IN THE SUPREME COURT OF OHIO 08-1435 STATE OF OHIO
Appellee, On Appeal from the Fulton County Court of Appeals V. Sixth Appellate District
DONALD F. KOLB Court of Appeals
Appellant. Case No.07FU16
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT DONALD F. KOLB
Gregory L. VanGunten(0009666) 106 Main Street Delta, Ohio 43515 (419) 822-3324 FAX : (419) 822-3887 Email: gvan¢unten&ahoo.com Counsel for Appellant, Donald Kolb Gary L. Smith, Esq.(0043604) Fulton County Assistant Prosecutor 123 Courthouse Plaza Wauseon, Ohio 43567 (419) 337-9240 FAX:(419) 337-9294 Email:g s mithafultoncountvoh.com Counsel for Appellee, State of Ohio
JUL 23 10Q9 CLERK OF CpURT SUPREME COURT OF OHIO TABLE OF CONTENTS
EXPLANATION TO WHY THIS IS A CASE OF PUBLIC INTEREST 1
STATEMENT OF THE CASE AND FACTS 3
ARGUMENT 5-13 Proposition of Law No. I: Police intrusion into a posted driveway and entry into the curtilage to seize and detain the resident for purposes of issuing a minor misdemeanor traffic citation, implicates the protections afforded citizens under the Fourth Amendment of the U.S. Constitution and Article I, Section 14 of the Ohio Constitution. 5
Proposition of Law No. II: Where suppression of evidence is predicated upon police non-consensual warrantless entry onto the curtilage, the State bears the burden of proof on the curtilage issue. Upon appeal, the Appellate Court should review the lower court's factual findings for substantial competent evidence and review de novo the lower court's legal conclusion as to whether the search or seizure occurred within the curtilage. 10
Proposition of Law No. III: The doctrine of "knock and talk"is an implied consent doctrine which recognizes the right of the police to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants, not the right, without a warrant or a warrant exception, to make a general investigation on the curtilage or the right to seize or detain the resident for questioning. 12
Proposition of Law No. IV: Rural residents of this state may use their automobiles to retrieve their mail from their roadside mailboxes without violating RC §4511.66, so long as they live within a "residence district" as defined in RC §4511.01(00). 13
CONCLUSION 14
CERTIFICATE OF SERVICE 14
APPENDIX Appx. Page Opinion and Judgment Entry of The Sixth District(June 30, 2008) 1-9 EXPLANATION TO WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION
This court has accepted jurisdiction in State v, Kevin Peterson, now pending as case
#20072232. Peterson is a nighttime search case involving knock and talk on the curtilage, and the constitutional authority of the police to leave the sidewalk and driveway of an urban residence to position themselves to look inside a window of the side yard. This case involves a rural knock and talk scenario, on "posted" property, wherein the police entered the curtilage at night with the acknowledged purpose of seizing the resident on his driveway. There are huge constitutional implications for exempting the front porch, driveway, and front sidewalk areas of the curtilage from the constitutional protections otherwise afforded the curtilage. The Peterson case does not involve this issue and it is proposed that the cases be consolidated for a more full exploration of the complexities of curtilage law. The following table presents the court with a general comparison:
PETERSON KOLB
Location of Residence: Urban Rural
General Description No Fence No Fence of residence at time Not "posted" "Posted " fintrusion: No enclosure Enclosed by woods Visible from street Not visible from street
Time of Intrusion: Night-time Night-time
Area ofpolice Action: Side yard Driveway Next to window Next to porch Not far from sidewalk 200' from public road
Type ofpolice action. Search through window Seizure of resident
Proported Authorization: Knock and Talk Knock and Talk, Purported probable cause Violation of Knock and talk alleQed: I)Window peeping 1)Minor misdemeanor Trespass Trespass, seizure 2)Knock and talk 2)Knock and talk Unreasonably intrusive Unreasonably coercive
Stated Intention To conduct knock To seize the homeowner ofPolice: and advise
-1- Unlike Peterson, this case presents the related proposition, preserved on appeal, that under
principles of federal law, the state has the burden in curtilage cases at the trial level to prove the area
in question is not curtilage. The U.S. Supreme Court has not addressed this issue. This burden of
proof if of critical concern as many cases in Ohio appear to have imposed this burden upon the
defendant, in violation of principles otherwise announced by the U.S. Supreme Court. The question
of curtilage is a mixed question of law and fact, but without guidance on the trial court burden of
proof, Ohio jurisprudence has chilled Fourth Amendment rights.
Both Peterson and this case present the important question of the rights of the police to
trespass on private property to carry out their "good faith" police duties. As this court knows, many
decisions, including one by this court, appear to sanction police trespass for investigatory purposes.
The State of Ohio in the Peterson appeal, for example, urges State v. Buzzard, (2005)112 Ohio St.
3d 451, in this regard. This case presents the court with the more foundational question: by what
authority have courts in this state granted the police an exemption from the statutory law of trespass,
to enter posted residential property(curtilage) without a warrant or warrant exception? The Ohio
Legislature is the authorizing body for police powers; see RC § 2935.03. Trespass authority has not
been extended to Ohio police under this statute. This is no oversight as the Legislature has
specifically exempted only two forms of government agents from the law of trespass: dog wardens
and eminent domain officials. See RC § 1531.14 and RC § 163.03.
