State v. Forshey

• Decision Date: 19 April 1989
• Docket Number: No. 18549,18549
• Citation: 182 W.Va. 87,386 S.E.2d 15
• Parties: STATE of West Virginia, v. Terry Lee FORSHEY.
• Court: West Virginia Supreme Court

Page 15

386 S.E.2d 15

182 W.Va. 87

STATE of West Virginia, v.Terry Lee FORSHEY.

No. 18549.

Supreme Court of Appeals of West Virginia.

April 19, 1989.

Syllabus by the Court

1.Under the open fields doctrine, when law enforcement officials through aerial observation identify contraband or evidence of a crime that is plainly visible on property which carries no indicia that the owner or possessor thereof had a reasonable expectation of privacy, the warrantless aerial observation and seizure of the contraband does not constitute a constitutional violation of the protections guaranteed by the Fourth Amendment.

2.A warrantless seizure of a person's property based on aerial observation made by law enforcement personnel is constitutionally permissible where an exception to the warrant requirement exists.

3."It is not a search for the police to discover evidence in plain sight and the warrantless seizure of such evidence is constitutionally permissible provided 1) the police observe the evidence in plain sight without the benefit of a search [without invading one's reasonable expectation of privacy]; 2) the police have a legal right to be where they are when they make the plain sight observation; and, 3) the police have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crimes."Syllabus Point 3, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50(1980).

David M. Finnerin, Parkersburg, for Terry Lee Forshey.

C. Scott Durig, Asst. Pros.Atty., Parkersburg, for State.

WORKMAN, Justice:

This case is before the Court upon an appeal by Terry Lee Forshey.It arises from an order of the Circuit Court of Wood County which accepted a conditional guilty plea, ¹ and adjudged the defendant guilty of manufacturing marijuana.The court placed the defendant on probation for a three-year period after suspending execution of his sentence.The only assignment of error made by the defendant is that the trial court erred in refusing to suppress, from use as evidence against the defendant, certain marijuana plants seized from the defendant's property without a search warrant.We conclude that the evidence was properly seized under the open fields doctrine and the plain view exception to the warrant requirement and affirm the defendant's conviction.

On July 29, 1987, Howard Mehringer, a helicopter pilot, Sergeant S.F. Null, a State Police officer, and Deputies Terri Fluharty and Ronald Barniak of the Ritchie County Sheriff's Department were engaged in helicopter surveillance looking for marijuana plants.

Marijuana plants were observed growing in the vicinity of a chicken coop building on what became known as the Forshey property.These marijuana plants were not visible from the public road.Title to the Forshey property is actually held in the name of Sharon Lutz, subject to a life estate in her parents, Elsie and Charles Forshey.Mr. and Mrs. Forshey lived in one house on the property and their son, Terry Forshey, lived in another house located on the same property.

The helicopter pilot landed on the Forshey property.Sergeant Null instructed the two deputies to seize the marijuana plants growing next to the chicken coop.Sergeant Null and Howard Mehringer proceeded to Charles and Elsie Forshey's house.Elsie Forshey was in the front yard of her home shucking corn; Charles Forshey was sitting on the front porch; and a sixteen-year-old girl, Lucie Wright, was in the front yard stringing beans.

Sergeant Null determined from the Forsheys that their property was located in Wood County, West Virginia.He was unsuccessful in reaching the Wood County State Police Detachment on his radio unit, and therefore asked and received permission to use the telephone at the Forshey home.Sergeant Null telephoned the Wood County State Police Detachment and gave the local officers directions to the Forshey property.

Sergeant Null testified that it was approximately twenty-five minutes before the Wood County State Police arrived at the Forshey property.

