State v. Stanton

• Decision Date: 26 November 1971
• Citation: 490 P.2d 1274,7 Or.App. 286,93 Adv.Sh. 1273
• Parties: STATE of Oregon, Respondent, v. Thomas Eugene STANTON, Appellant.
• Court: Oregon Court of Appeals

Page 1274

490 P.2d 1274

7 Or.App. 286

STATE of Oregon, Respondent, v. Thomas Eugene STANTON, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Sept. 24, 1971.

Decided Nov. 26, 1971.

Clemens E. Ady, Salem, argued the cause for appellant. With him on the brief were Williams, Wheeler & Ady, Salem.

John L. Snyder, Dist. Atty., Dallas, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Defendant appeals from a conviction of the crime of possession of marihuana. ORS 474.020. The only assignment of error is that the trial court erred in failing to grant defendant's motion to suppress substantial evidence seized from his farm.

The facts, as developed at the hearing on the motion to suppress, are as follows: On August 28 or 29, 1970, a private citizen delivered a plant to Officer Richards of the Williamina Police Department. The officer was unable to identify the plant, but left it for Chief of Police Colton with a note stating who brought it to the police department. (This note did not include any report as to where the plant had been obtained.) On August 29, Chief Colton found the plant and note; he identified the plant as marihuana, and immediately went to the home of the private citizen who had delivered it to the police.

As this point there is considerable confusion in the record. Apparently the citizen who brought the marihuana plant to the police was the father of two boys, aged about 12 and 17. And apparently it was one or both of these boys who actually found and severed the marihuana plant in question, and then gave it to the father, who in turn gave it to the police.

The record is clear that when Chief Colton arrived at the family residence, the father was not present, and Chief Colton spoke with the younger son. But matters are again confused as to what Chief Colton was told. At one point he testified he was told that the marihuana plant came from defendant's farm, and at another point he testified he could not remember what, if anything, he was told.

It is clear that Chief Colton, at his request, was then guided by the younger son to a location on defendant's property where the Chief observed a large amount of marihuana under cultivation. Chief Colton picked one of these plants and returned to his office to apply for a search warrant.

The affidavit Chief Colton executed in support of his application for a search warrant reads:

'I, ROBERT J. COLTON, being first duly sworn, depose and say:

'* * *

'That, by reason of the following facts the undersigned has reasonable grounds to believe that all or part of such marijuana is presently located on the premises owned by Thomas E. Stanton and Sandra Stanton at Route 1, Box 255, Willamina, Oregon, said premises also being known as 'Green Parrot Goat Ranch.'

'That I am Chief of Police for the City of Willamina, Oregon, and on the 29th day of August, 1970, a private citizen delivered to Earl Richards of the Willamina Police Department certain plant material which Earl Richards gave to me. Earl Richards stated to me that the private citizen who delivered said plant material to him stated that he obtained said plant material on the 28th day of August, 1970, and that there were more plants of the same type growing in the fenced area from which the plant material was removed. I have personally known this private citizen for approximately 20 years and have always found him to be trustworthy and reliable. I have observed green marijuana plants on prior occasions (sic) and after examining the plant material delivered to the Willamina Police Department I identified it to be marijuana. After identifying the plant material I traveled to the home of the aforementioned private citizen and inquired where the plant material had been obtained. I was guided to the premises at the above address and the location from which said plant material was obtained was pointed out to me personally.

'* * *.'

At the suppression hearing Chief Colton was unable to explain the discrepancies between his earlier affidavit and his testimony at that time. The affidavit refers to statements Officer Richards made to Chief Colton. But the Chief's testimony made it clear he instead received a note from Richards that evidently only included the name of the private citizen who had turned in the plant. The affidavit implies that the private citizen personally picked the plant. But the record of the suppression hearing indicates the plant was apparently picked by the sons of the private citizen. The affidavit claims the private citizen reported more of the same kind of plant was growing in the area from which the plant was removed. But all indications at the suppression hearing were that such was never said, or at least, if said, it was not the personal knowledge of the private citizen (the father). And the affidavit omits all mention of the facts that Chief Colton personally observed a large number of marihuana plants under cultivation on defendant's farm, and that he personally picked another plant.

The defendant contends, and the state concedes, that when Chief Colton went on defendant's property he was trespassing. ¹ The defendant argues that this trespass constituted an unconstitutional search under the Fourth Amendment.

We have previously noted the question of whether a prior trespass invalidates a subsequent search, but have not squarely disposed of it. See, State v. Brown, 1 Or.App. 322, 461 P.2d 836 (1969), Sup.Ct. review denied (1970); State v. Albertson, 1 Or.App. 486, 462 P.2d 458 (1969), Sup.Ct. review denied (1970). We find it necessary to reach that question at this time. ²

The court concluded, and the state here argues that Chief Colton's trespass was not an unconditional search under the 'open-field' doctrine of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). In that case the Supreme Court held that 'the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. * * *' ³ 265 U.S. at 59, 44 S.Ct. at 446. Defendant here argues that Hester is no longer good law. At oral argument the state conceded there was some serious question about the validity of Hester and its progeny in light of later United States Supreme Court decisions.

The rationale of Hester was that some areas are constitutionally protected against unreasonable searches while other areas are not. ⁴ However, protection has never been strictly limited to 'persons, houses, papers and effects.' Even before the Hester decision, the Supreme Court had acknowledged that the protections of the Fourth Amendment extend to an office, ⁵ a store, ⁶ and the contents of a sealed letter in the mail. ⁷

After the Hester decision, the list of constitutionally protected areas grew steadily, and was held to include, for example, a hotel room, ⁸ a warehouse, ⁹ an automobile, ¹⁰ a taxicab, ¹¹ a garage, ¹² an employe's desk in a government office, ¹³ a chicken house, ¹⁴ and even a garbage can. ¹⁵

Defendant argues that the practice of automatically according constitutional protection to certain areas while automatically denying it to others is no longer viable. It is true that there has been a substantial reduction in the use of property concepts of applying Fourth Amendment principles.

'* * * We are persuaded * * * that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. * * * Distinctions such as those between 'lessee,' 'licensee,' 'invitee' and 'guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.' Jones v. United States, 362 U.S. 257 at 266, 80 S.Ct. 725 at 733, 4 L.Ed.2d 697.

'* * * We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts. * * *' Warden Penitentiary Maryland v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

The evolution away from the strict use of property concepts in these cases culminated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). That case involved the admissibility of evidence obtained by way of an electronic listening and recording device attached to the outside of a public telephone booth. The Supreme Court held the evidence to have been unconstitutionally obtained, and stated:

'* * * (T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected * * *.' 389 U.S. at 351--352, 88 S.Ct. at 511.

'It is true that this Court has occasionally described its conclusions in terms of 'constitutionally protected areas,' * * * but we have never suggested that this concept can serve as a talismanic solution to every Fourth Amendment problem.' 389 U.S. at 351, n. 9, 88 S.Ct. at 511.

Now under Katz, the inquiry must be whether the defendant had a Reasonable expectation of privacy in the area in question. See, generally, Note, 43 N.Y.U.L.Rev. 968 (1968). Mr. Justice Harlan's concurring opinion in Katz is helpful in defining how this inquiry should be made:

'* * * (T)here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ...