State v. Rogers

• Decision Date: 27 December 1993
• Docket Number: No. 91-561,91-561
• Citation: 161 Vt. 236,638 A.2d 569
• Parties: STATE of Vermont v. Candace and George A. ROGERS, Jr.
• Court: Vermont Supreme Court

Page 569

638 A.2d 569

161 Vt. 236

STATE of Vermont v. Candace and George A. ROGERS, Jr.

No. 91-561.

Supreme Court of Vermont.

Dec. 27, 1993.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Richard A. Unger and Matthew Colburn, Montpelier, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Defendants Candace and George Rogers appeal the denial of their motion to suppress evidence obtained in a search of their home, arguing that the warrant under which the search was conducted was defective. Defendants assert that the visual observation of their garden, performed by a state trooper for the purpose of corroborating an anonymous tip that defendants were cultivating marijuana on their property, was an illegal search under the federal and Vermont constitutions and consequently could not support a finding of probable cause for issuance of the search warrant. We affirm.

Defendants own a tract of wooded property on Chapel Road in Bennington, where they have constructed their home. The house lies in a clearing that includes a pond and, approximately 150 feet from the house, a large garden. The residence is secluded, as the thick growth of woodland prevents observation of the house and garden area from adjoining properties or the road.

In late August 1987, an anonymous informant telephoned a Vermont State Police trooper with information that a large marijuana garden was under cultivation at the Rogers' residence. The informant described to the trooper the point along Chapel Road at which he could enter the Rogers' property and, after traveling approximately 100 feet into the woods, reach a vantage point from which he could see a garden of eight- to ten-foot-tall marijuana plants. The caller also advised the trooper that the garden was protected by surveillance equipment. In a second telephone conversation, the informant told the trooper that an unidentified person had been caught in the garden by occupants of the house and threatened at gunpoint, and that because of this discovery, the marijuana had likely been harvested.

The trooper went to the site described by the informant, entering the woods from Chapel Road by a "type of path" that disappeared as the trooper advanced into the woods. He attempted to maintain a straight line through the thick vegetation, but was forced to cross a stretch of swampy terrain before reaching a point affording a view of defendants' garden area. From this position, he was able to observe that the garden was planted half with corn and that the other half had been recently harvested and tilled. The garden was surrounded by sheep fencing with a locked door, and there were cameras and spotlights positioned at its edge. Based on the anonymous tip and his personal observations, the trooper obtained a search warrant for defendants' residence and curtilage, where the state police seized a quantity of recently harvested marijuana from the house and outbuilding.

Defendants were charged under 18 V.S.A. § 4224 with cultivation of marijuana and possession of marijuana with intent to sell. Prior to trial, they filed a motion to suppress the evidence seized under the search warrant, arguing that the trooper's incursion on their land was an illegal search and could not be used to support probable cause for the warrant. The trial court originally granted defendants' motion to suppress, finding the defendants' garden within the curtilage of their home and that the investigating officer's actions had interfered with their reasonable expectation of privacy. Therefore, because the trooper's observations could not be used to establish probable cause for the warrant, the court ruled that the seized evidence was inadmissible.

The State appealed this ruling. On remand from this Court, the trial court reversed its previous decision and denied defendants' motion. The court concluded that the trooper's visual inspection of defendants' garden did not violate the Fourth Amendment because he did not physically invade defendants' curtilage. The court further found that the trooper's actions did not violate Chapter I, Article 11 of the Vermont Constitution because, in the absence of affirmative steps by the defendants to demonstrate a reasonable expectation of privacy in their woods, the police were justified in entering such "open fields" and observing anything in plain view.

On appeal, defendants assert that the garden area is clearly within the curtilage and, because their expectation of privacy in that area was both subjectively and objectively reasonable, the State was required to obtain a warrant before visually inspecting it. They argue that the natural exclusionary barrier--the woods--within which they constructed their home and garden conveyed their expectation of privacy in such a way that an objective person would know they sought to avoid the public gaze. Defendants claim that the trial court misapplied federal and state constitutional law by failing to recognize the high degree of protection afforded areas within the curtilage of a home.

The State suggests two summary means of affirming the decision below; neither was adopted by the trial court. Because we conclude neither means is supported by the record, we discuss them only briefly.

The State's first theory is that defendants invited onlookers to the vantage point used by the trooper by allowing a path to exist to that point. The trial court findings are not explicit on this point. They describe the trooper as following a "100 foot path," but emphasize the "very thick undergrowth," the surrounding trees and the swampy nature of the land. We have reviewed the evidence and find no support for the existence of a worn path from the mailbox to the place of observation. We conclude that the trial court used the word "path" to describe the trooper's route of travel and not to find a preexisting footway all the way to the observation point.

The second means of summary affirmance is more complicated. As discussed in more detail below, defendants' theory under either the Fourth Amendment to the United States Constitution or Chapter I, Article 11 of the Vermont Constitution depends upon the garden being within the curtilage to the house. The State argues that the garden is outside the curtilage and the decision can be affirmed on that basis. For the reasons discussed below, we reject this argument.

The trial court decision is also not explicit on this point. In its first decision, the trial court found that the garden was within the curtilage and decided for defendants on that basis. In the second decision following the remand, the court changed one finding of fact without taking new evidence. It changed its finding on the distance between the house and the garden from 90 feet to 150 feet. It did not, however, modify its determination that the garden was within the curtilage, probably in part because its new theory of analysis made this determination irrelevant. It concluded that as long as the trooper did not enter the curtilage, no search occurred. It is undisputed that the trooper did not enter the curtilage.

We agree with the State that the determination of the boundary of the curtilage is a mixed question of fact and law, entitled to some deference in this Court. See State v. Beresford, 156 Vt. 333, 335, 592 A.2d 882, 883 (1991) (finding of abandonment that would allow warrantless search reviewed under clearly erroneous standard). We do not agree, however, that we should treat the trial court decision as finding the garden to be outside the curtilage. The court's only finding on the curtilage issue is to the contrary, and the court did not modify its finding despite the change in the subsidiary distance finding. This is the finding to which we must defer.

The curtilage is an area outside the physical confines of a house into which the "privacies of life" may extend, and which receives the same constitutional protection from unreasonable searches and seizures as the home itself. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984); see State v. Byrne, 149 Vt. 224, 227, 542 A.2d 276, 278 (1988). In determining the confines of the curtilage, we have looked to the factors set forth in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987): (1) the proximity of the area in question to the home; (2) whether the area in question is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken to protect the area from observation by people passing by. The trial court applied these factors, and found that defendants' garden is within the curtilage of their home. ^*

Although the question is close, we affirm the trial court's conclusion that the garden was within the curtilage of the home. The nature of defendants' property is such that a distance of 150 feet from home to garden is not excessive. See United States v. Van Dyke, 643 F.2d 992, 994 (4th Cir.1981) (in "secluded setting" it is reasonable to conclude that the curtilage may embrace area fifty yards from home). But cf. Dunn, 480 U.S. at 301, 107 S.Ct. at 1139 (barn located sixty yards from house not within curtilage). Defendants' home is not an urban residence for which privacy expectations are reduced exponentially as the distance from the home increases. Moreover, the house and garden were constructed inside a clearing that affords substantial privacy from the casual passersby. We do not agree with the State's argument that the garden was physically separated from the house by the presence of the pond and a small private bridge. We fail to see how these topographical features provide any significant sense of separation between the house and garden.

The second Dunn factor, whether the curtilage is enclosed, favors the trial court's decision...