When the local officers arrived at the scene, the marijuana plants in the vicinity of the chicken coop previously observed from the air (hereinafter called first set of plants) had already been pulled out of the ground and stacked in the vicinity of the helicopter.In addition, all four occupants of the helicopter had walked down from the parents' house, over a hill to the vicinity of the defendant's house and outbuilding.There they observed various marijuana plants in the vicinity of the defendant's house, including some planted in the ground, some in a wagon in front of an outbuilding, and some located inside an outbuilding, the doors of which were standing open (hereinafter called second set of plants).²

Additional state police officers had been requested by Sergeant Null, and when they arrived upon the scene, a written consent to search was obtained from Charles and Elsie Forshey.When the defendant arrived home that day, an officer asked his permission to search his residence and he consented.No marijuana was located in the residence.

The main issue before the Court is whether the warrantless seizure of the marijuana plants observed from the air upon the Forshey property was reasonable under the Fourth Amendment to the United States Constitution.³The defendant contends the chicken coop, and all the other outbuildings on the Forshey property were within the curtilage of the defendant's home.Therefore, the marijuana plants were not found in open fields but in a constitutionally protected area.The State, in arguments submitted before the lower court, ⁴ contends that the warrantless seizure of the defendant's property was reasonable because of the open fields doctrine and the plain view exception to the warrant requirement.

The Supreme Court of the United States in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898(1924) originated the "open fields" doctrine by refusing to extend the "special protection accorded by the Fourth Amendment" to cover things seized in open fields.Id. at 59, 44 S.Ct. at 446.Then, in a later case, the Court further explained that the government's intrusion onto open fields was not one of those prohibited by the Fourth Amendment since there is "no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields" or land that is generally "accessible to the public and the police in ways that a home, an office, or commercial structure would not be."Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214(1984).This Court also recognized and applied the open fields doctrine in State v. Weigand, 169 W.Va. 739, 289 S.E.2d 508(1982).

In the Weigand case, deputies observed marijuana plants growing on defendant's property while patrolling a public highway.The deputies returned to the sheriff's office and reported their discovery to the sheriff.The next day the sheriff went to the area where the plants were seen growing and concluded that the plants were marijuana.The sheriff returned to the jail to get assistance before again returning to the defendant's property and seizing a number of marijuana plants from the property without a search warrant.169 W.Va. at 740, 289 S.E.2d at 509.

This Court held that law enforcement officials who sight, from a public highway marijuana plants which are not surrounded by any signs of privacy are entitled to go upon the property and seize those plants without a warrant.Id.169 W.Va. at 742, at 510.

In California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210(1986), reh'g denied478 U.S. 1014, 106 S.Ct. 3320, 92 L.Ed.2d 728(1986)andUnited States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326(1987), reh'g denied481 U.S. 1024, 107 S.Ct. 1913, 95 L.Ed.2d 519(1987), the United States Supreme Court further expanded the open fields doctrine.In Ciraolo, the Court held that the warrantless aerial observation of a fenced-in backyard within the curtilage ⁵ of the defendant's home did not violate the Fourth Amendment.476 U.S. at 207, 106 S.Ct. at 1809.

The facts of the present case are very similar to those in Ciraolo, in that the police went up in the helicopter for the sole purpose of locating marijuana plants that would otherwise go undetected.The plants located on the Forshey property were not only easily identifiable and unobstructed from the view of the helicopter, but were not located on the property of the defendant, but that of his parents.Thus, as far as the helicopter observation of the marijuana plants on the Forshey property, we agree with the Court in Ciraolo which reasoned:

In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.

Id. at 215, 106 S.Ct. at 1813-14.

The defendant in this case is most concerned that the seizure of the marijuana plants occurred within what he alleges is curtilage to his home.In United States v. Dunn, supra, the Supreme Court addressed the curtilage issue as it relates to the open fields doctrine.The open fields doctrine was applied to uphold the issuance of a search warrant based upon facts gained from three warrantless searches of the defendant's property by law enforcement officers.The Drug Enforcement Administration (DEA) discovered that Dunn's co-defendant had purchased large quantities of chemicals used in the manufacture of illegal drugs.The DEA agents then obtained warrants which authorized the installation of miniature electronic transmitter tracking devices, or "beepers" in the drums containing the...