Ex parte Hergott

• Decision Date: 14 June 1991
• Citation: 588 So.2d 911
• Parties: Ex parte Richard James HERGOTT. (Re Richard James Hergott v. State). 1900486.
• Court: Alabama Supreme Court

Page 911

588 So.2d 911

Ex parte Richard James HERGOTT (Re Richard James Hergott v. State).

1900486.

Supreme Court of Alabama.

June 14, 1991.

Rehearing Denied Aug. 9, 1991.

Sherry Collum-Butler of Potts & Young, Florence, for petitioner.

James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.

INGRAM, Justice.

The facts of this case are stated in greater detail in Hergott v. State, 554 So.2d 1139 (Ala.Crim.App.1988). The facts essential to our disposition on this certiorari review are stated below.

Richard James Hergott, the petitioner, was arrested for trafficking in cannabis. The State's primary evidence against him was 40 potted marijuana plants seized from his residence in a warrantless search. The marijuana plants were found placed among growing corn in a garden behind a barn in back of his house. The house, in rural Winston County, sat on top of a hill, surrounded by four acres of land enclosed by a fence.

Hergott objected to the use of the potted marijuana plants as evidence against him, arguing that the plants had been seized incident to an illegal search. The trial court held a suppression hearing, at which the State offered the testimony of the officer who had seized the marijuana. In his testimony, which he had also given earlier before the grand jury, he stated that the plants were approximately 75 yards from the house, that they were obscured from view by their placement among growing corn, that there was a locked fence surrounding Hergott's property, and that two dogs, a German shepherd and a rottweiler, roamed the grounds.

Hergott argued that the garden where the plants were found was part of the curtilage of his home. The State claimed that the plants were found in an "open field" and that, therefore, they were not seized from inside the curtilage.

The trial court ruled against Hergott, based upon the "open field" exception. Therefore, Hergott entered a plea of guilty, reserving his right to appeal the trial court's ruling regarding the propriety of the search. After entry of the judgment and sentencing, Hergott appealed to the Court of Criminal Appeals. In an opinion released on July 19, 1988, that court held that it was unable to determine from the record whether the State had "overcome the presumption of unreasonableness that attaches to all warrantless searches and home entries." Hergott v. State, 554 So.2d 1139, 1142 (Ala.Crim.App.1988) (hereinafter Hergott I ). The case was remanded to the trial court with directions to "make a determination whether the garden and barn are within the curtilage of [petitioner's] home," and "to submit written findings of fact on the matter to this court." Id.

On remand, the trial court conducted a personal inspection of the property at issue. In its subsequent order, the trial court found that the barn and garden were over 100 yards from Hergott's home and, therefore, were not within the curtilage. Hergott appealed.

The Court of Criminal Appeals, on return to remand, Hergott v. State, 588 So.2d 908 (Ala.Crim.App.1990) (hereinafter Hergott II ), affirmed the trial court's finding that the location of the marijuana plants was beyond the curtilage of Hergott's home. 588 So.2d at 910. Hergott asks this Court to examine two issues: (1) whether the Court of Criminal Appeals erred in remanding this cause to the trial court after finding that the State had failed to meet its burden as to the reasonableness of the warrantless search; and (2) whether it erred in failing to follow the criteria established by United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), for determining curtilage issues.

In his petition for writ of certiorari, Hergott argues that the remand and the subsequent acceptance of new evidence contradicts Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The State, however, contends that the remand was merely to "clarify" the evidence upon which the trial court had relied in overruling Hergott's motion to suppress.

The Court of Criminal Appeals in Hergott I remanded the case, stating:

"We are unable to determine from a review of the record whether the garden was within the curtilage of the appellant's home....

"While it is the appellant's duty to provide a complete record ..., the burden is on the state to demonstrate circumstances which overcome the presumption of unreasonableness that attaches to all warrantless searches and home entries.... Therefore, this cause is remanded for the trial court to make a determination whether the garden and barn are within the curtilage of the appellant's home. The trial court is directed to submit written findings of fact on the matter to this court."

Hergott I, 554 So.2d at 1142.

