By: Rob Harris
Tony Mauro at National Law Journal has authored an extremely entertaining article about Chief Justice Roberts’ recent foray into the world of golf, describing how his opinion in U.S. Army Corps of Engineers v. Hawkes included a description of the use of peat “to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”
(Thanks also, Tony, for the Golf Dispute Resolution shout out.)
Armed with Justice Roberts’ education about the importance of peat and golf, I did my own investigation and discovered that courts on various other occasion have found themselves discussing legal questions involving peat and golf.
One case, Pioneer Peat, Inc. v. Quality Grassing & Services, Inc., addressed claims of breach of warranty with respect to peat utilized in golf course soil. Another case, Fisons Horticulture, Inc. v. Vigoro Industries, Inc., addressed a trademark claim by a company that sold peat under the name “Fairway” was being infringed by a fertilizer company whose product was called “Fairway Green.”
However, my new favorite peat and golf case is an Iowa criminal matter, State v. Flynn. The unfortunate Mr. Flynn was convicted of bookmaking and “keeping a gambling house,” a conviction based on undisputed facts, including ”the contents of cassette tapes found by a private citizen and delivered into the custody of police.”
On appeal, Mr. Flynn argued “the trial court committed error of constitutional magnitude” by permitting the introduction of the tapes into evidence.
The Iowa Supreme Court teed up the case as follows:
“In December of 1982, defendant learned that his home was under police surveillance. As a result, he decided to move certain records of financial transactions located in his home to a different location. The records in question consisted of thirty-three cassette tapes, two notebooks, two sheets of paper with names and numbers, and a ledger book. Defendant considered various locations for the records, and he decided to transfer these records to a locker contained in a locked Quonset building on the premises of the Urbandale Golf and Country Club of which he was a member. The Quonset building in question was the location where defendant stored his motorized golfing cart during the winter season when the club was closed.
“On December 11, 1982, defendant took these records in two paper sacks to the golf club grounds. The club was closed for the season. Defendant observed no one in the area. The area was not visible to the general public, was fenced, and was posted with “no trespassing” signs. When defendant reached the building, his key would not unlock the door. Believing he had brought the wrong key, defendant temporarily placed the two sacks containing the records beneath a tarpaulin which was covering a quantity of peat moss used for golf course maintenance. Defendant then left the golf club premises to obtain the proper key. He did not return for approximately two and one-half hours. When he returned the sacks and their contents had disappeared.”
Unfortunately for Mr. Flynn, during this two-and-one-half-hour interlude, “a private person … found the records in question beneath the tarpaulin where defendant had left them. That person had called a police officer with whom he was acquainted, and on the officer’s advice the private person brought the records to the police station. There the police officer looked at the records, played two cassette tapes, and learned the identity of defendant and the nature of his gambling activity. He then turned the sacks of records and tapes over to vice investigation officers.”
Confronted with tapes that didn’t lie, Mr. Flynn was left to argue that a private citizen’s discovery of the tapes at a golf course, on top of a tarpaulin covered pile of peat moss constituted an unconstitutional search and seizure.
Given his line of work, Mr. Flynn perhaps knew the odds were against him, and the Iowa Supreme Court so determined:
“[W]e conclude that defendant’s choice of the peat moss pile as the temporary location for his records, gave rise to no constitutionally protected privacy right. The open area of the country club was accessible to all of the private members and others given permission to enter. It was not within the curtilage of a protected area.
“We do not doubt that defendant hoped his records would not be discovered under the tarpaulin, and this may have amounted to his subjective expectation that anyone finding them there would respect his personal interest in the secrecy of their contents. Such subjective hopes or expectations, however, are not sufficient to activate constitutional protection.”
While of no practical help for Mr. Flynn, it is perhaps noteworthy for afficionados of the Fourth Amendment (or golf course peat moss cases), that the defendant did corral two dissenting votes from the court. As the dissent argued,
“[d]efendant put the materials in sacks that he intended to store in a locker in a locked quonset hut on the premises of his country club. The hut was located in a valley on the golf course a considerable distance from the surrounding residential area. The club premises were marked with ‘no trespassing’ signs, and only club members or their guests had a right of access. Because the time was mid-December, the course was not actually in use.
“When defendant discovered he could not obtain access to the quonset hut, he looked for another place to secrete his materials on a temporary basis. He saw a large pile of peat moss covered by a tarpaulin near the quonset hut. He looked carefully in all directions and saw no one else on the club premises. The site could not be seen from the residences near the golf course. The peat moss and tarpaulin were frozen. Defendant broke the seal on the tarpaulin, lifted a corner sufficiently to place his sacks underneath it, and placed the frozen tarpaulin over the sacks to conceal them. The sacks were not visible. They were to remain under the tarpaulin only until defendant returned for them less than three hours later.
“In these circumstances it defies reality to suggest that defendant’s expectation of privacy was not objectively reasonable and legitimate…Here the defendant’s presence on the premises of the private golf club was lawful. He obviously had authority to store personal possessions there. The fact that the place he chose for temporary storage of the two sacks turned out not to be secure does not diminish his right to expect that his interest in his property would be respected by anyone reasonably likely to be on the premises. I believe the record sufficiently demonstrates a legitimate expectation of privacy.”