This case also presents an excellent companion to the Peterson appeal because it is strenuously submitted that the Sixth District has misapplied the "reasonable expectation of privacy" test in this curtilage case. See Katz v. United States (1967) 389 U.S. 347. Both the home and the curtilage are "constitutionally protected areas" explicitly entitled to "heightened expectations of privacy". By focusing solely on the Katz "reasonable expectation of privacy "test, and placing the factual burden to demonstrate that expectancy on the defendant, the appellate court eironeously failed to consider U.S. Supreme Court historical precedent linking Fourth Amendment protections to residents' proprietary right to exclude the public. The Fourth Amendments's proprietary protection
-2- has not been abandoned by the Court; but rather supplemented with the Katz 'urisprudence.
Finally, this case presents a smaller matter involving huge implications to the rural residents of this state with roadside mailboxes. The Sixth District, in an unprecedented decision, has declared illegal the use of automobiles by rural citizens to pick up their roadside mail. The court's decision erroneously found such conduct to be a violation of RC §4511.66 (illegally stopping on a highway), and criminalizes over 75 years of rural conduct in Ohio. If this decision stands, rural residents across the state would be required to pick up their mail on foot. This, in turn, would present safety risks to rural residents, many of whom are injured every year by retrieving their roadside mail on foot.
STATEMENT OF THE CASE AND FACTS
Defendant/Appellant (Mr. Kolb) was observed by a Highway Patrol Trooper at approximately
9:39p.m., on March 15, 2007,picking up his mail from his roadside mailbox in his automobile with his four-ways activated. Upon retrieving his mail, Mr. Kolb turned on his right turn signal and proceeded to turn safely into his private driveway directly across the street. Mr. Kolb proceeded some
200 feet up his private drive and parked his vehicle next to his home and attached garage. Believing that he had witnessed a misdemeanor traffic violation of RC §4511.66 (Prohibition of stopping on
highways), the Trooper activated his overhead lights just as Kolb was entering his drive and turned
in behind Mr. Kolb for the stated purpose of detaining Kolb to issue him "a waming" relating to this
alleged traffic infraction. The Trooper proceeded past a large "no trespassing" sign posted on a tree
at the driveway's entrance and radioed in that he was proceeding onto a "private drive" incidental to
this stop. Kolb was not aware of the Trooper's overhead lights until he was approaching his home
approximately 200' down his private driveway. No allegation ofhot pursuit or exigent circumstances
is ofrecord. (All of the foregoing being documented in a video of record.) Mr. Kolb lives in this rural area alone, on approximately 3 acres of wooded property; his
home sits in a well-manicured clearing surrounded on all sides by the woods except for the posted
driveway entrance itself There are no sidewalks in this rural area, no neighbors can see his home, and
people "passing by" at night cannot see it. During the day, people can glimpse the home up the
-3- narrow driveway only as they are driving by on a 55 mph state route.
Mr. Kolb parked his vehicle in front of his attached garage, exited his vehicle, and was
ordered by the Trooper not to move and to get his hands out of his pockets, all this being
approximately 10 feet from his garage and adjacent to his front porch, (It is uncontested that Mr.
Kolb was "seized" in the constitutional sense and prevented from entering ht.s home.)
Mr. Kolb testified that he mowed and maintained the area, sat on the front porch area
immediately to the right of the area of seizure, and played with his dog in this area. Photographs of
record show a separate carport next to the drive and standing next to the carport in the mowed area
is a lawn ornament, a standing deer. Immediately to the right is a flag pole with the American flag.
After discussing the supposed "improper stopping" incident, the Trooper continued to detain
Kolb to do field performance tests, and ended up taking him into custody, charging him ultimately with OVI andthe RC§ 4511.66 improper stopping offense. Mr. Kolb, filed a Motion to Suppress all
evidence in the Fulton County Western District County Court. This motion was predicated upon the
Trooper's warrantless unconstitutional intrusion into the curtilage, under both the Federal and Ohio
Constitutions, and the lack of probable cause for Mr. Kolb's initial seizure. A suppression hearing
was held on May 16, 2007, and the Motion to Suppress was denied in a Judgment entry filed June
6, 2007. The matter was duly appealed to the Sixth District Court of Appeals and on June 30, 2008,
the Court issued its decision and Judgment Entry affirming the trial court in all respects.
The Court of Appeals erred in ruling that Mr. Kolb was not upon his curtilage at the time of
his seizure, and incidentally, it erred in failing to apply the proper standard of proof on the question
of curtilage. Further, the Sixth District failed to apply the proper standards of appellate review for
such constitutional determinations and erred in finding "probable cause" predicated upon Mr. Kolb's
puiported improper mail pick-up.
It is respectfully submitted that review of this case, in conjunction with Peterson, will permit
the court to more comprehensively provide guidance in the areas of curtilage and knock and talk.
-4- ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: Police intrusion into a posted driveway and entry into the curtilage to seize and detain the resident for purposes of issuing a minor misdemeanor traffic citation, implicates the protections afforded citizens under the Fourth Amendment of the U.S. Constitution and Article I, Section 14 of the Ohio Constitution.
The Supreme Court in Oliver v. United States, 466 U.S. 170.180 (1984), stated that "the curtilage ... warrants the Fourth Amendment protections that attach to the home. The Court reaffirmed this position in Dunn v. United States, 480 U.S. 294 (1987).
The Sixth Circuit, in Widgren v. Maple Grove Township (2005) 429 F.3d 575, decided an extremely similar case to the one at bar involving a curtilage determination for a residence in a clearing situated on 20 acres of wooded land. The clearing was "routinely mowed and a clear line marked the perimeter of the mowed portion. The cleared area, which was not enclosed by a fence, contained a fire pit, pruned trees and a picnic table, but no other noticeable landscaping or improvements." Id. at 577-578. The driveway was posted with a "no trespassing" sign. Widgren's home was "plainly visible from a neighboring property and from the air." Id at 583. The court applied the Dunn factors and determined the clearing to be curtilage. The Sixth Circuit had issued a previous curtilage ruling in United States v. Jenkins (1997) 124 F.3d 768, observing:
"...No one could mistake the yard, and its neatly mowed lawn and garden arrangements, for the unkept open fields composing the remaining portion of defendants' rural property. See Reilly, 76 F.3d at 1279 ('The park-like appearance of the area made it readily apparent to observers that the area was private.')." Id. at 773.
Without comment on the Sixth Circuit cases, the Sixth District determined that the
area of seizure in this case was not within the curtilage. The Sixth District further failed to distinguish or even mention decisions by State Supreme Courts around the country: Wisconsin v.
Matwick (2000) 231 Wis 2d 801, 820-821 (finding of curtilage where "low cut weeds" extended approximately 20 feet around unfenced house surrounded by woods except for driveway); 'fhe People v. Cayetano Calderon Camacho (2000) 23 Cal. 4" 824; 3P 3d 878 at 828(finding of curtilage on the side lawn of a home with "no fence, no sign proclaiming "no trespassing", no impediment to entry") and Idaho v. Christensen (1998) 953 P 2d 583, 587:
-5- " We note that this is not a case where the message to the public was ambiguous. The no trespassing sign was clearly posted on a gate across the only public access to the property. ...in short, Idaho citizens, especially those in rural areas, should not have to convert the areas around their homes into the modern equivalent of a medieval fortress in order to prevent uninvited entry by the public, including police officers."
In its decision below, the appellate court expressly adopted the proposition that the driveway immediately adjacent to a family residence becomes "a public place". In doing so, the court relied upon the First District's decision in State v. Eberhart, 2002 Ohio 1140 (..."The doorway to a residence, a porch, or the resident's driveway may be considered a public place even though it is on the homeowner's property", Id at 12).The Sixth District implicitly determined that a driveway, sidewalk, and front porch of homes that are visible from any public vantage point are the same as if those places were open fields.( See Oliver supra: although posted, "open fields" are not entitled to
Fourth Amendment protection.) Such a proposition stands in stark contrast to the Oliver and Dunn decisions which define "open fields" quite differently. See Oliver, 466 U.S. 175-181.
The Sixth District had previously decided State Y. Woljevach 2005 App. LEXIS 2038 wherein the court suppressed evidence of marijuana derived while officers were walking around a bam in a posted area determined to be curtilage:
"It has been held that the only area of the curtilage where officers may go are those impliedly open to the public. This would include walkways, driveways or access routes leading to the residence... `no trespassing' signs and the like are an indicia that a property owner or occupier expects privacy within a certain area of the curtilage..." Id at p.6.
This leads to the question: Why would the grass around a barn on posted property be entitled to Fourth Amendment protection, whereas the driveway, front walk and porch immediately in front of a home only deserve, "open field" status? This is, of course, the sort of question that Peterson presents, only in reverse: Why would the grass on Peterson's side yard be entitled to more Fourth
Amendment protection than the driveway, front steps or porch? See (2004)" Fourth Amendment Yard
Work: Curtilage's Mow-Line Rule", 56 Stan L. Rev. 943.
It is submitted that the constitutional error in this case arises from four sources:
1. The Sixth District decision ignored the unrefuted evidence of record(the video) when it
found the driveway area of seizure to be "observable from the roadway"(pg.8 of Decision). Absent
-6- the Trooper's physical intrusion(trespass), the area was not observable after dark. In aerial
surveillance cases, the Supreme Court has made clear that "the home and its curtilage are not necessarily protected from inspection that involves no physical invasion." Florida v. Rilev, (1989)
488 U.S. 445, 449(emphasis added). Moreover, the Supreme Court has clearly stated:
"To require individuals to completely cover and enclose their curtilage is to demand more than the precautions customarily taken by those seeking privacy". Florida v. Riley supra, at 454. (O'Connor concurring, quoting Justice Powell, concurring in Rakas v. Illinois 439 U.S. 128, 152)"California v. Ciraolo (1986) 476 U.S. 207, 212-213.
What the jurisprudence has established is that the viewing of something from a place where one is otherwise entitled to be is not a search under the Fourth Amendment. Indeed, in Peterson, the side yard, being relatively close to a public sidewalk could be seen from that sidewalk; why should
Kolb's driveway, 200' distant from the public road, be afforded less Fourth Amendment protection when both areas in question were within 10' of the residence?
