People v. Fillhart

• Decision Date: 17 February 1978
• Citation: 93 Misc.2d 911,403 N.Y.S.2d 642
• Parties: The PEOPLE of the State of New York v. Robert Paul FILLHART, Defendant. The PEOPLE of the State of New York v. Robin A. FILLHART, Defendant.
• Court: New York County Court

Page 642

403 N.Y.S.2d 642

93 Misc.2d 911

The PEOPLE of the State of New York v. Robert Paul FILLHART, Defendant.

The PEOPLE of the State of New York v. Robin A. FILLHART, Defendant.

Jefferson County Court.

Feb. 17, 1978.

Lee Clary, Jefferson County Dist. Atty., for People.

James K. Weeks, for defendants.

DECISION FINDINGS OF FACT & CONCLUSIONS OF LAW

JOHN V. AYLWARD, Judge:

This proceeding is a suppression hearing held on November 10, 1977 to suppress the marihuana seized without a warrant by a Deputy Sheriff from defendants' private property, namely, their garden, as well as to suppress oral admissions made by the defendant Robert Fillhart.

FINDINGS OF FACT

The court makes the following findings of fact:

That on August 18, 1977 as a result of information received from an uncle of defendant Robert Fillhart, that defendant Robert Fillhart was growing marihuana on his property, rural land in the Town of Lorraine, Detective Cecil Hinckley of the Jefferson County Sheriff's Department, stopped his car on the public highway and stood on a stone fence in poor condition, about two to three feet high and adjacent to the road in the public right-of-way (Exhibit # 4). He saw a garden with corn growing and another plant which was not identifiable. From that same position the house was not visible since it was in an enclosed wooded area not immediately adjacent to the garden. The garden with the corn and marihuana was in an open field. The exhibit # 5 demonstrates plainly that the defendants' garden is not within the That Robert Fillhart came out of his house onto the public highway and immediately questioned the Detective saying, "Hey, what are you doing what do you want you're going to take my pot aren't you?" That as a result of the admission, the Detective drove into the Fillhart driveway in spite of the protestation of defendant that he did not have a search warrant. From a point inside the driveway the Detective readily observed and identified cannabis plants growing in the garden adjacent to the corn. The Detective seized the plants by uprooting them and removing them to the Sheriff's office. The aggregate weight of the entire plants inclusive of the stalks was approximately forty-one pounds.

definition of curtilage. The garden was not enclosed and was about 125 yards from the road and visible therefrom. The Fillhart residence was not visible to ordinary traffic on the highway. The distance from the house to the garden was 50 to 75 yards.

That defendant's admission was spontaneously made and not while in police custody.

That the possession of marihuana seized was intended for the personal use of the defendants.

OPINION

There are three issues for this court to decide, namely, does the protection of the Fourth Amendment extend to the growing of marihuana on one's private property in an open field, and secondly, is it unconstitutional for the New York State Legislature to prohibit the growing, possession and use of marihuana in any amount, so long as it is used for the grower's personal use, and thirdly, should the oral admission of the defendant be suppressed.

It appears that the Fourth Amendment, while it protects individuals with respect to unlawful searches of their "persons, houses, papers and effects" when they are held in a private manner, it does not extend such protection to the individual when he grows a prohibited product in an open field. Even if the prohibited product was within his house he must recognize that it still may be seized, so long as the police officer had probable cause to request a search warrant from a magistrate. To grow such a prohibited product in an "open field" constitutes a waiver of any privacy which anyone might expect to be constitutionally guaranteed by the Fourth Amendment, and to do so, is to invite confiscation without a warrant. See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; People v. LaRosa, 25 A.D.2d 587, 267 N.Y.S.2d 235.

With respect to the constitutionality of the Marihuana Reform Act of 1977, the New York State Legislature has classified marihuana as a controlled substance and has made it a misdemeanor to possess it in an amount in excess of 25 grams, which is...