A Man's Home is His Castle...
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...but not until it's finished:
It is hardly self-apparent that whether a dwelling is or is not "finished" is a legitimate way to answer the question of reasonableness, and certainly not more legitimate than the unambiguous intent of erecting a fence, gate and "No Trespassing" sign. The better question to ask than, "Is it finished?" is simply, "Is this warrantless search reasonable?" Which is just as easily rephrased as, "Would it have been unreasonable to require the officers to get a warrant first?" Phrased that way — phrased in any way that incorporates a presumption of liberty and privacy (which is itself the only reasonable presumption, or why have a Fourth Amendment in the first place?), the search was clearly unconstitutional.
This puny case in a puny Georgia court is not earth-shattering, and will not lead to a robust jurisprudence of what does and does constitute "finished" in the context of dwellings — complete with journal articles, symposia, moot court debates and circuit splits. I just found it a particularly egregious example of a particularly egregious body of law — one that is on my list of Worst Supreme Court Cases.
The case is Morse v. State, 2007 Ga. App. LEXIS 1161 (November 1, 2007).
An officer went to a site where defendant was building a home. It was fenced, and the gravel driveway was blocked by a locked gate. "No Trespassing" and "Beware of Dog" signs were posted at the entrance. The officer climbed over the gate and was later joined by another officer. The unfinished house on the property was framed but had no sheet rock or doors, and no one appeared to be living there. The property fell within the "open fields" doctrine and thus was not protected by the Fourth Amendment. The unfinished structure was not a "dwelling" under the Fourth Amendment and did not yet have the protection of curtilage. Defendant's effort to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection. While on the property, the officers could look at the serial number of a stolen trailer.Interestingly, my version of the Fourth Amendment does not contain the words "unfinished," "open fields" or "curtilage." These are all overlays added after the fact to dilute the plain meaning of the amendment's uncomplicated protection: no unreasonable searches.
It is hardly self-apparent that whether a dwelling is or is not "finished" is a legitimate way to answer the question of reasonableness, and certainly not more legitimate than the unambiguous intent of erecting a fence, gate and "No Trespassing" sign. The better question to ask than, "Is it finished?" is simply, "Is this warrantless search reasonable?" Which is just as easily rephrased as, "Would it have been unreasonable to require the officers to get a warrant first?" Phrased that way — phrased in any way that incorporates a presumption of liberty and privacy (which is itself the only reasonable presumption, or why have a Fourth Amendment in the first place?), the search was clearly unconstitutional.
This puny case in a puny Georgia court is not earth-shattering, and will not lead to a robust jurisprudence of what does and does constitute "finished" in the context of dwellings — complete with journal articles, symposia, moot court debates and circuit splits. I just found it a particularly egregious example of a particularly egregious body of law — one that is on my list of Worst Supreme Court Cases.
The case is Morse v. State, 2007 Ga. App. LEXIS 1161 (November 1, 2007).
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Posted by Kip on
8 November 2007
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