People v. Pakula
| Decision Date | 29 October 1980 |
| Docket Number | No. 79-260,79-260 |
| Citation | 411 N.E.2d 1385,44 Ill.Dec. 919,89 Ill.App.3d 789 |
| Parties | , 44 Ill.Dec. 919 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Steven and Annette PAKULA, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Edward Petka, State's Atty., Joliet, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, for plaintiff-appellant.
Morris W. Ellis, Chicago, for defendants-appellees.
The defendants, Annette Pakula and her husband, Steven Pakula, were indicted by a Will County grand jury for the offense of possession of more than 500 grams of a substance containing cannabis. The cannabis was seized by the police from the defendants' back yard where it was growing. Prior to trial, the defendants moved to suppress the cannabis. The trial court granted defendants' motion to suppress ruling that even though the cannabis was plainly observable from outside the premises of the defendants' home and yard, and the police could discern that it was cannabis from a location where they had a right to be, the seizure was illegal. The trial judge found that there was no consent given by the defendants for the seizure of the evidence, and in the opinion of the trial court, no exigent circumstances were present and no reason existed for the police not to get a search warrant. The state has appealed from the order suppressing the evidence seized pursuant to Supreme Court Rule 604(a). (Ill.Rev.Stat.1977, ch. 110A, par. 604(a)).
The issue presented for our review is: whether the seizure of the cannabis growing in defendant's back yard was unreasonable, consistent with the Fourth Amendment to the Constitution of the United States and its prohibition against unreasonable intrusion into a person's privacy.
The facts surrounding the seizure of the evidence were presented at the hearing on the motion to suppress by the police officers who were involved and the defendant Annette Pakula.
Officer Stahl testified that on the night before the arrest of the defendants and the seizure of the cannabis, another police officer, agent Drew Peterson, received a call from the Bolingbrook police dispatcher regarding a report of cannabis growing in the back yard of 124 Avondale Court, Bolingbrook, Illinois. At approximately 11:30 A.M. of the following morning officer Stahl and agents Peterson and Sullivan drove to 124 Avondale Court in Bolingbrook to verify the address and location. They then proceeded one block north to a street that runs north and parallel with Avondale Court to observe the defendants' back yard and to see if cannabis was growing there. Officer Stahl reported that they could see what appeared to be cannabis growing in defendants' back yard from their vantage point standing on the sidewalk in front of the house one block north of Avondale Court. The defendants' entire back yard was surrounded by a steel chain link fence through which the officers could see. After observing the cannabis growing from a block away they decided to get a closer look and they then entered upon the private property of an adjoining landowner. From this closer observation point the police observed three large cannabis plants growing with the tomato plants in the garden. The cannabis plants were staked and tied and obviously cultivated. After making these observations all three then proceeded to the Bolingbrook Police Department to get uniformed policemen to aid them in approaching the house and to seize the cannabis. No one remained behind to prevent possible destruction of the cannabis. At least thirty minutes elapsed before the police returned to the Pakula residence with two uniformed police officers. Agent Peterson then went to the front door of 124 Avondale Court with the uniformed officers. After knocking on the door he allegedly informed Annette Pakula about the cannabis growing in her back yard. Mrs. Pakula was not then arrested. The officers entered the Pakula fenced back yard and seized the cannabis growing in the garden as well as searching and seizing some smaller cannabis seedling plants found growing in a container on a patio. Only after the seizure was Mrs. Pakula arrested and several days after that her husband Steven Pakula was arrested. Officer Stahl testified that he was not able to hear the entire conversation between Agent Peterson and Mrs. Pakula at the door. He admitted that no search warrant had been obtained, and that they had returned to the residence intending to seize the cannabis.
Agent Peterson fully corroborated the version related by Officer Stahl's testimony. He stated that the tip that cannabis was being grown at the defendants' address had originated with the Bolingbrook police dispatcher on the evening before the seizure of the cannabis. He admitted that he lived in Bolingbrook within two or three miles of the Pakula residence but that he had not gone by or checked the tip out either on his way home from work in Joliet or on his way back to work the next day. Approximately twelve to fifteen hours elapsed from the time Agent Peterson received the information about cannabis growing at 124 Avondale Court in Bolingbrook. Agent Peterson further admitted that Annette Pakula was not placed under arrest until after the seizure of the cannabis. He testified that after knocking on the door Annette Pakula appeared. He advised her that he was a police officer, that he had observed cannabis growing in her back yard, and that the police were going back into her yard to seize it. Agent Peterson also conceded that they did not obtain a search warrant for the Pakula back yard.