2. While the driveway, front porch and sidewalks of a residence "may" be considered public places for purposes of knock and talk, the same principle does not apply to these areas if they are posted. "Knock and talk" is an investigative procedure permitting the police to enter curtilage by way of the driveway, sidewalk and front door to talk to the resident. It is a judicially sanctioned police investigatory tool predicated upon implied consent for such intrusion. Beyond the fact that the posting of no trespassing signs has universally negated such implied consent under the knock and talk doctrine, the Sixth District has extended the knock and talk doctrine to embrace a non-consensual encounter: the seizure of the resident. This is unprecedented in the Federal Courts, absent a warrant exception, and appears only to be sanctioned by the Sixth District, again following Eberhart. The constitutional violation here arises not from what the police may lawfully investigate from a public place, it arises from what the police may lawfully seize in a private place. It is clear that warrantless seizure of a resident's garbage on curtilage violates the Fourth Amendment,(Cf. California v.
Greenwood (1988) 486 U.S. 35 at 40-43); why should seizure of the resident be permitted?
3. The Sixth District, while misapplying the Katz "reasonable expectation of privacy test", failed to weigh into its constitutional analysis that the curtilage, like the home, is a "constitutionally
-7- protected area". Cf. Silverman v. United States, supra, at 510-512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area") In Kyllo v. United States (2001) 533 U.S. 27 at34, the Supreme Court acknowledged that the "reasonable expectation of privacy" test is rather "circular, and hence subjective and unpredictable" The "constitutionally protected area" test inherently provides a more objective and secure preservation of historical Fourth Amendment interests. See People v. Camacho supra. (Brown concurring) 3P 3d 878 at 898 ("when a case involves the search of a place, the Katz approach may be entirely unnecessary to determine whether it was reasonable under the Fourth Amendment".) See also LaFave; (2007) Search & Seizure at § 2.7, 2.2, 2.3; (2005) "Open Fields in the Inner City:
Application of the Curtilage Doctrine to Urban and Suburban Areas" 15 Geo. Mason U. Civ. Rts. L.J.
297. In Rakas v. Illinois (1978) 439 U.S. 128, the Court has specifically commented on this point.
"Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Conunentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest ... But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment." Id., fn 12, at 143,(emphasis added).
In Soldal et ux. v. Cook County Illinois (1992) 506 U.S. 56, at 64 the court further stated:
"Respondents rely principally on precedents such as Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) ... to demonstrate that the Fourth Amendment is only marginally concerned with property rights. But the message of those cases is that property rights are not the sole measure of Fouith Amendment violations... There was no suggestion that this shift in emphasis had snuffed out the previously recognized protection for property under the Fourth Amendment. Katz, in declaring violative of the Fourth Amendment the unwarranted overhearing of a telephone booth conversation, effectively ended any lingering notions that the protection of privacy depended on trespass into a protected area. In the course of its decision, the Katz Court stated that the Fourth Amendment can neither be translated into a provision dealing with constitutionally protected areas nor into a general constitutional right to privacy. The Amendment, the Court said, protects individual privacy against certain kinds of governmental intrusion, `but its protections go further, and often have nothing to do with privacy at all.' 389 U.S. at 350."
-8- 4. The undersigned acknowledges that there is currently a degree of confusion about
whether driveways, and entry walkways on the curtilage are entitled to the curtilage's Fourth
Amendment protections. That is why this appeal is sought. The U.S. Supreme Court has not intimated such a proposition in its curtilage cases; it has intimated the opposite by preserving "private property" concepts in its expectation of privacy jurisprudence. Further, at least two other state Supreme Courts have seen this argument waived. The Supreme Court of Virginia has stated:
"Upon rehearing in banc, the Commonwealth conceded that the driveway was within the curtilage of the Robinson's home and this question was, therefor, not before the entire Court of Appeals." Robinson v. Virginia, (2007) 639 S. E. 2d 217 at 222.
Likewise, the Supreme Court of Idaho noted:
"The State admits that by approaching Christensen's house by way of the driveway, Kelly was within the curtilage . . ." Idaho v. Christensen (1998) 953 P.2d 583, 588.
But see United States v. Diehl, 276 F. 3d 32, 39(First Circuit,) 2002:
"On scrutiny, the driveway cases cited from this circuit and others do not stand for the proposition urged by the government, that "there is no Fourth Amendment protection in driveways'... We noted in our prior conclusion that " there is no expectation of privacy in a driveway that is exposed to the public'...".(quoting United States v. Roccio, 981 F 2d 587, 591 (1S1 Cir. 1992).
This statement in koccio has not been approved bythe U.S. Supreme Court and it raises many questions. Aren't all driveways, by definition, "exposed to the public" in the sense that they connect to a public road? Do driveways carry a greater " expectation of privacy" after dark as opposed to high noon? Further, such judicial inroads into the curtilage doctrine would likely result in
"curtilage" being a sort of cut and paste arena where the "area around the home to which the activity of home life extends", cf. Oliver, is judicially pieced together by excluding certain front porches, driveways and sidewalks generally observable from a public place. But all curtilage is observable from the air. Is the driveway still a public place if it winds through woods to get to the clearing?
