State v. Lange

Decision Date16 October 1990
Docket NumberNo. 90-0743-CR,90-0743-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. William M. LANGE, Defendant-Respondent.
CourtWisconsin Court of Appeals

Sharon Ruhly, Asst. Atty. Gen., argued, and Donald J. Hanaway, Atty. Gen., on briefs, for plaintiff-appellant.

Kenneth L. Lund, Asst. State Public Defender, for defendant-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

The state of Wisconsin appeals nonfinal orders 1 suppressing 170 marijuana plants seized under a warrant. The warrant had been obtained in partial reliance on an earlier police seizure of one marijuana bud for testing, and the trial court determined that the earlier police seizure involved an impermissible fourth amendment violation of Lange's curtilage.

The state contends that the trial court erred by determining that the bud was seized within the curtilage of Lange's home and by suppressing evidence seized pursuant to a warrant independently supported by probable cause when all evidence of the questionable intrusion is excised. Lange contends that the trial court erred by determining that an aerial search of his property using vision-enhancing devices was permissible and urges that we deem this search a separate fourth amendment violation and an alternative ground for upholding the trial court's suppression order.

We conclude that the garden from which the marijuana bud was seized was within the curtilage of Lange's property under the Supreme Court's test in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). We agree with the trial court that the visually-assisted aerial surveillance was not an infringement on Lange's fourth amendment rights. Finally, we hold that admissibility of evidence under the independent source doctrine is controlled by the test enunciated in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), and we remand this matter to the trial court to determine whether the investigating agent would have sought a search warrant if there had been no illegal intrusion.

In June of 1989, Darwin Krall, a conservation warden pilot for the state Department of Natural Resources, flew over William Lange's property while en route to Eau Claire. Lange's property includes a garden approximately thirty feet behind the house, surrounded on three sides by trees and dense undergrowth. Krall, using binoculars, noticed plants that he thought could be marijuana growing in the garden. Krall had received training in the aerial identification of marijuana plants. He did not act on the information at the time of his initial observation, but made a mental note of the location of Lange's farm.

In August 1989, the state Division of Criminal Investigation (DCI) enlisted Krall's aid in making flights aimed at drug eradication. On August 21, Krall again flew over Lange's property and programmed its location into his navigational computer. He also took photographs of the property, using a camera with a standard 50-mm. lens.

On August 22, Krall flew over the property a third time, accompanied by agent Jeffrey Kostner of the DCI. Both Kostner and Krall identified the plants growing in Lange's garden as marijuana. Krall again took photographs, this time using a telephoto lens. All three flights were in a fixed wing aircraft, and Krall never flew below an altitude 800-1,000 feet above the ground.

Later in the evening of August 22, Kostner, Krall and another DCI agent approached Lange's property through a cornfield. Kostner looked through an opening in the trees and observed seven-foot marijuana plants growing in the garden. Kostner testified that there was a snow fence, approximately four feet tall, extending partially along the east side of the garden, at the tree line.

Kostner then proceeded to enter the tree line and snip one of the marijuana buds. He testified that he clipped the bud while standing at the southeast end of the garden, south of the point where the snow fence ended. Lange testified that the nearest marijuana plant was located nine or ten feet beyond the snow fence. When Kostner returned to his office, he field-tested the sample bud, using the Duquenois-Levine test for tetrahydrocannabinols.

Kostner obtained a search warrant for Lange's house, outbuildings, curtilage and attached land. The warrant application stated that he was seeking marijuana, equipment used to grow and package marijuana, drug sales records, growing records, drying equipment and telephone toll records. In his affidavit in support of the warrant, Kostner indicated that his aerial and open field observations and the positive testing of the marijuana bud sample provided part of his probable cause basis for seeking the warrant.

Lange moved to suppress the evidence of the marijuana plants, which he contended were seized without a legal warrant. The trial court ruled that the aerial and open field observations that formed part of the basis for the warrant were permissible. It found that "up to that point, we had proper police conduct, and we had certainly, based on all evidence in front of this Court, sufficient evidence to support a warrant." The court concluded, however, that the clipping of the marijuana bud was an unconstitutional invasion of Lange's curtilage and ordered the suppression of the marijuana plants seized pursuant to the warrant.


