officers’ use of a ladder to look into the storage unit from above was not a search

Facts

In 2019, officers from the Yazoo County Sheriff’s Office were dispatched to Davis Mini Storage after Tim Davis, owner of storage facility, received a complaint from a customer about a strong odor of marijuana in the third climate-controlled building. Deputy Ferrell, one of the officers dispatched to the scene, stated that once he entered Building 3, he smelled the distinctive odor of what he knew to be marijuana based on his knowledge, training, and experience. Davis gave the officers permission to search the common areas in Building 3.

The officers walked the hallways and noticed that the smell was strongest among one set of units but would weaken as they moved beyond those units. According to Ferrell, the blowing of the air conditioner in the climate-controlled building made it difficult to pinpoint the source of the smell. Davis therefore provided a ladder to allow Ferrell to rise above the stream of blowing air and pinpoint the unit.

Ferrell climbed the ladder and determined the odor was coming from Unit 404. From that vantage point, he could see several large bundles in black trash bags. Davis informed the officers that Robert Fisher was leasing Unit 404. Investigator Gann subsequently obtained a search warrant for Unit 404, and the officers executed the warrant, opened the unit, and confirmed that the bags contained 31 kilograms of marijuana.

Gann then obtained an arrest warrant for Fisher and a search warrant for Fisher’s home. There, officers found marijuana, hydromorphone tablets, amphetamine tablets, methamphetamine, cocaine, and several firearms. Fisher was taken into custody.

Fisher was convicted of two counts of possessing marijuana, one count of aggravated trafficking of cocaine, one count of aggravated trafficking of schedule II methamphetamine, one count of trafficking amphetamine, and one count of trafficking hydromorphone and sentenced to 50 years. On appeal, Fisher argued the officer conducted an unlawful search when he used a ladder to look into his storage unit. MSC affirmed.

Analysis

Fisher contends that the officers conducted an unlawful search when they climbed a ladder and looked into a ceilingless storage unit. Fisher fails to mention, however, the search warrant the officers obtained prior to entering the unit. He challenges only the officers’ actions prior to obtaining the warrant. Therefore, our review is limited to whether an unlawful search took place when the officers looked into the storage unit.

A search occurs when the government either trespasses on a constitutionally protected area (see Jones) or violates a subjective expectation of privacy that society recognizes as reasonable in an attempt to find something or to obtain information {see Katz v. U.S., 389 U.S. 347 (1967)}.

A. Trespass

Under the trespassory test, there must be an intrusion into an area of the defendant’s that is constitutionally protected. Fisher has never claimed that the officers physically entered the storage unit prior to obtaining a search warrant. He merely argues that the act of looking over and into the storage unit he was leasing was unlawful.

The record reflects that the officers were called to Davis Mini Storage because of an odor of marijuana. At the owner’s request, the officers entered Building 3 and, following their sense of smell, narrowed the source down to a set of units. It was only when they could not further isolate the source due to the blowing of the air conditioner that they obtained a ladder from Davis. The officers were unaware that they could view the contents of the units from above. They were seeking to isolate the source of the odor.

It was only when Ferrell reached the top of the ladder that the officers realized the units were open. The officers remained in the common area and did not physically enter the unit until they had obtained a search warrant. The only intrusion into the unit was from the officers’ eyes, which cannot commit a trespass. See MSC Wilson v. State, 186 So. 2d 208 (Miss. 1966).

The eye cannot be a trespasser. So, also, the ear cannot be a trespasser, unless the person looking or listening is, at the time of the hearing or seeing, a trespasser. See MSC Goode v. State, 158 Miss. 616 (1930). At the time of the seeing, the officers were positioned in an area where they had permission to be. The officers did not commit a trespass and, therefore, did not conduct a search under the trespassory test.

B. Reasonable Expectation of Privacy

Under the reasonable expectation of privacy test, officers must violate a defendant’s expectation of privacy that society recognizes as reasonable. This test involves two components. First, the defendant must manifest a subjective expectation of privacy. Second, the expectation of privacy must be one that society is prepared to recognize as reasonable.

Fisher argues that he clearly had an expectation of privacy in the storage unit because he leased the unit and placed locks on the door. Therefore, he argues, when the officers looked into the unit, a clear violation of his Fourth Amendment right occurred.

Fisher fails to demonstrate, however, that he had either a subjective or a reasonable expectation of privacy in a storage unit open at the top. The fact that Fisher leased the unit and placed locks on the door does not establish that he subjectively expected privacy from someone looking into the unit. Had Fisher wanted to conceal the contents of his unit from onlookers, he could have covered the contents with something like a tent or a tarp. Moreover, Fisher fails to cite any authority regarding a person’s reasonable expectation of privacy in a storage unit with no ceiling. In fact, he fails to even argue in his brief that he had a reasonable expectation of privacy. Nevertheless, we find, based on several factors in this case, that Fisher did not have a reasonable expectation of privacy in the contents of the unit as seen by the officers from a ladder.

Here, the invaded place is a commercial storage unit without a ceiling. The unit is not a residence, a place that receives strong constitutional protection due to the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic. Instead, the unit is part of a commercial premises. And the expectation of privacy in a commercial premises is different from, and indeed less than, a similar expectation in an individual’s home.

According to Davis’s testimony, the commercial facility contains 450 units divided into eighteen buildings. Building 3 itself contained between twenty and thirty units. That meant there were potentially twenty to thirty lessees who, like Fisher, could access Building 3 to use their storage unit.

Building 3 was also accessible and controlled by the management of Davis Mini Storage. Management could have allowed unlimited access to the building to conduct maintenance or repairs, such as on the HVAC unit and light fixtures. Management also could have allowed access for pest control services or for prospective tenants to tour the facilities. Management had control over who had permission to be in Building 3, and they chose to give permission to the officers to search the common area. Management also had an interest in keeping its facilities free from the presence and smell of marijuana. In fact, in his rental agreement, Fisher agreed that he would not store any illegal goods in the unit and that he would not use the unit for any unlawful purpose.

In sum, Fisher leased a storage unit without a ceiling in a commercial facility that was accessible not only by management but also by many others. Additionally, Building 3 was controlled by management, which was entitled to allow anyone it desired to have access to the building, to search the building’s common area, and to use the facility’s ladder. Based on these factors, Fisher did not have a reasonable expectation of privacy in the contents of the ceilingless unit as seen from a ladder. Thus, the officers’ use of a ladder to look into the unit leased by Fisher was not a search under the reasonable expectation of privacy test.

When the officers climbed a ladder and looked into Fisher’s storage unit, they did not conduct a search under the Fourth Amendment of the United States Constitution or article 3, section 23, of the Mississippi Constitution. The officers were positioned in a common area with the permission of the building owner when they saw the bundles in the unit. Fisher likewise did not have a subjective or reasonable expectation of privacy in objects that were visible to the officers from the ladder. Because no search occurred, there was no violation of Fisher’s rights under either the Fourth Amendment or article 3, section 23.

 

https://courts.ms.gov/images/Opinions/CO165377.pdf