The first issue to be decided is whether the remand was for the purpose of clarifying the evidence or whether it was to afford the trial court the opportunity to take new evidence. In the companion cases to Hergott I, Brodhead v. State, 554 So.2d 1142 (Ala.Crim.App.1989), and Kaercher v. State, 554 So.2d 1143 (Ala.Crim.App.), cert. denied, 554 So.2d 1152 (Ala.1989), the Court of Criminal Appeals noted that "we remanded Hergott because the record was inadequate to determine the sole issue of whether the warrantless search of Hergott's property and the subsequent seizure of marijuana thereon were constitutional." Brodhead, 554 So.2d at 1143; Kaercher, 554 So.2d at 1145. However, on remand, the trial court took new evidence concerning the distance of the garden from the Hergott residence, and this evidence was the basis of the Court of Criminal Appeals' affirmance of the trial court's order overruling Hergott's motion to suppress. The Court of Criminal Appeals stated: "In the present case, the trial court notes that the location of the marijuana was more than 100 yards from the appellant's residence, clearly indicating that the area in which it was located was not to be treated as an adjunct of the house." Hergott II, 588 So.2d at 910.

If the purpose of the remand, as the State contends, was merely to clarify the evidence, obviously new evidence should not have been admitted. The State contends that the trial court did not admit new evidence, but merely "clarified" the "highly uncertain and speculative" testimony of the officer. We disagree and find that the evidence, procured by the trial court, showing the distance from the house to the garden to be more than 100 yards, was new evidence.

The State and Hergott agree that the officer testified that the garden was approximately 75 yards from the house. Evidence that the garden was actually over 100 yards from the residence, procured by the trial court on a visit to Hergott's property after Hergott had been convicted and sentenced and after the Court of Criminal Appeals had remanded the case, contradicts the only testimony in the record as to the distance--the officer's testimony that the distance was approximately 75 yards. Because the Court of Criminal Appeals not only did not question the propriety of allowing new evidence but embraced the new evidence as the reason the warrantless search was valid, we hold that that court erred.

The acceptance of new evidence after Hergott had pleaded guilty violates the Double Jeopardy Clause of the fifth amendment. "Jeopardy attaches on a guilty plea when the plea is accepted and entered by a court with jurisdiction." Ex parte Wright, 477 So.2d 492, 493 (Ala.1985) (citing Odoms v. State, 359 So.2d 1162, 1164 (Ala.Crim.App.1978). Once jeopardy has attached, the State is not given a second chance to supply evidence that it failed to provide on the first opportunity. United States v. Burks, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The Double Jeopardy Clause is aimed at prosecutors and judges, United States v. Davis, 656 F.2d 153 (11th Cir.1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982). Therefore, it was a violation of the fifth amendment for the trial court to procure new evidence after Hergott's plea of guilty had been accepted by the court and he had been sentenced.

The State has the burden to prove that a warrantless search was reasonable. Although the testimony of the officer was speculative, it was uncontradicted. The State, at the time the motion to suppress was made, had the opportunity to prove distance by supplying other witnesses, but the State chose to rely upon the officer's prior testimony as to the proximity of the garden to the residence.

The next issue then is whether, under the standard established in Burks v. United States, supra, remand was proper once the Court of Criminal Appeals determined that the record was inadequate to allow the court to determine whether the barn and garden were within the curtilage. Hergott argues that the evidence was insufficient to prove that the State had overcome the presumption of unreasonableness that attaches to warrantless searches and that the case should have been reversed according to Burks. The State argues that Burks does not apply, because, it says, Burks concerned insufficient evidence at trial, whereas Hergott had pleaded guilty, thus, the State argues, waiving insufficiency of the evidence.

In Burks v. United States, Burks was charged with bank robbery. At his trial, he introduced testimony of three expert witnesses who supported his defense of insanity. Burks was convicted, and he appealed. The court of appeals held that the Government has the burden of proving sanity once a prima facie defense of insanity has been raised; however, the court went on to find that the Government did not carry this burden, noting in particular that the prosecution witnesses "failed to 'express definite opinions on the precise questions [that the court] ... identified as critical in cases involving the issue of [in]sanity.' " Burks, 437 U.S. at 4, 98 S.Ct. at 2143, rev'g Burks v. United States, 547 F.2d 968, 970 (6th Cir.1976). The court of appeals remanded the case to the...