barnes’ motion to suppress illegally seized evidence. The stipulated facts were as follows: Sheriff’s Deputy James Tucker was informed there was marijuana growing behind Barnes’ mobile home. From an adjoining neighbor’s property, during daylight hours, Tucker, using binoculars, saw a plant among other weeds and bushes in Barnes’ backyard, but could not identify the plant as marijuana. He therefore travelled to Lafayette County and borrowed a high-powered telescope from the Lafayette County Sheriff’s Department. Using this telescope, Tucker identified the plant as marijuana. Tucker left the area and returned at night with several officials, but without a search warrant. When Barnes walked home from a neighbor’s house to find out why the officers were there, he was arrested for possession of cannabis. The officers then went behind Barnes’ home and searched the yard, seizing one plant believed to be cannabis and four or five stems one-half inch in diameter and eight to ten inches long.
No reason was given for not obtaining a search warrant other than advice from the state attorney’s office that a warrant was not necessary. Between the officer’s daytime attempts to view the marijuana from the neighbor’s yard and his return at night with two additional officials, when the evidence was seized, a warrant could have been obtained. See Walter v. United States, - U.S. -, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). The state argues, however, that the plant was in plain view and could be seized without a warrant.
The law is clear that what a person knowingly exposes to the public is not the subject of fourth amendment protections. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But the public to whom something is knowingly exposed must be “the ordinary run of people, not those who happen to possess powerful and sophisticated devices and the curiosity to use them to spy on their fellows.” United States v. Taborda, 491 F.Supp. 50 (E.D.N.Y.1980). Upon such analysis, the use of a high-powered telescope in the instant case distinguishes it from Lightfoot v. State, 356 So. 2d 331 (Fla. 4th DCA 1978), cert. denied, 361 So. 2d 833 (Fla.1978), in which the seizure from appellant’s yard of marijuana plants, visible to an officer standing in a neighboring yard, was not an intrusion into an area in which appellant had a reasonable expectation of privacy.
The plain view exception to the warrant requirement cannot in our opinion be used to justify the seizure of evidence clearly identifiable only through a telescope, the warrantless use of which constitutes an intrusion into an area not reasonably expected to be exposed to the public. “If government agents have probable cause to suspect criminal activity and feel the need for telescopic surveillance, they may apply for a [search] warrant.” United States v. Kim, 415 F.Supp. 1252 (D. Haw. 1976). Otherwise, we conclude such conduct is an intrusion into an area in which there is a reasonable expectation of privacy, accomplished by special equipment not in general use. Id.; cf. Walter v. United States, - U.S. -, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).
We affirm the order appealed.
JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.
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Powell v. State, 120 So. 3d 577 (Fla. 1st DCA 2013)…Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (police officers’ “naked eye” observation into partially-covered greenhouse in home’s back yard from helicopter at 400 feet not a search requiring a warrant). Cf. State v. Barnes, 390 So. 2d 1243, 1244 (Fla. 1st DCA 1980) (officer’s use of high-powered telescope to view marijuana in back yard “is an intrusion into an area in which there is a reasonable expectation of privacy, accomplished by special equipment not in general use”). Police “k…
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Newberry v. State, 421 So. 2d 546 (Fla. 4th DCA 1982)…a flashlight or floodlight. Persons conducting criminal activities in the open at night assume the risk that they may be so observed, whether by police or others. In reaching our decision this court is not unmindful of the case of State v. Barnes, 390 So. 2d 1243 (Fla. 1st DCA 1980), and of the recent case of State v. Rickard, 420 So. 2d 303 (Fla.1982). In Barnes, the police, although having ample opportunity to do so, did not obtain a search warrant. Further, in that case there were no exigencies preventing…1 / 3
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Bernstiel v. State, 416 So. 2d 827 (Fla. 5th DCA 1982)…uspect criminal activity and feel the need for telescopic surveillance, they may apply for a warrant; otherwise, they have no right to peer into people’s windows with special equipment not generally in use. 415 F.Supp. at 1256. In State v. Barnes, 390 So. 2d 1243 (Fla. 1st DCA 1980), the First District approved of the rationale of Taborda and Kim. In Barnes, a police officer observed a plant growing on defendant’s property but was unable to identify it as marijuana with his binoculars. The observation was ma…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Katz v. United States, 389 U.S. 347 (U.S. 1967)
- Walter v. United States, 447 U.S. 649 (U.S. 1980)
- Rocco Anthony Conti v. State, 356 So. 2d 331 (Fla. 4th DCA 1978)