Annette Pakula testified in her own behalf. She admitted that she was present when the seizure was made, but stated that she had not given the officers consent to enter her back yard or to seize anything. The State's first argument is that the seizure was valid under the open fields doctrine. (Hester v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898). Under the theory of the open fields doctrine incriminating evidence in plain view in an open field is not the subject of constitutionally protected privacy. As Justice Holmes stated in Hester, "the special protection accorded by the Fourth Amendment to the People, in their 'persons, houses, favors, and effects' is not extended to the open field." (Hester v. United States (1924), 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898). Illinois has recognized the validity of the open fields doctrine in plain view search and seizure cases. (Decatur v. Kushmer (1969), 43 Ill.2d 334, 253 N.E.2d 425). The State also relies upon subsequent cases decided under the open field theory to support the seizure of the cannabis in defendants' fenced back yard. (Janney v. United States (4th Cir. 1953), 206 F.2d 601; Martin v. United States (5th Cir. 1946), 155 F.2d 503). We have examined these cases and find them to be factually distinguishable. In the Hester case the Supreme Court upheld the seizure of contraband liquor in an open field surrounding a house, but the evidence in that case showed that the defendants very clearly discarded the liquor bottles and their contents in flight thus abandoning any protected privacy in them. The Kushmer case merely dealt with a plain view observation of an ordinance violation by city inspectors who did not enter upon the defendant's premises or seize anything, nor was either a warrantless search or any exigent circumstances in issue in that case.
In the Janney case the seizure of the illegal whiskey was made as an incident to a lawful arrest without a warrant, but the court properly concluded that "the legality of the arrest (in that case) is beyond question since the facts within the knowledge of the arresting officer and the actions of the defendant within his view abundantly justified the belief that a crime of the grade of a felony was being committed in his presence". (Janney v. United States (4th Cir. 1953), 206 F.2d 601, 604). Similarly in the Martin case the jug containing the illegal whiskey was also abandoned by the defendant in the plain view of the watching police when he eased the jug from the car and rolled it underneath the car as the lights of an unexpected oncoming car appeared.
In response to the State's argument that the cannabis was in plain view in an open field the defendants claim that the fenced back yard was within the curtilage of his residence. The protection of privacy afforded by the Fourth Amendment includes not only the interior of a person's house but has extended to open areas immediately adjacent thereto. The dividing line between immediate adjacent curtilage and an unprotected open field is very indistinct. The following statement has been set forth in prior cases to determine if the search and seizure took place within the area of protected curtilage:
"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."
(Wattenburg v. United States (9th Cir. 1968), 338 F.2d 853, 857). In our view, the determination of the issue presented to us, the legality of the seizure, should not turn exclusively upon the ancient property law concept of curtilage. (Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576).
The Pakula back yard was completely enclosed by a fence and was not accessible to the general public. The officers gained entry to seize the cannabis by opening and going through the closed gate after Annette Pakula...
To continue reading
Request your trial
-
Hoffman v. People
... ... See State v. Rickard, 420 So.2d 303 (Fla.1982); State v ... Page 476 ... Rowe, 422 So.2d 75 (Fla.Dist.Ct.App.1982); State v. Hook, 60 Haw. 197, 587 P.2d 1224 (1978); People v. Pakula, 89 Ill.App.3d 789, 44 Ill.Dec. 919, 411 N.E.2d 1385 (1980); State v. Silva, 509 A.2d 659 (Me.1986); State v. Prier, 725 S.W.2d 667 (Tenn.1987). But see People v. Schmidt, 168 Ill.App.3d 873, 119 Ill.Dec. 458, 522 N.E.2d 1317 (1988); State v. Loomis, 436 So.2d 1103 (Fla.Dist.Ct.App.1983); ... ...
-
Com. v. Govens
...303 (Fla.1982); State v. Hook, 60 Hawaii 197, 1227-29, 587 P.2d 1224, 1228-1229 (1978); People v. Pakula, 89 Ill.App.3d 789, 793-96, 44 Ill.Dec. 919, 923-24, 411 N.E.2d 1385, 1389-1390 (1990); Sayre v. State, 471 N.E.2d 708, 713 (Ind.App.1984), cert. denied, 475 U.S. 1027, 106 S.Ct. 1226, 8......
-
People v. Pitman
... ... We agree with the appellate court's application of the Dunn factors to the facts of this case ... The facts presented here pertaining to curtilage are clearly distinguishable from those presented in People v. Pakula, 89 813 N.E.2d 104 Ill.App.3d 789, 44 Ill.Dec. 919, 411 N.E.2d 1385 (1980), a pre- Dunn decision. There, police officers observed from an adjoining lot marijuana plants growing among tomato plants in a fenced, suburban backyard. Applying Katz, the Pakula court held that the defendant ... ...
-
People v. De La Fuente
...and there must exist exigent circumstances which would make it impractical to obtain a warrant. (People v. Pakula (3d Dist. 1980), 89 Ill.App.3d 789, 44 Ill.Dec. 919, 411 N.E.2d 1385, 1389-1390.) That an item is in plain view, is not sufficient by itself to justify the warrantless seizure o......