Would the porch at the end of the winding driveway be curtilage, or also a "public place"? How about a rule that says "if it is mowed, it is curtilage", if it is paved or stoned, it is not? Historically, from what constitutional source could one derive the resulting Fourth Amendment principle? And finally, what would happen to Oliver's stated notion that "for most homes, the boundaries of the
-9- curtilage will be clearly marked" and "easily understood from our daily experience"? (Oliver, supra
466 U.S. at 182 n.12). Fashioning the jurisprudence for such an exception would be an invitation to chaos. And even if the jurisprudence could take proper forrn, would not the exception itself tend to
"chill" Fourth Amendment rights? While the examples may strike the court as ridiculous, it should be evident to the court that this whole confused mess arises from a single source: a misapplication ofthe reasonable expectation ofprivacv test that has so clearly manifested itself in the knock and talk cases. These are serious constitutional questions that affect all residents and can be remedied by a simple understanding: when it comes to Fourth Amendment protections on the curtilage, the U.S.
Supreme Court has clearly not abandoned its constitutionallkprotected area jurisprudence. The police can see what they may from a "public" position but they cannot enter either the home or posted curtilage without a warrant or a warrant exception.
Finally, even assuming the "right" of the police to enter the curtilage via the driveway and walkways under such "implied consent" knock and talk doctrine, and assuming furthermore that this right is not affected by a no trespassing sign, this court has held that:
"A person who admits a police officer to his premises in compliance with the officer's request for an interview does not thereby waive his constitutional immunity from unreasonable searches, nor does he thereby consent to a search of the premises." City of Lakewood v. Smith (1965) 1 Ohio St.2d 128, Paragraph 1 of the syllabus.
Proposition of Law No. II: Where suppression of evidence is predicated upon police non- consensual warrantless entry onto the curtilage, the State bears the burden of proof on the curtilage issue. Upon appeal, the Appellate Court should review the lower court's factual findings for substantial competent evidence and review de novo the lower court's legal conclusion as to whether the search or seizure occurred within the curtilage.
The U.S. Supreme Court has not explicitly decided where the burden of proof lies on the
question of "curtilage". Generally, the burden of proof to show that a warrantless search or seizure
is lawful is on the government. Mincy v. Arizona (1978) 437 U.S. 385, 390-391. Citing Mincv, the
Kansas Supreme Court has succinctly stated:
"Because the state alleges the area is not curtilage, it therefor has the burden of proving that point. Kansas v. Fisher (2007) 154 P.3d 455 at 467.
As for the standard of review on appeal, Kansas v. Fisher, supra , looked at the various
-10- decisions and sided with what the court termed "the recent trend to treat the curtilage issue as a mixed question of law and fact..." finding that they review the trial court's factual questions for
"substantial competent evidence and review de novo the district court's legal conclusion whether a particular seizure occurred within the curtilage." Id. At 467-468
While the Six District acknowledged its obligation for de novo review at p.5 of its decision, it is respectfully submitted that it ignored it in the remainder of the opinion. This proposition is based on three points: 1. After reviewing the trial courts factual findings, the Sixth District stated that those
"findings regarding curti(age are supported by competent, credible evidence". But approximately one and one-half pages of Appellate brief were consumed setting forth four specific evidentiary objections to those same trial court findings; the most important of which were that:
a. the area where the defendant was stopped, at the time of the stop, was not observable from the roadway absent intrusion of the Trooper, all as evidenced by the video and unrefuted testimony.
b. the trial court's factual finding that the area in question was not surrounded by an "enclosure"is erroneous. The testimony and photographic exhibits both reveal that the home clearing was enclosed on all sides, except for the narrow driveway, by the woods. The case law supports the proposition that an "enclosure" in the Dunn sense does not have to be artificial; i.e. a fence.
The Sixth District failed to independently review these factual matters in its opinion.
2. The court below made no attempt to distinguish any of the curtilage cases provided it from the Sixth Circuit or the State Suprerne Courts. It cited no "curtilage case" precedent for its holding at all, citing only the knock and talk case of Eberhart.
3. Although briefed, the Sixth District made no ruling on the trial court burden ofprooffor curtilage. In the absence of answering this threshold question, any de novo review becomes suspect, especially where the court ignored the evidentiary facts of record mentioned above. It is respectfully submitted that these circumstances, in combination, fail to evidence any proper de novo review. Proposition of Law No. III: The doctrine of "knock and talk"is an implied consent doctrine which recognizes the right of the police to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants, not the right, without a warrant or a warrant exception, to make a general investigation on the curtilage or the right to seize or detain the resident for questioning.
In an article recognizing its constitutional limitations, a good definition of "knock and talk" is set forth candidly in the F.B.I. Law Enforcement Bulletin:
"Courts have described the knock and talk technique as `a noncustodial procedure where the officer identifies himself and asks to talk to the home occupant anc, then eventually, requests permission to search the residence'. The knock and talk technique is essentially a form of consensual encounter that occurs at a residence. One court examining a knock and talk case noted `[t]he utility of this procedure is obvious: it avoids the necessity of securing a search warrant from a judicial officer'. Bulletin, August 2006, Vol. 75, No.8, pg. 22.
Where knock and talk becomes coercive, as opposed to consensual, it violates the Constitution.
