State v. Kelly

• Decision Date: 31 January 1984
• Docket Number: No. 13796,13796
• Citation: 678 P.2d 60,106 Idaho 268
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Joseph P. KELLY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 60

678 P.2d 60

106 Idaho 268

STATE of Idaho, Plaintiff-Respondent, v. Joseph P. KELLY, Defendant-Appellant.

No. 13796.

Court of Appeals of Idaho.

Jan. 31, 1984.

Rehearing Denied March 29, 1984.

Petition for Review Denied June 11, 1984.

Joseph P. Kelly, defendant-appellant pro se.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Timothy M. Walton, Steven W. Berenter, Deputy Attys. Gen., Boise, for plaintiff-respondent.

SWANSTROM, Judge.

Joseph Kelly appeals from his felony conviction for possession of marijuana with intent to manufacture. I.C. § 37-2732(a)(1)(B). The issues we address in this opinion fall into two broad categories: (1) whether the contraband introduced by the state against Kelly at his trial should have been suppressed upon the ground that it was seized in violation of the fourth amendment; and (2) whether Idaho's laws forbidding and penalizing the growing of marijuana are unconstitutional. We affirm the judgment of conviction.

In 1978 Joseph Kelly purchased certain rural property in Adams County known as the See-Saw Ranch, consisting of a house, some outbuildings and acreage adjacent to U.S. Highway 95. In the late afternoon of September 14, 1978, Adams County Sheriff Jim Hileman and his deputy, Leroy Bean, drove to the ranch to investigate an informant's tip that marijuana was growing there. The officers parked their vehicle along Highway 95 and walked down an embankment to Kelly's fence line. There they observed a patch of approximately 450 well-tended young plants on the other side of the fence. They concluded it was marijuana. Both men immediately crossed over the fence and uprooted the plants. They noted that Kelly's dwelling was about 300 yards from the marijuana patch and that there appeared to be a path leading from the patch to the house. Armed with this information, Bean drove to a magistrate's home in Weiser to obtain arrest and search warrants. ¹ Bean testified under oath before the magistrate who found probable cause for issuing warrants to arrest Kelly and to search the buildings and premises of the See-Saw Ranch. Later that evening several officers returned to the ranch. They arrested Kelly and conducted a thorough search of the house and outbuildings, discovering dried marijuana, paraphernalia for smoking and processing marijuana and more growing plants. Unable to complete the search that evening, several officers returned the following day to finish the task. As a result of evidence obtained from this search and from the initial seizure, Kelly was convicted following a jury trial.

I

Kelly first urges that the contraband introduced against him should have been suppressed because the initial seizure of the growing plants, which furnished the basis for obtaining the search warrant, was illegal. He emphasizes that in obtaining the evidence the officers trespassed upon his property. The question is whether the fourth amendment of the United States Constitution applies to the initial warrantless search and seizure, for if it does not, the evidence need not be suppressed; but if it does apply, at least the evidence seized initially must be suppressed.

Unless a person has a legitimate or reasonable expectation of privacy in the area searched, he is not entitled to the protections of the fourth amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Martinez, 102 Idaho 875, 643 P.2d 555 (Ct.App.1982). The reason is that "the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511. From this rule Justice Harlan derived his well-known twofold test. Before the fourth amendment applies to a search and seizure, a person must, first, "have exhibited an actual (subjective) expectation of privacy and, second, that ... expectation [must] be one that society is prepared to recognize as 'reasonable.' " Id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the Supreme Court held that the fourth amendment protections do not extend to "open fields." Those protections are not brought into play unless there is an official search and seizure of a person, his papers or his effects, or an "actual physical invasion of his house 'or curtilage' for the purpose of making a seizure." Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928). A continuing debate has arisen in the courts concerning the effect of Katz on the "open fields doctrine" promulgated by Hester. See Case Comment, Katz in Open Fields, United States v. Oliver, 20 AM.CRIM.L.REV. 485 (1983). We, however, need not enter this debate today as, even under the narrower Katz formulation, the fourth amendment does not apply to the warrantless search and seizure in this case.

