State v. Townsend

• Decision Date: 06 December 1991
• Docket Number: No. 20111,20111
• Citation: 186 W.Va. 283,412 S.E.2d 477
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Ricky Lee TOWNSEND, Defendant Below, Appellant.

Page 477

412 S.E.2d 477

186 W.Va. 283

STATE of West Virginia, Plaintiff Below, Appellee, v. Ricky Lee TOWNSEND, Defendant Below, Appellant.

No. 20111.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 24, 1991.

Decided Dec. 6, 1991.

Syllabus by the Court

"The general rule is that where there is an illegal seizure of property, such property cannot be introduced into evidence, and testimony may not be given in regard to the facts surrounding the seizure of the property." Syllabus point 1, State v. Davis, 170 W.Va. 376, 294 S.E.2d 179 (1982).

Joanna I. Tabit, Deputy Atty. Gen. and A. Renee Coe, Asst. Atty. Gen., Charleston, for appellee.

David W. Frame, Clarksburg, for appellant.

PER CURIAM:

The defendant in this proceeding, Ricky Lee Townsend, was sentenced to from one to five years in the state penitentiary for possession of marijuana with intent to deliver. On appeal, he claims that a large cardboard box of marijuana which was admitted into evidence was the product of an illegal search and seizure. He also claims that a small baggie of marijuana seized during the search of his residence was improperly admitted, since the State failed to demonstrate his dominion over the area where it was discovered. Additionally, the defendant claims that the court allowed impermissible prosecutorial argument during the State's closing statement to the jury and that the trial court denied him probation based upon his decision to exercise his constitutional right to appeal. After reviewing the questions presented, as well as the record, this Court concludes that the box of marijuana was illegally seized and that the trial court erred in admitting it. The defendant's conviction is, therefore, reversed.

On August 17, 1989, the defendant, according to evidence adduced by the State, sold a plastic baggie of marijuana to a youthful, undercover police informant. The sale prompted Deputy Sheriff Jimmy Moss of the Gilmer County Sheriff's Department, who was working with the informant, to obtain a search warrant which authorized the search the defendant's home, which was described as "a white wood frame house located on Alice Rd. in Gilmer County, one story house."

Deputy Moss proceeded to execute the search warrant and search the defendant's home, which was inhabited by the defendant, his wife and children, and the defendant's parents. That search produced a small plastic baggie of marijuana.

In executing the search warrant, Deputy Moss also searched what he considered to be the "curtilage" of the house. The search extended to a hog house which was not mentioned in the warrant and which was located over 200 feet from the defendant's mansion house. The search of the hog house, which was a rather closed structure, not generally open to the public or public view, and actually used for the raising of hogs, produced the large box of marijuana which is at the center of the defendant's principal assignment of error in this case.

After the search, the defendant was placed under arrest and charged with delivery of a controlled substance to a minor in violation of W.Va.Code, 60A-4-406, and possession of a controlled substance with intent to deliver in violation of W.Va.Code, 60A-4-401(a)(ii).

Prior to the defendant's trial, the defense attorney moved to suppress the box of marijuana seized from the hog house. The circuit court denied that motion and, as a consequence, during trial, the prosecution was permitted to introduce the box of marijuana into evidence.

At the conclusion of the trial, the defendant was acquitted of the charge of delivery of marijuana to a minor. The acquittal was apparently based upon an entrapment defense which had been advanced by the defendant. The jury, however, found the defendant guilty of possession of a controlled substance with intent to deliver. This action was apparently predicated upon the discovery of the box of marijuana in the defendant's hog house.

On appeal, the defendant's first contention is that the trial court erred in admitting the box of marijuana seized from the hog house. Specifically, he claims that he had a legitimate expectation of privacy in the interior of the hog house and that the State's search of the hog house was outside the scope of the search warrant and consequently illegal.

In this Court's view, the fact that the defendant had a reasonable expectation of privacy in the interior of his hog house is rather clear. If the hog house was within the curtilage of the defendant's residence, then, under pronouncements of the Supreme Court of the United States, he had the same expectation of privacy as he would have in the residence itself. See, e.g., United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), and Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). On the other hand, if the hog house was outside the curtilage, then, under the particular facts of the case, where the defendant used the building as an adjunct to his farming business, he still had a reasonable expectation of privacy, under the principle that an individual has a reasonable expectation of privacy in a closed area, not generally open to the public or public view, where he engages in business in that area. See Norman v. State, 379 So.2d 643 (Fla.1980) [a case dealing with farm outbuilding]; Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); W. LaFave, Search and Seizure, § 2.4(b) (2d ed. 1987), and the many cases cited therein.

The fact that the defendant had a reasonable expectation of privacy in his hog house, does not, of course, mean that law enforcement officers were precluded from searching it. If the hog house was within the curtilage, in this Court's view, it arguably was within the scope of the search warrant issued, and the search was arguably appropriate.

Recently, in State v. Forshey, 182 W.Va. 87, 386 S.E.2d 15 (1989), this Court discussed what constitutes the curtilage of a residence for Fourth Amendment purposes. The Court concluded that a chicken coop located approximately 195 feet away from a mansion house was not within the curtilage. In reaching this conclusion, the Court cited with approval United States v. Dunn, supra, where the United States Supreme Court enunciated four factors which impact on the question of whether an area is within the curtilage of a residence for Fourth Amendment purposes. Those factors are the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the house, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. In Dunn, the Court concluded that a barn located approximately 180 feet from the house, not within the area surrounding the house that was enclosed by a fence, not being used for intimate activities of the house, and not protected from observation by those standing in open fields, was not within the curtilage. In Forshey, the Court, in effect, picked up the guiding principles of Dunn and carried them firmly into our law.

In the present case, the record indicates that the hog house in question was further from the defendant's house than either the barn in Dunn or the chicken coop in Forshey. Although the area was not fenced, the record suggests that the grass in the area immediately surrounding the defendant's mansion house, as well as surrounding certain other outbuildings, was mowed, whereas the grass around the hog house itself was not mowed. The hog house was apparently standing in open woods. There was nothing to suggest that the defendant in any way attempted to surround it with the aura of privacy involved in a home and the immediately surrounding area. Lastly, although the evidence showed that the defendant kept hogs in the house and that they required periodic feeding, there is no indication that the hog house was in any way intimately connected with the activities of the residence itself.

Under the principles in Forshey and Dunn, this Court believes that the hog house cannot properly be deemed within the curtilage of the defendant's residence. Given this fact, even if the search warrant issued by ...