State v. Doelman

• Decision Date: 04 June 1981
• Docket Number: No. 1,1
• Citation: 620 S.W.2d 96
• Parties: STATE of Tennessee, Appellee, v. David C. DOELMAN and James F. Pensoneault, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 96

620 S.W.2d 96

STATE of Tennessee, Appellee, v. David C. DOELMAN and James F. Pensoneault, Appellant.

No. 1

Court of Criminal Appeals of Tennessee, At Jackson.

June 4, 1981.

Permission to Appeal Denied by Supreme Court Aug. 10, 1981.

William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Nashville, Robert B. Smith, Asst. Dist. Atty. Gen., Savannah, for appellee.

W. Lee Lackey, Savannah, for appellant.

OPINION

WALKER, Presiding Judge.

The appellants, David C. Doelman and James F. Pensoneault, were convicted in the Circuit Court of Hardin County of manufacturing and possession with intent to sell marijuana, TCA 52-1432(a)(1)(F), and in accordance with the verdict each was sentenced to not less than two nor more than five years' imprisonment and fined $3000. Both appellants now appeal to this court. We find no reversible error and affirm the convictions.

In the first issue presented for review, the appellants challenge the sufficiency of the evidence. The state's proof, which the jury accredited, showed that on October 11, 1979, a five-acre field of marijuana and sunflowers was discovered during a search of appellants' 57.5 acre farm in Hardin County. Although the suspected marijuana was never scientifically tested, several officers who had had some training in marijuana recognition identified the suspected plant substance as, in fact, being marijuana.

The suspected marijuana was destroyed prior to the trial and, thus, none of the plant substance was admitted into evidence. Photographs of the field, however, were introduced. In addition, both appellants made pretrial confessions admitting that they were growing marijuana to sell out of state. Clearly, the evidence is sufficient to justify a rational trier of fact in finding appellants guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Rule 13(e), T.R.A.P.

In the next issue presented for review, the appellants contend that the search of their farm was in violation of both the United States and Tennessee Constitutions and, thus, the testimony and photographs of the suspected marijuana found on their property and their subsequent confessions should have been suppressed.

The proof with regard to the search showed that on October 11, 1979, Deputies Jim Winborn and Wallace Stanfill were advised by two informants that the appellants were growing marijuana on their farm. Deputy Stanfill notified the sheriff of this information while Deputy Winborn went with the informants to the suspected marijuana field. In route to the field, Winborn traveled by truck off of a public road onto an old log road as far as the terrain would permit; he then walked over a half mile through a heavily wooded area until he came upon the suspected field. Winborn then waited until the sheriff arrived before taking any further action.

Eventually the sheriff and several deputies arrived with a search warrant, at which time the appellants' house on the premises was searched and appellant Doelman was arrested. Suspected marijuana was also found in the house. The house was in a separate clearing 300 to 400 feet from the field, was separated from the field by a heavily wooded area, and was not enclosed within a fence. The house was not seen by Winborn until after the suspected marijuana field was discovered. The proof did not show that the farm was fenced or posted.

At the hearing on the motion to suppress, the trial judge found the search warrant invalid in that the affidavit contained a misrepresentation by the affiant. The trial judge ordered all evidence with regard to what was discovered inside the house suppressed. However, the trial judge refused to suppress any other evidence based on his conclusion that Deputy Winborn's observation of the field was within the "open fields" exception to the warrant requirement.

On appeal, the appellants, citing State v. Lakin, 588 S.W.2d 544 (Tenn.1979), contend that the trial judge erred in finding the farm to be outside the scope of the warrant requirement. The appellants contend that Deputy Winborn's entry upon their land was in violation of the Fourth Amendment to the United States Constitution and Article I, Section 7, of the Tennessee Constitution. In Lakin our Supreme Court noted that for purpose of the "open fields" doctrine these constitutional provisions have somewhat different meanings.

Under the federal constitution, Winborn's actions in coming upon the farm were subject to the warrant requirement if the appellants had a legitimate expectation of privacy in the area searched. State v. Wert, 550 S.W.2d 1 (Tenn.Cr.App. 1977); LaFave, 1 Search and Seizure, sec. 2.4(a)(1978); 1 Wharton's Criminal Procedure, sec. 150 (12th ed., C.E. Torcia, 1974). Given the physical state of the land in this case (heavily wooded area without any indicia of private ownership) a reasonable person might have concluded that the area traversed was open to the public and not subject to the privacy which attaches from private ownership. The appellants had no legitimate expectation of privacy.

However, as pointed out in Lakin, the Tennessee Constitution is somewhat more protective of private property rights. Article I, Section 7 of the Tennessee Constitution, among other things, protects "possessions" from unreasonable searches and seizures. In Welch v. State, 154 Tenn. 60, 289 S.W. 510 (1926), the Supreme Court stated that the word "possessions" was placed in the Constitution to limit searches of real and personal property which was in actual...