United States v.Thomas, 430 F 3d 274(6th Cir. 2005) See also United States v. Adeveye 359 F 3d
457(7th Cir. 2004). For a thorough discussion citing cases collected in the knock and talk arena, see
(2008) "It Doesn't Matter What They Intended: The Need for Objective Permissibility Review of
Police-Created Exigencies in "Knock and Talk" Investigations". 41 Suffolk U.L. Rev. 561 at 582-
583. The coercive nature of the police action here denies its constitutionality.
While the driveway, front porch and sidewalks of a residence may be considered(on non- posted curtilage) to be "implied invitations" for purposes of knock and talk, they are certainly not places the Constitution permits implied consent seizures. Nor is the side yard in Peterson an area where a resident "impliedly consents" to police window peeping.
If the "knock and talk" procedure is expanded by this court to authorize police searches on the curtilage Peterson), or seizures of the resident, a foundational injury will have been done to the recently reiterated "right of a man to retreat into his own home and there to be free from unreasonable
government intrusion," a principal standing "at the very core of the Fourth Amendment." Groh v.
Ramirez (2004) 540 U.S. 27, 31. See also Welsh v. Wisconsin (1984) 466 U.S. 740. Pronosition of Law No. IV: Rural residents of this state may use their automobiles to retrieve their mail from their roadside mailboxes without violating RC §4511.66, so long as they live within a "residence district" as defined in RC §4511.01(00).
At trial, the burden or proof for probable cause is on the state. Xenia v. Wallace (1988) 37
Ohio St. 3d 216. Probable cause to seize Mr. Kolb in this case was predicated solely upon the officer allegedly observing Mr. Kolb violating RC §4511.66.'
Revised Code §4511.66 prohibits the stopping of a vehicle, attended or unattended, upon the paved or main traveled part of the highway outside a business or residence district. The statute also contains an exception for circumstances where it is not "practicable" to so stop, and in those circumstances requires a clear view for 200 feet in each direction down the highway. The unrefuted photographic evidence of record demonstrates that such a clear and unobstructed view far in excess of 200' was present at the site of Mr. Kolb's mailbox. Further, the site of Mr. Kolb's mailbox was within a "residence district." This term is defined in RC §4511.01(00) as:
"`Residence district' means the territory, not comprising a business district, fronting on a street or highway, including the street or highway, where, for a distance of three hundred feet or more, the frontage is improved with residences or residences and buildings in use for business." (Emphasis added.)
The phrase "residences or residences and buildings in use for business" perfectly describes rural farming residences. These statutes must be strictly construed in Appellant's favor. RC
§2901.04(A). The record establishes that Kolb's home was within a "residence district"; Kolb's home sat in a rural area where residences were fronting the highway "for a distance of 300' or more":
"Q. So you're aware that homes are lined up and down State Route 66 in that area. A. Yes Q. And you're, I gather, aware that the homes are lined up on State Route 66 in this area for more than three hundred feet. A. Sure, sure."
"(A) Upon any highway outside a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is practicable to stop park, or so leave such vehicle off the paved or main traveled part of said highway. In every event a clear and unobstructed portion of the highway opposite such standing veliicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway..." (Emphasis added.)
-13- CONCLUSION For the reasons discussed above, this case involves matters ofpublic and great general interest and several substantial constitutional questions. The Appellant requests that this court accept jurisdiction in this case and consolidate the matter with State v. Peterson (#20072232) now pending, so that the important issues presented will be more comprehensively reviewed on the merits.
Respectfully submitted,
Grefory L. Van unten, COUNSEL FO APPELLANT, DONALD F. KOLB
Certificate of Service
I certify that a copy of this Memorandum in Support of Jurisdiction was hand delivered this
22"a day of July, 2008 to counsel for appellees, State of Ohio, Gary L. Smith, Fulton County
Prosecutor, 123 Courthouse Plaza, Wauseon, Ohio, 43567,
iegory L. V/anGunten COUNSEL OR APPELLANT, DONALD F. KOLB APPENDIX t6/27/2008 12:08 4192134844 6TH DISTRICT APPEALS PAGE 02/10
JOURNALIZED eP VOL /® PG 2 (o X FILED FULTON COUWTY COUF' OF APPEALS i
JUI\ 3 o ZOOB
CLERI'
IN THP COURT OF APPEALS OF OHIO SIXTH AF'PFLLATE DISTRICT FULTON COUNTY
State of Ohio Court of Appeals No. F-07-016
Appellee Trial Court No, 07TRC00696W
V.
Donald F. Kolb, Jr. DECISION AND JUDGMENT ENTRY
Appellant Decided: JUN g 0 200$ *«^*^
Roger D. Nagel, Fulton County Prosecuting Attorney, and Gary L. Smith, Assistant; Prosecuting Attorney, for appellee.
Gregory VanGunten, for appellant.
PIETRYKOWSKI, P.J.
{¶ 11 This is an appeal frorr., a judgment of conviction entered by the County
Court of Fulton County, Western District, after defendant-appellant, Donald F. Koib, Jr.,
entered a plea of no contest to a charge of driving while intoxicated following the court's
denial of his motiota to suppress.
