Skipper v. State, 4 Div. 781

• Decision Date: 27 May 1980
• Docket Number: 4 Div. 781
• Citation: 387 So.2d 261
• Parties: Herbert SKIPPER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 261

387 So.2d 261

Herbert SKIPPER v. STATE.

4 Div. 781.

Court of Criminal Appeals of Alabama.

May 27, 1980.

Rehearing Denied June 30, 1980.

Randy C. Brackin of Martin & Brackin, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of the possession of marijuana for his personal use only and fixed his punishment at a fine of $750.00. The trial court imposed additional punishment of imprisonment in the Houston County Jail for six months.

The only issue raised by appellant is one that was first raised by defendant in pre-trial motion to suppress evidence, which the trial court overruled. The evidence sought to be suppressed consisted of testimony of officers pertaining to their discovery on the land of defendant of some marijuana in the form of green plants growing thereon, their procurement of some of such plants and having them chemically examined and their production of some of such plants at the trial of the case. Appellant says that as the officers had no search warrant, as to which there is no dispute, there was a violation of defendant's right to security against unreasonable searches and seizures guaranteed by the Fourth Amendment to the Constitution of the United States and Art. I, Sec. 5 of the Constitution of Alabama of 1901, which inhibited the admission in evidence of their testimony. It is to be noted that in the Federal Constitution the right of security of the people against unreasonable searches and seizures is "in their persons, houses, papers and effects," while in the Alabama Constitution it is "in their persons, houses, papers, and possessions."

It has been definitely settled in Alabama that the use of the word, "possessions," in the Alabama Constitution as distinguished from the word, "effects," does not manifest any intent to enlarge the protection against unreasonable search and seizure provided by the United States Constitution. This was decided in Brown v. State, 48 Ala.App. 84, 261 So.2d 914 (1971), aff'd, 288 Ala. 732, 261 So.2d 919 (1972). In so holding the Court of Criminal Appeals also held and stated therein at 261 So.2d 916, 917:

"It does not appear that the Appellate Courts of Alabama have ever extended the protection afforded by the constitutional provision, supra, to open fields or pasture land beyond the curtilage of the home or business establishment. The appellant argues that the word 'possession' in the said constitutional provision should be held to include more than houses, homes, and the curtilage thereof and be broad enough to include land where there is occupancy and full dominion exercised over it. The Supreme Courts of Tennessee and Mississippi have adopted this view, holding in cases involving the operation of stills in open lands, beyond the curtilage of the defendant's home, that evidence secured without a search warrant, was illegal and inadmissible. Barnard v. State, 155 Miss. 390, 124 So. 479; Welch v. State, 154 Tenn. 60, 289 S.W. 510.

"However, in the cases of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Atwell v. United States, 5 Cir., 414 F.2d 136; Stark v. United States, 8 Cir., 44 F.2d 946; Koth v. United States, 9 Cir., 16 F.2d 59, the federal courts have held that the protection of the 4th Amendment to the Constitution of the United States does not extend to open fields.

"Our research indicates that the present weight of authority, state and federal courts, supports the above cited cases. . . .

". . .

"This court sees no good reason to depart from a time-honored understanding of the Bar and Courts that Article I, § 5, Constitution of 1901 does not extend to open land outside of the curtilage, nor do we think that the framers of the Constitution of 1901 intended it to be so inclusive. We prefer to follow the rule laid down, supra, in the Federal Courts, and hold that the search of the pasture land was not illegal and the court was not in error in overruling the motion to exclude this evidence."

In finding defendant guilty of possession of marijuana for his personal use only, the jury found defendant guilty of a misdemeanor only, which is a lesser included offense of the felony with which he was charged in the indictment that contained no reference to "personal use only." Code of Alabama 1975, § 20-2-70; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760 (1975).

The undisputed evidence shows that marijuana plants were found upon defendant's land and that the land, at the time, where all of the marijuana was found, was under the actual dominion of defendant. There is irreconcilable conflict between the testimony of witnesses for the State and that of defendant and his wife as to his knowledge of the presence of the marijuana growing on his land.

On the hearing of the motion to suppress, the only evidence presented was that of the movant, consisting of the testimony of two law enforcement officers, Leroy Wood and Gerald Mondy. The same two officers testified on behalf of the State on the trial before the jury. Their testimony on the hearing of the motion to suppress consists of approximately sixty-four pages of the transcript. During such hearing, defendant utilized a previously prepared plat, purportedly drawn to scale, of the area in which the marijuana was found and some of the environs thereof.

In appellant's STATEMENT OF THE ISSUES, he expressly divides it into two parts:

"A. Should the Plain View Doctrine apply where the initial intrusion is unlawful?

"B. Should the Open Field Doctrine apply to property within the curtilage of the dwelling?"

It seems that appellant argues that should either question A or question B be answered in the negative he supports his position that there was an unreasonable search and seizure. We do not agree, as our discussion hereinafter shows, but we will proceed to consider and discuss under an appropriate heading each of said questions.

"A"

Appellant correctly takes the position that the "Plain View Doctrine" does not apply where there is no justification for the intrusion. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Herrin v. State, Ala.Cr.App., 349 So.2d 103, cert. denied, 349 So.2d 110 (1977); Simpson v. State, 51 Ala.App. 279, 284 So.2d 734 (1973). Although there was considerable discussion and evidence pertaining to the question of the plainness of view of the growing marijuana, an answer to the question whether there was a violation of defendant's right to security against an unreasonable search and seizure does not turn, in whole or in part, upon the plain view doctrine. This is true even though it appears that the officers in their testimony indicated that they were relying upon the plain view doctrine.

Application of the plain view doctrine as one of the six exceptions ¹ to the rule requiring a search warrant prior to a search and seizure presupposes a search either of the person or a search or seizure of property within the meaning of the terms "houses, papers and effects," as employed in the United States Constitution, or "houses, papers, and possessions," as used in the Alabama Constitution. In none of the cases just cited was there an open field. There was no occasion for the consideration of the open fields doctrine. The open fields doctrine does not give rise to an exception to the requirement that a search warrant be obtained before a search is made of the kinds of property covered by pertinent Constitutional provision. The open fields doctrine constitutes an established principle in Alabama and in most jurisdictions, including the jurisdiction of United States Courts, to the effect that open fields do not come within the coverage of the quoted Constitutional provisions as to unreasonable searches and seizures.

The plain view doctrine and the open fields doctrine have separate and distinct fields of operation, and the requirements for the application of the one are not the same as the requirements for the application of the other. Resolution of the question whether there was an unreasonable search or seizure in this case hinges upon whether the land upon which the marijuana was found was such as to make applicable the open fields doctrine. We now turn to that particular issue.

"B"

Appellant is correct in his argument that the open fields doctrine does not apply "to property within the curtilage of the dwelling," and thereby gives a negative answer to the issue formulated by him and lettered "B." The correctness of this position is clearly shown in Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183, 194, cert. denied, 291 Ala. 802, 278 So.2d 198 (1973), as follows:

"The protection of the Fourth Amendment securing people in their persons, houses, papers, and effects against unreasonable search and seizure does not apply to 'open fields." Edwards v. United States, (10 Cir.) 206 F.2d 855; Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; United States v. One 1967 Dodge Pickup Truck, (D.C.) 310 F.Supp. 773.

"The Fourth Amendment does, however, apply to buildings within the curtilage which may include 'a garage, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; a barn, Walker v. United States, (5 Cir.) 225 F.2d 447; a smokehouse, Roberson v. United States, (6 Cir.) 165 F.2d 752; a chicken house, Walker v. United States, (5 Cir.) 125 F.2d 395, and similar property. Whether the place to be 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.' Care v. United States, (10 Cir.) 231 F.2d 22 (emphasis added)."

We do not find any disagreement between the parties as to the principle of law stated. The disagreement is as to whether the marijuana was...