
    STATE of Louisiana v. Lloyd A. COOK.
    No. K-4767.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 1986.
    Rehearing Denied Feb. 26, 1986.
    Writ Denied March 31, 1986.
    
      Harry F. Connick, Dist. Atty., and Pamela Moran, Asst. Dist. Atty., New Orleans, for relator.
    Brian Begue, New Orleans, for respon-dant.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BARRY, Judge.

We granted certiorari to review whether this search conducted pursuant to a warrant was based on probable cause. The magistrate or judge must decide whether there is a fair probability that contraband will be found in a particular place under all the circumstances. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for his conclusion that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The fact that the officers jumped a page fence and entered a neighbor’s yard without permission from the owner was omitted from the affidavit. There was no intentional mispresentation and the court should have considered the affidavit as though the omitted fact had been included and then evaluate it. State v. Lehnen, 403 So.2d 683 (La.1981). Since preference is to be accorded to warrants, marginal cases should be resolved in favor of the warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Durand, 461 So.2d 1090 (La.App. 4th Cir.1984).

Unlike the situation in State v. Roubique, 421 So.2d 859 (La.1982), the officers did not enter the defendant’s property in order to view the marijuana. There was no search prior to the warrant since they were clearly observing the marijuana from the property of another.

The test to determine whether Cook’s right to privacy was violated is not only whether he had an actual or subjective expectation of privacy but also whether his expectation was of the type society at large recognizes as being reasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Dupuis, 378 So.2d 934 (La.1979), cert. denied 449 U.S. 828, 101 S.Ct. 94, 66 L.Ed.2d 32 (1980).

The officers were on the property of another when they made their observations. The defendant had no reasonable expectation of privacy as to a hot house made of two fiberglass walls and a partial plywood roof situated in a yard with a chain-link fence. The marijuana plants were protruding through the makeshift roof and visible through the hole where a door might have been. The plants could have been observed by casual visitors to a number of neighboring yards.

The initial sighting from the neighbor’s property upon which the officers were arguably trespassing did not violate the defendant’s Fourth Amendment Rights since he had no reasonable expectation of privacy under these circumstances. State v. Denton, 387 So.2d 578 (La.1980); State v. Dupuis, supra. The initial viewing was not an intrusion into a protected area. See State v. Fearn, 345 So.2d 468 (La.1977). The officers obtained a warrant before they entered the defendant’s property.

Unless the omission [of factual detail] is willful and calculated to conceal information that would indicate that there is not probable cause or would indicate that the source of other factual information in the affidavit is tainted, the omission will not change an otherwise good warrant into a bad one. State v. Roubique, 421 So.2d at 863.

This writ is made peremptory. We find this seizure was pursuant to a valid warrant. The judgment granting the motion to suppress is reversed.

BYRNES, J., dissents.

BYRNES, Judge,

dissenting.

I must respectfully dissent from the position taken by the majority.

It should be noted initially that intentional omission of information from the search warrant affidavit is not an issue here. The trial court found that the omission was not intentional and this ruling has not been challenged. Thus, the majority discussion of State v. Lehnen, U.S. v. Ventresca, and State v. Durand is unnecessary.

The issue in this application is whether the trial court was correct in ruling that the officers’ illegal trespass on the property of the defendant’s neighbor resulted in an illegal, warrantless and exploratory search and that the information obtained as a result of the search was not negligable. The majority fails to point out that the reason for the officers’ trespass was to corroborate information given to them by a previously unknown anonymous informant. As the trial court correctly observed:

In the instant case the information obtained on the basis of the trespass was not negligible. In fact, the viewing of the hot house and the plants nestled out of sight in the backyard is the piece of information which would have persuaded a magistrate to sign the warrant. Had it not been for this corroboration, the warrant would not have had sufficient information to support its issuance, (emphasis in original)

Viewed in this light, the information obtained by the trespass, far from being neg-ligable, was essential to the validity of the warrant.