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{¶ 2) The following facts €re derived from the trial couzt's findings of fact set
forth in its ruling denying appellant's motion to suppress and from tbe transcript from the
hearing on the motion to suppress. On March 15, 2007, at approximately 9:40 p.m.,
appellant was operating his motor vehicle in the northbound lane of State Route 66 in
Fulton County, Ohio, when Tr.ooper John D. Chaney of the Ohio State Highway Patrol
witnessed hhn cross the center line of the road and park his vehicle in fzon.t of his
mailbox, which was across the stroa from his driveway, in an apparent effort to retrieve
his mail. In doing this, appellant's vehicle was partially off of the roadway facing
oncoming traffic. Appellant activated liis four-way hazard lights, however, while
retrieving his mail, a vehicle approached firom the southbound direction and had to slow
to avoid appellant's vehicle. Appellant then backed-up his vehicle a short distance and
proceeded to mAe a right turn into his driveway. While appellant's vehicle was still in
the roadway, however, Trooper Chaney activated his overhead lights. Chaney believed
that appellant had violated R.C. 45::1.66, parking in a roadway, and had intended to give
appellant a warning. Appellant failed to respond to the flashing lights, pulled into his
driveway and continued down the e.rive for approximately 200 feet, stopping his vehicle
outside of his residence and within ten feet of his garage. Trooper Chaney followed
appellant down his driveway and radioed the dispatcher that 11c was entering a private
drive.
{¶ 31 After appellant exited his vehicle, Trooper Chaney requested that he come
to the officer in an apparent attempt: to discuss his offense. In speaking with, appellant,
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Trooper Chaney smelled an odor of alcohol upon appellant's breath. Upon further
questioning, Trooper Chaney determined that appellant had been consuming alcohol and
asked him to conduct certain field ;oobriety tests. As a result of appel.lant's performance
on those tests, Trooper Chaney found that there was probable cause to believe that
appellant was driving while under tbe influence of alcohol in violati.on of R.C.
451I.19(A)(1) and arrested him forthat offense.
(14) Subsequently, appellant filed a motion to suppress all of the evidence
against him. Appellant asserted tha his seizure was unlawful as it was conducted upon
the curtilage of.his residential property witbout a warrant. He further asserted that
because his oonduct had not violated R.C. 4511.66, Trooper Chaney was mistaken as to
the law and did not have probable cause to believe that appellant had committed that
offense. The court held a hearing on the motion to suppress at which Trooper Chaney
and appellant testified. In addition, the videotape recording from Trooper Chaney's
cruiser documenting his apprehensipn of appellant was played in court and adsnitted into
evidence. That recording establishes that Trooper Chaney activated his overhead lights
in an attempt to stop appellant before appellant pulled into his driveway.
{¶ 5} On June 6, 2007, the lower court filed its decision denying appellant's
motion to suppress. The decision ir cluded the findings of fact set forth above as well as
others that will be noted later in thi, decision. In relevant part, the court concluded that
Trooper Cbaney observed appellant violating a traffic law and therefore had the right to
stop him in a public roadway, The irooper activated his lights while appellant was on a
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JOURN,4LIZED VOl /'^L PG. 322!^
public roadway and, so, had the authority to follow appellant into his driveway to issue a
citation or wanning regarding the improper conduct. The court further found that, based
on the facts of this case, the troope.^ did not stop appellant within the curtilage of bis
home but, rather, stopped him in a pnblic place. Because the stop was proper, the court
held that the trooper had probable cause to arrest appellant for driving under the
influence. After the court denied his motion to suppress, appellant changed his plea to no
contest, the court found him guilty of driving under the influence in violation of R.C.
4511.19(A)(1), and sentenced him accordingl.y.
{¶ 61 Appellant now challenges his conviction and the deni.al of his motion to
suppress through the following assignments of error:
{¶ 71 "Assignment of Erroi Number One
(181 "The trial court erred in determining that the state's warrantless sei7ure of
appellant, upon his private driveway, 200 .feet off of a public road an.d within 10 feet of
his residence, was not upon the cur.:ilage of said residence, whereby appellant was denied
his rights under the Fourth Amendr3ent of the U.S. Constitution and Article I, Section 14,
of the Ohio Constitution.
{¶ 9} "Assignment of Error Number Two
{¶ 101 "The trial court erred in failing to suppress evidence obtained by a law
enforcem.ezlt officer without a warrEult who committed a common law trespass
unauthorized by R.C. §2935,03 by ;ntering upon appellant's posted property at night
4. 06/27/2008 12:08 4192134B44 6TH DISTRICT APPEALS PAGE 06/10
JOURNALIZED VOLXVPG -3(*6
without exigent circumstances or consent and seizing appellant for purposes of issuing a
minor traffic warning, all in violation of Article 1, Section 14 of the Ohio Constitution.
{¶ 11} "Assignment of Errox•Number Three
{¶ 12} "The trial court erred in failing to suppress evidence derived frotn
appellant's warrantless illegal seizure, said seizure being predicated on a mistake of law,
unauthorized by R.C. §2935.03, and unsupported by'probable cause,' all in violation of
the Ohio and U.S. Constituti.ons."
{¶ 13} Because appellant's a>signments of error collectively challenge the trial
court's denial of his motion to suppress, they will be discussed together.
{¶ 14} We begin our review of the motion to suppress ruling by setting forth the
applicable standard of review. Rev:iew of a ruling on a motion to suppress involves a
mixed question of law and fact. State v. Davis (1999), 133 Ohio App.3d 114, 117. The
trial court acts as the trier of fact; therefore, that court alone weighs the evidence and
determines the credibility of the witnesses. The reviewing court must accept the trial
court's findings of fact if they are supported by competent, credible evidence. State v.