The state contends that the trial court erred by determining that the bud was seized within the curtilage of Lange's home. There is some question as to the appropriate standard of review on this issue. Lange contends that the question whether a place is within the "curtilage" of the house is a question of fact, citing Ball v. State, 57 Wis.2d 653, 661, 205 N.W.2d 353, 356 (1973). Findings of fact by a trial court shall not be set aside on appeal unless clearly erroneous. Section 805.17(2), Stats.

More recent Wisconsin case law, however, appears to call Ball 's holding into question, and suggests that the issue of whether a place forms part of the "curtilage" of a home is a matter of constitutional fact. See, e.g., State v. Murdock, 155 Wis.2d 217, 226, 455 N.W.2d 618, 621 (1990) (whether the facts satisfy the constitutional requirement of reasonableness and whether a particular place is an area from which a defendant might secure a weapon are matters of constitutional fact). Constitutional facts depend on findings of historical fact. The latter are reviewed under the great weight/clearly erroneous standard. State v. Griffin, 131 Wis.2d 41, 62, 388 N.W.2d 535, 543 (1986), aff'd, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). An appellate court exercises independent appellate review of constitutional facts. Murdock, 155 Wis.2d at 226, 455 N.W.2d at 621.

The line between historical fact and constitutional fact is "often fuzzy at best." Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 176, 103 S.Ct. 2933, 2945, 77 L.Ed.2d 545 (1983). The curtilage concept originated at common-law to extend the same protection to the area immediately surrounding a dwelling house as that extended to the house itself. Dunn, 480 U.S. at 300, 107 S.Ct. at 1139. The concept of curtilage "plays a part ... in interpreting the reach of the Fourth Amendment." Id. A constitutional fact is one whose determination is "decisive of constitutional rights." R. Aldisert, The Judicial Process 704 (1976) (citing W. Bishin & C. Stone, Constitutional Facts, Law Language & Ethics 365-70 (1972)).

We need not decide this issue because, under either standard, we affirm the trial court's finding that the tree line surrounding Lange's garden marked his curtilage. The United States Supreme Court has provided courts with a four-factor test to aid in the determination of curtilage questions. Dunn, 480 U.S. at 301, 107 S.Ct. at 1139. We analyze the trial court's findings in light of the Dunn factors.

First, we examine the proximity of the area claimed to be curtilage to the home. The trial court found that the garden was within ten yards of Lange's home. The state concedes on appeal that the proximity of the garden is one factor that might support a determination that the garden was within the curtilage of the house.

Second, we inquire whether the area is included within an enclosure surrounding the home. The trial court found that "it's completely surrounded by heavy, heavy tree line, not just some shelter belt, but thoroughly dense trees on the better part of three sides and scattered trees and brush along the remainder, that clearly delineates a living area." The state argues that Dunn requires the enclosure to surround both the house and the garden, and a three-sided enclosure does not suffice to meet this requirement. Whatever the merits of the state's interpretation of Dunn, the undisputed evidence demonstrates that the house and garden stood alone in the middle of farm fields, surrounded except for the driveway entrance on all four sides by trees, with the concentration of trees heavier on the three sides that also enclosed the garden.

The state also argues that the existence of a four-foot-high snow fence, constructed of spaced pickets and wire, between the house and the garden served to separate the areas and remove the garden from the curtilage of the house. We disagree. The undisputed evidence indicates that this fence did nothing to "screen" the garden from the house; in fact, vegetation behind the fence was clearly visible from the house's porch. The trial court's finding that the snow fence did not demarcate Lange's curtilage was not clearly erroneous.

Therefore, the trial court could correctly conclude that the garden here was included within an enclosure surrounding the home. Thus, the second factor of the Dunn test supports a determination that the garden is within Lange's curtilage.

Third, we ask the...

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