Luman v. State

• Citation: 629 P.2d 1275
• Decision Date: 08 June 1981
• Docket Number: Nos. F-78-624,F-78-625,s. F-78-624
• Parties: Kenneth Eugene LUMAN, and James Haskell Luman, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1275

629 P.2d 1275

Kenneth Eugene LUMAN, and James Haskell Luman, Appellants, v. The STATE of Oklahoma, Appellee.

Nos. F-78-624, F-78-625.

Court of Criminal Appeals of Oklahoma.

June 8, 1981.

An Appeal from the District Court of LeFlore County; Pat Pate, Judge.

Appellants, James Haskell Luman and Kenneth Eugene Luman, were convicted of Unlawful Cultivation of Marijuana in LeFlore County District Court Case No. CRF-77-167, for which each was sentenced to ten (10) years' imprisonment and fined Ten Thousand Dollars ($10,000) and Fifteen

Thousand Dollars ($15,000), respectively. Appellants were also convicted of Unlawful Possession of Marijuana With Intent to Distribute in Cases No. CRF-77-168 (Kenneth) and CRF-77-169 (James), for which Kenneth was sentenced to ten (10) years' imprisonment to run consecutively with the other sentence and James was sentenced to five (5) years' imprisonment to run concurrently with the other sentence. Only the fine portion of the sentences of both appellants is modified from Ten Thousand Dollars ($10,000) to Five Thousand Dollars ($5,000) and in all other respects the judgments and sentences of both appellants are AFFIRMED AS MODIFIED.

James W. Fransein, Tulsa, for appellants.

Jan Eric Cartwright, Atty. Gen., Michael Avant-Pybas, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, for appellee.

MEMORANDUM OPINION

CORNISH, Judge:

The appellants, James Haskell Luman and Kenneth Eugene Luman, were convicted of Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana With Intent To Distribute in the District Court of LeFlore County.

Sheriff Kirkland, of LeFlore County, received an anonymous telephone call stating that a substance believed to be marijuana, surrounded by a cornfield, was growing on the Luman place. On September 3, 1977, the sheriff and his deputy drove to the farm. Approximately three hundred feet away from the cornfield, the sheriff observed what he believed to be marijuana protruding above the corn. Before departing, he went through a barbed wire fence and two gates to take a sample plant.

On September 22, 1977, the sheriff secured a warrant to search the Luman property. Execution of the warrant netted several large bags of marijuana and over two thousand marijuana plants ranging from three to twelve feet in height. A later search pursuant to a warrant issued September 25, 1977, netted six barrels, two chest freezers, and several paper bags of marijuana from a structure beside the barn. The processed marijuana was later determined to be about six to seven hundred pounds. In addition, eight to ten large dump trucks full of cultivated marijuana plants were hauled away.

It is first argued that the initial intrusion onto the appellants' land was in violation of the Fourth Amendment's prohibition against an unreasonable search and seizure. The appellants' second proposition also involves a Fourth Amendment question concerning whether the cornfield was within the curtilage, therefore, the two arguments will be considered together.

The curtilage area, historically considered as an extension of a man's house, has Fourth Amendment protection against unreasonable search and seizure. Curtilage includes all outbuildings used in connection with a residence, such as garages, sheds, barns, yards and lots connected with and in close vicinity of the residence, but open pasture and wooded area beyond fenced residential property does not constitute part of curtilage, Hunsucker v. State, 475 P.2d 618 (Okl.Cr.App. 1970). Interpreting Oklahoma law, the Tenth Circuit Court of Appeals...