We find that the detective’s observation of tracks leading into building three did not constitute a search, and therefore, it was not in violation of the Fourth Amendment. We further find that there was sufficient probable cause to obtain the search warrant.
State v. Evenson
2022 – Ohio – 1336
First District Appellate Court
Hamilton County, Ohio
April 22, 2022
In August 2018, a representative from Evans Landscaping (“Evans”), contacted Cincinnati Police and reported a stolen large piece of equipment (“skid steer”), which had a tracking device on it.
About one week later, Evans informed Cincinnati Police Detective Mike Winstead that it had received a signal from the tracking device, which reflected that the skid steer was at 9333 Brehm Road in Colerain Township. Det. Winstead verified that the tracking device had “pinged” from the property. Det. Winstead went to the property to conduct a “knock and talk” to find out why the tracking device on a stolen skid steer was pinging from there.
Det. Winstead conducted a knock and talk here at 9333 Brehm Road, Cincinnati, Ohio. The events that followed led to a conviction and appeal.
The property included a ranch-style home and three storage buildings. There were two connected driveways; one led to the residence and the other was a longer driveway that led to the storage buildings. There were no fences to designate the boundaries of the property.
No one answered the door at the residence, perhaps because the occupants were out committing more felonious thefts? Det. Winstead walked along the longer driveway to each storage building looking for someone working on the property. At the third storage building, he saw “fresh track marks that would be made by a track-type vehicle similar to what had been described as stolen” leading to the inside of the building.
Det. Winstead provided Cincinnati Police Detective Charles Zopfi with the information that he had learned during the “knock and talk.” Det. Zopfi obtained a warrant to search the storage buildings for “stolen property, to wit: a Caterpillar, Model 279C, Compact [skid steer], Serial #MBT02804 and any other equipment associated with Evans.” Although police obtained four separate warrants, Defendant Mr. Troy Evenson does not assert on appeal that the second, third, or fourth were improper.
A skid steer similar to this one pictured was stolen and found at 9333 Brehm Road.
The affidavit on the search warrant contained the information that officers had received from Evans about its stolen equipment and the tracking device. It described the property, including the appearance of each building, and stated in pertinent part:
[O]ne of these storage building[s] appeared to have fresh marks in the driveway leading to the storage building … indicative of a track equipped type vehicle … affiant believes that the stolen [skid steer] … is being stored in one of the three storage buildings.
Once the warrant was granted, officers found a skid steer and a skid loader in a storage building, along with multiple other stolen items in plain view.
Mr. Everson was indicted on six counts of receiving stolen property in violation of O.R.C. § 2913.51(A).
The Trial Court Denied Mr. Evenson’s Motion to Suppress
Mr. Evenson sought to suppress all evidence seized from his property. Following a hearing, the trial court denied Mr. Evenson’s motion to suppress evidence. The court accepted Det. Zopfi’s testimony that Det. Winstead had gone to each of the buildings because he was looking for someone who might be working on the property. After “having no luck” at the first building, Det. Winstead moved on to the other buildings, where he observed the fresh tracks.
The court noted that Det. Zopfi had also testified that all three storage units were included in the initial search warrant, found the testimony of the officers to be credible, and concluded that the initial search warrant contained sufficient probable cause under the Fourth Amendment.
Mr. Evenson appeals his convictions, limiting his arguments to the propriety of the initial “knock and talk” on his property and to the first search warrant
Legal Analysis
In United States v. Hatfield, 333 F.3d 1189 (10th Cir. 2003), the Tenth Circuit Court of Appeals found that police officers’ observations of a back yard from outside of the curtilage—from a paved parking pad next to a house—did not constitute a search under the Fourth Amendment because the driveway was open to the public.
Det. Zopfi testified that Det. Winstead tried the residence and, finding no one there, walked along the longer driveway that connected the storage buildings. He stopped at each storage building in search of someone working on the property. There were no fences or signs prohibiting the public from entering the property. How a homeowner or renter keeps the property is indicative of how much privacy the person expects.
Based on Hatfield, the discovery of the tracks was not made during a search. We find that the longer driveway was not a part of the curtilage. Here, it took officers about one to two minutes to walk from the residence to building three. Building one is approximately 40.7 yards from the residence. Building two is approximately 45.3 yards from the residence. Building three is approximately 105.3 yards from the residence.
The record does not reflect that any “no trespassing” signs were posted. The 50-acre property, in general, was not enclosed by a fence. Neither the driveway nor the storage buildings were enclosed in a manner that shielded them from public view. And the officers did not enter any buildings before obtaining a warrant. Therefore, we find that there was no reasonable expectation of privacy.
Holding
We find that the detective’s observation of tracks leading into building three did not constitute a search, and therefore, it was not in violation of the Fourth Amendment. We further find that there was sufficient probable cause to obtain the search warrant.
Lessons Learned:
- Cincinnati Police Detective Mike Winstead did not violate the Fourth Amendment, in part, because he did not trespass upon Mr. Everson’s curtilage. What is curtilage? “At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life, (citation omitted) and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended the Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.”. Oliver v. United States, 466 U.S. 170, 180 (1984) In this case Mr. Evenson could have created curtilage of the buildings in the back of his property if he had placed a sign indicating “no trespassing”. At minimum it would be a legal caution to trespassers and law enforcement that they could not go beyond the sign. As you examine the Google photo of the property you can see how far off the main road the home and buildings Det. Winstead observed. As identified above, Det. Winstead was simply trying to contact a home occupant to discuss why the stolen skid steer GPS was pinging on the property.
- This case should be contrasted Collins v. Virginia, 138 S.Ct. 1663 (2018). In that case a stolen motorcycle was suppressed because law enforcement trespassed upon Mr. Collins’ curtilage to search. There officers lifted a tarp over a motorcycle the officers suspected to be stolen. The officers had a gut feeling and it was correct. However, the officer violated the Fourth Amendment and the motorcycle was suppressed. For more on curtilage analysis see A Facebook Photo Helps Establishes Probable Cause … But was it Enough to Search the Curtilage Without a Warrant?.
- Both Det. Winstead and Det. Zopfi should be commended for working in concert to utilize the GPS technology, apply an old-fashioned gumshoe knock and talk and develop the information to enough probable cause to obtain a search warrant. This teamwork was nothing short of a Fourth Amendment symphony. Well done detectives!
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