Payton v. State

• Decision Date: 07 November 1985
• Docket Number: 70526,Nos. 70525,s. 70525
• Citation: 338 S.E.2d 462,177 Ga.App. 104
• Parties: PAYTON v. The STATE. OGLETREE v. The STATE.
• Court: Georgia Court of Appeals

Page 462

338 S.E.2d 462

177 Ga.App. 104

PAYTON v. The STATE.

OGLETREE v. The STATE.

Nos. 70525, 70526.

Court of Appeals of Georgia.

Nov. 7, 1985.

Rehearing Denied Dec. 2, 1985.

Certiorari Denied Jan. 17, 1986.

John W. Lawson, Avondale Estates, for appellant (case no. 70525).

Johnny B. Mostiler, Griffin, for appellant (case no. 70526).

Johnnie L. Caldwell, Jr., Dist. Atty., Christopher C. Edwards, J. David Fowler, Paschal A. English, Jr., Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendants appeal their conviction of the offense of trafficking in marijuana. Held:

1. An agent with the Georgia Bureau of Investigation (GBI) received information that marijuana was being grown behind defendant Payton's house. The GBI agent along with other law enforcement officers proceeded to investigate.

On May 21, 1981, a number of law enforcement officers were put out on a road near defendant Payton's house. They crossed an open field, then walked through a wooded area until they found the marijuana patch concealed among the trees behind defendant Payton's house. Along with the marijuana they found hoses, sprinklers and various other gardening implements. The officers found a path which led towards the house and walked up the path until they reached a position about half the distance to the house.

In June law enforcement officers returned to the marijuana patch to check as to whether it was being cultivated. This visit revealed that the marijuana was growing, some of the plants were more than 10 feet, and some new plants had been added to the patch.

Law enforcement officers returned on July 7, 1981, in order to establish a surveillance of the marijuana patch to determine who was working the field. On July 8, 1981, law enforcement officers continued their surveillance of the field and arrested defendant Ogletree when he came onto the field. Defendant Ogletree showed the officers a second smaller patch of marijuana. A search warrant was obtained for the residence and curtilage of defendant Payton. One marijuana patch was located approximately 100 yards from the residence and the second smaller patch some 75 feet beyond the first patch.

The trial court denied the defendant Payton's motion to suppress relying upon the "open field" doctrine and held there was "nothing to taint the search in any way." Defendant Payton enumerates as error the denial of his motion to suppress the marijuana found in the field and in his home, as well as other evidence seized in those locations. Defendant Payton argues that the marijuana field was within the curtilage of his home so that the initial exploratory intrusions by the law enforcement officers were illegal searches because the searches were conducted without a search warrant and in the absence of any probable cause. The State argues that there was no invasion of a legitimate expectation of privacy and relies largely upon the recent decision in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214, reasserting the "open field" doctrine. See also Giddens v. State, 156 Ga.App. 258, 259, 274 S.E.2d 595.

"At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' Boyd v. United States, 116 U.S. 616, 630, 29 L.Ed. 746, 6 S.Ct. 524, 532 (1886), and therefore has been considered part of home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e.g., United States v. van Dyke, 643 F.2d 992, 993-994 (C.A.4 1981); United States v. Williams, 581 F.2d 451, 453 (C.A.5 1978); Care v. United States, 231 F.2d 22, 25 (C.A.10), cert. denied, 351 U.S. 932, 100 L.Ed. 1461, 76 S.Ct. 788 (1956)." Oliver v. United States, supra. " 'Curtilage' includes the yards and grounds of a particular address, its gardens, barns, buildings, etc. Bellamy v. State, 134 Ga.App. 340 [214 S.E.2d 383 (1975) ]. Norman v. State, 134 Ga.App. 767, 768(1), 216 S.E.2d 644. "Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family. [Cit.]" Care v. United States, 231 F.2d 22, 25 (10th Cir.1956). The fact finder's reliance upon the "open field" doctrine and finding there was "nothing to taint the search in any way" was not erroneous. The trial court did not err in denying defendant Payton's motion to suppress.

2. The offense of trafficking in marijuana occurs only where the quantity of marijuana involved exceeds 100 pounds. OCGA § 16-13-31(c) (formerly Code Ann. § 79A-811(e)). At the time of these offenses, July 1981, marijuana was defined to include "all parts of the plant of the genus Cannabis ... but shall not include ... the mature stalks of such plant ..." Former Code Ann. § 79A-802(O) (Ga.L.1979, pp. 859, 863) (this definition has since been amended, see OCGA § 16-13-21(16)).

In the case sub judice, approximately 550 plants were seized. The total weight of all of the plants including stalks was 123 1/2 pounds. Apparently no attempt was made to separate "mature stalks." Indeed, the State's expert witness testified: "Well, we don't know what they mean by mature." The plants ranged in size from small plants in seedling cups to larger than 10 feet tall. The State's expert witness testified that the stalk represented a large portion of the weight of a marijuana plant, and that more than 50% of the weight of a six foot marijuana plant would be stalk.

"Mature" is defined as "[b]rought by natural process to completeness of growth...