Brooks (1996), 75 Ohio St.3d 148, 1.54. Having accepted the facts as true, the appellate
court must independently determine as a matter of law, without deference to the trial
court's conclusion, whether the fact:; met the appropriate legal standard. State v.
Anderson (1995), 100 Ohio App.3d 688, 691.
{'Q 15}'i'he Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures, even when operating a motor
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JOURNALIZED VDLIZ?_PG 3G7
vehicle, Section 14, Article I ofthi: Ohio Constitution affords the same protection as the
Fourth Amendment. State v. Robir!ette (1997), 80 Ohio St.3d 234, 239. A traffic stop
based on probable cause that a traf]:ic code violation has occurred passes constitutional
muster. Dayton v. Erickson (1996), 76 Ohio St.3d 3, syllabus. Probable cause is
provided when an officer observes a traffic code violation. Whren v. United States
(1996), 517 U.S. 806, 810.
{Q 16} In the present case, Trooper Chancy observed appellant violate R.C.
4511.66(A), which reads in relevant part:
{¶ 17) "Upon any highway outside a business or residence district, no person shall
stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved
or main traveled part of the highwa;q if it is practicable to stop, park, or so leave such
vehicle off the paved or main traveled part of said highway. In every event a clear and
unobstructed portion of the highway opposite sucb standing vehicle shall be left for the
free passage of other vehicles, and a clear view of such stopped vehicle shall be available
from a distance of two hundr.ed foet in each direction upon such highway."
{¶ 13} Appellant argued belciw, and argues herein, that this statute does not apply
to him because he lives in a resfden.-we district as that term is defined in R.C.
4511.01(00), That statute reads: "'Residence distriat' means the territory, not comprising
a business district, fronting on a street or highway, including the street or highway,
where, for a distance of three hundr-,d feet or more, the frontage is improved with
residences or residences and buildir..gs in use for business." The lower court determined
6. 06:/27/2008 12:08 4192134B44 6TH DISTRICT APPEALS PAGE 08/10 JOURNALIZED VOL 40 PG ^&9'
however, as do we, that appellant c:oes not live in a residence district. The evidence at
the hearing below established that appell.ant's home sits in a wooded area approximately
200 feet off of State Route 66, that he owns approximately three acres, and that he owns
approximately 600 feet of frontage along State Route 66. In addition, appellant's
property is located next to a farm. We therefore do not find that appellant's property sits
within a residence district and, accordingly, he was in violation of R.C. 4511.66 when he
parked along the southbound lane in order to retrieve his mail. As such, Trooper Chaney
had probable cause to initiate a traffic stop of appellant.
{¶ 19} Appellant asserts, however, that because his seizure occurred on the
curtilage of his b.ome it was unreasonable. "Curtilage" has been defined as an area outside
the home but "so intimately tied. to the home itself that it should be placed under the
home's 'umbrella' of Fourth Amendment protection." United States v. Dunn (1987), 480
U.S. 294, 301. That is, "[t]he Fourth Amendment's protection against warrantless home
entries extends to the'curtilage' of tu1 individual's home," State v. Williamson, 12th Dist.
No. CA2003-02-047, 2004-C)hio-2.1.09, ¶ 16, citing Dunn, supra.
(1201 The lower court determined that Trooper Chaney's arrest of appallant was
not upon the curtilage of his home. In light of the test for curtilage set forth in Dunn,
supra at 301, we agree. The court in Dunn, supra at 301, determined that curtilage
questions should be resolved with particular reference to four factors: "the proximity of
the area claimed to be curtilage to tha horne, whether the area is included within an
enclosure surrounding the hocne, the nature of the uses to which the area is put, and the
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JDURNALIZED
VOL_L PG 36,15'
steps taken by the resident to protet the area from observation by people passing by."
The lower court looked to these factors and found that the arrest occurred in close
proximity of appellant's home, the area was not enclosed by a fence or any form of
enclosure, appcilant did not engage; in activities in front of his home in which he engaged
in areas of the home that were not nbservable from the roadway, and that although
appellant posted a "No Trespassing" sign the sign did not protect the area from
observation from the roadway. The court found it significant that the area where
appellant was arrested was observable from the roadway. The court's factual findings
regarding curtilage are supported by competent, credible evidence.
{¶ 21} Accordingly, appellalit's arrest was based on probable cause and was
executed in a public place, As sucty his Fourth Amendment rights were not violated and
the lower court did not err in denyiilg his motion to suppress. See State v. Eberhart, 1 st
Dist. No. C-01.0346, 2002-Ohio-11.40. The three assignments of error are not well-taken.
(¶ 22} On consideration whereof, the court finds that appellant was not prejudiced
or prevented from having a fair tria: and the judgment of the County Court of Fulton
Coun.ty, Western District is affirmed, Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24. Judgment for the clexk's expense incurred in preparation of the
record, fees allowed by law, and the, fee for filing the appeal is awarded to Fulton County.
JUDGMENT AFFIRMED.
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JOURNALIZED VOL /1"' PG 36^ State v. Kolb F-07-01.6
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Mark L. Pietrykowski. P.J.
William. J, Skow, J. CONCUR.
This decision is subject to fcuther editing by the Supreme Court of Ohio's Reportcr of Decisions. i?arties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconot.state.oh.us/rod/ne-,ATdf/?sourcQ=6.
9.