Applying Katz, we first hold that whether Kelly had a subjective expectation of privacy regarding the observation of marijuana growing near the boundary of his property, his expectation was in no sense reasonable. The patch was growing behind a barbed wire fence fifty feet from a public highway and the plants were visible, if not readily identifiable, to a person standing on the roadway. While it is not clear, the record suggests that the land between the highway and the fence is public property. Kelly does not contend, and the record does not show, that the officers committed any trespass until they crossed the fence adjacent to the highway right-of-way. They had already identified the plants as marijuana before they crossed the fence to seize the plants. It is clear that Kelly could have no reasonable expectation that members of the public would not walk along the highway right-of-way and look onto his property. This is no more than the officers did when they identified the plants as marijuana. The observation of the marijuana was thus not a search prohibited by the fourth amendment.

This case is akin to State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974). In that case, after receiving a tip that marijuana was growing in the defendant's backyard, the police received permission from a neighbor to enter her yard and look into Pontier's backyard for suspicious plants. Looking over a short picket fence and through overhanging foliage, the police identified marijuana plants growing near the defendant's garage. Relying upon Katz, supra, our Supreme Court held that the police observation of the defendant's yard was not a search within the purview of the fourth amendment. The court held that since Pontier was growing plants in a place where they were readily observable by a curious neighbor, the defendant had no reasonable expectation of privacy concerning the plants. 95 Idaho at 711, 518 P.2d at 973. See also United States v. Rucinski, 658 F.2d 741 (10th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 649 (1982).

It is, however, one thing to say that Kelly had no reasonable expectation of privacy which would permit him to challenge the warrantless observation of the marijuana from outside his property, but it is quite another thing to say that he had no reasonable expectation of privacy to prevent a warrantless trespass onto his property to seize the marijuana. The search and the seizure require independent analysis under Katz to determine whether either violates the fourth amendment. Having held that the observation of the marijuana was not a prohibited search, we now address the question of whether the officers violated the standards of the fourth amendment by crossing the barbed wire fence and seizing the growing marijuana.

In Katz, as noted above, the United States Supreme Court recognized that the fourth amendment protects people, not places, against unreasonable searches and seizures. The Supreme Court further stated that "it becomes clear that the reach of the Amendment cannot turn upon the presence or absence of a physical intrusion to any given enclosure." Katz v. United States, 389 U.S. at 353, 88 S.Ct. at 512. On the other hand, "the Court has not altogether abandoned the use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment." Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978). Therefore, the fact that the officers had to trespass on Kelly's property to seize the marijuana has some bearing on whether he is entitled to fourth amendment protection against that seizure.

Although the vitality of Hester v. United States, supra, is uncertain, it at least stands for the proposition "that open fields are not areas in which one traditionally might reasonably expect privacy." United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.1976). A person, however, may strengthen his expectation of privacy in an open field should he attempt to exclude the public by means of, for example, a fence. See United States v. Van Dyke, 643 F.2d 992 (4th Cir.1981). In the present case, the fence which divided Kelly's land from the outside world was a barbed wire fence. There is nothing about a barbed wire fence in itself which would be inconsistent with a reasonable expectation of privacy. While ineffective to keep out prying eyes, it may well be effective to prevent a physical trespass.

However, the fence with which Kelly seeks to establish a reasonable expectation of privacy seems of little value for either purpose. One observer stated at the suppression hearing that the wire was loose, some of the fence posts were leaning and some wire was lying on the ground. Under these circumstances we cannot say that Kelly had a reasonable expectation of privacy in this open field. Cf. People v. Fillhart, 93 Misc.2d 911, 403 N.Y.S.2d 642 (1978) (the court upheld a seizure which occurred on property enclosed by "a stone fence in poor condition, about two to...