This fact alone is sufficient to distinguish this case from State v. Roubique, 421 So.2d 859 (La.1982). In Roubique, the court upheld the validity of a search warrant notwithstanding an unintentional illegal trespass by the police because other sources of information, independent of the trespass, were sufficient to justify the warrant. The trial court in the case before us was aware of this distinction as evidenced by the following language from its reasons for judgment:

In State v. Roubique, 421 So.2d 859, a warrant was obtained based on information gained through unintentional trespass on a road which was marked “Private, no trespassing”. The officer had not seen the sign and the sum total of his observation was a license plate number and make of a car. In Roubique the court held that the information obtained was so attenuated, from the illegal entry that it was to be admitted. Additionally, the court held that information obtained through the trespass was negligable (a license plate number and car make) and that the information obtained from a confidential informant on two occasions alone had sufficed for the execution of the warrant, (emphasis in original)

As previously observed, there was no independent source of information in this case beyond the previously unknown ana-nymous informer. Without the corroboration gained by the officers' illegal actions, a warrant could not have issued in this case.

The question then becomes whether defendant had a reasonable expectation of privacy in his neighbor’s yard. The majority relies on State v. Denton, 387 So.2d 578 (La.1980) and State v. Dupuis, 378 So.2d 934 (La.1979) as support for its position that no reasonable expectation of privacy existed. Each of those cases is distinguishable from the present situation.

In State v. Denton, the court upheld the warrantless search of a fish company's premises. The surveillance which led to the search had taken place on a private dock adjacent to the business. The court held that there was no reasonable expectation of privacy in the dock because “[although it was a private dock, it was located on a public navigable waterway (Bayou LaFourche) and their [the defendants] actions could have been observed by anyone passing on the waterway.” 387 So.2d at 584.

In State v. Dupuis, 378 So.2d 934 (La.1979) the court upheld the warrantless search of a truck and trailer. The search was made on the basis of observations made by the police from adjoining private property. Unlike Denton, the property in Dupuis was not on a public waterway or roadway. The court nonetheless found that it was not reasonable for defendants to expect that no one would observe their activities because “[t]here were no signs, fences or gates to exclude the public ... from the area.” 378 So.2d at 934.

In Denton and Dupuis the Courts’ conclusion that no reasonable expectation of privacy existed was based on the public’s easy and unrestricted access to the area where the illegal activity was observed. In the present case, the property on which the police trespassed was completely fenced and obviously private. The fence was there to “exclude the public.” Defendant’s backyard was not visible from the public street, it was only visible from the private property of his immediate neighbors. In my opinion, it was reasonable for the defendant to expect that the only people who would look into his backyard from his neighbors’ backyard would be the neighbors themselves or those persons who were there with the neighbors’ permission.

The facts of this case are almost identical to those in State v. Byers, 359 So.2d 84 (La.1978). In that case, the police acting on an anonymous tip, trespassed on private property to observe the illegal activities of the defendants. The property they trespassed on did not belong to any of the defendants. It was posted with no trespassing signs. A chain, strung between two concrete posts, blocked access to the land from the public road. The Supreme Court in a unanimous decision ruled that:

In the present case, the marijuana was not visible from the public road. The posted signs announced that the logging road was private and prohibited entry of the land. A chain barred access to the private road, though it was down at the time of the arrest and seizure. We conclude that under these circumstances the defendants had a legitimate expectation of privacy. 359 So.2d at 86.

Like Byers, the present case involves illegal trespass by the police on land not owned by the defendant but which is clearly marked as private (in this case by a fence). As in Byers, the marijuana was not visible from a public road.

In this case, the police jumped a fence onto private property to observe objects in defendant’s yard which they could not otherwise have seen. This was trespass under circumstances where there could be no doubt that the officers knew they were trespassing. Unlike State v. Fearn, 345 So.2d 468 (La.1977), cited by the majority, the initial viewing of the marijuana by the officers from the neighbors yard was not with the neighbor’s permission.

The information gathered by the illegal activity of the police in this case should not be use to support issuance of a search warrant. The trial judge clearly felt that the manner in which the officers made their observation tainted the process to such a degree that a warrant should not have issued. I agree.

The trial judge correctly granted the motion to suppress. I would deny the writ.  