State v. Walle

• Decision Date: 29 June 1981
• Docket Number: No. 79-3197-C-3,79-3197-C-3
• Parties: STATE of Oregon, Respondent, v. Sharon Laverne WALLE, Appellant. ; CA 18974.
• Court: Oregon Court of Appeals

Page 377

630 P.2d 377

52 Or.App. 963

STATE of Oregon, Respondent, v. Sharon Laverne WALLE, Appellant.

No. 79-3197-C-3; CA 18974.

Court of Appeals of Oregon.

Argued and Submitted Feb. 18, 1981.

Decided June 29, 1981.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., John P. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

GILLETTE, Presiding Judge.

This is a criminal case in which defendant seeks reversal of the judgment entered on her conviction for the crime of Manufacture of a Controlled Substance. The sole issue on appeal is whether the trial court erred in failing to suppress evidence seized as a result of a warrantless search and seizure on property where the defendant was living. ¹ We conclude that the warrantless search and seizure was unreasonable and therefore reverse.

The evidence introduced at the suppression hearing reveals that on September 25, 1979, Jackson County detectives executed a search warrant on property adjacent to the Escale property. The warrant was for the seizure of marijuana plants. While on the adjacent property, one of the detectives spotted marijuana plants on the Escale property. He called this discovery to the attention of the other detectives. The detectives testifying at the suppression hearing agreed that the plants growing on the Escale property could be clearly seen from the adjoining property; although a wire fence separated the two parcels, it did not block their view in any way. The plants observed by the officers were about 20 feet from the fence and ranged in size from quite small to six to eight feet in height.

After their observations, the officers decided to enter the Escale property. They did that by crossing on to it from the point at which they had made their observations. As they approached the residence to identify the occupants, they heard a vehicle leaving the area. The officers called out, trying to summon someone on the property, but received no response. It is not clear if they actually went to the house. They did proceed to seize the marijuana plants they had seen on the property. Other plants, located behind the residence and observed as the officers approached the house, were also seized. The officers made no attempt to obtain a search warrant.

The officers testified that the Escale property was thickly vegetated and in a secluded rural area. They observed fences on the property but did not see any "no trespassing" signs. A creek or gully separated the two parcels of property near the point where the officers entered it. It is not clear if the officers crossed over a fence. From the description given, they may have had to cross the creek or gully. One officer did recall jumping across or wading through some water.

The evidence at the suppression hearing revealed that the defendant did not actually own the property in question; it was owned by the individual with whom she was living. Defendant had lived there for a little over two years and considered it her home. Both defendant and the owner of the property testified as to its secluded nature. Both expressed their feelings that the property was in a private area. The owner testified that he had put up "no trespassing" signs along the creek crossing and a "hot" fence along a portion of that area to keep people out. Apparently, the creek and this partial fence separated his property from the property the detectives had been searching. However, one could enter the Escale property from the adjacent property without having to cross the fence. The owner stated that a nudist colony was also adjacent to his property and that the residents of the colony occasionally got lost and "drifted" onto his property.

At a second hearing on defendant's motion to suppress, counsel for the state acknowledged that the search warrant which the officers were executing on the adjacent property was defective.

The trial judge denied the defendant's motion to suppress the evidence of the seized marijuana plants. He found, as a matter of fact, that the land in question is extremely rural, brushy and generally unfenced, that residents of the nudist colony occasionally wandered onto the land, that the marijuana plants were located near adjoining land and that they could be seen from the officers' vantage point on that adjacent land. On the basis of the above facts and his belief that the defendant was a "social guest" at the time of the seizure, ² the court concluded that both the search and warrantless seizure were reasonable. The court found that, although the defendant had a subjective expectation of privacy, that expectation was not reasonable, and the area was therefore not a constitutionally protected area.

In her brief, defendant focuses primarily on the illegality of the officers' presence on the neighboring property. She claims that, because the search warrant they were executing was invalid, the police did not have a right to be there, the "plain view" doctrine does not apply and the officers' observations and subsequent search and seizure were invalid. Defendant also contends that she had a reasonable expectation of privacy in the property in question.

It is helpful to distinguish between two types of "plain view." The doctrine of plain view, as the term is most commonly used, was established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), which held that evidence may be seized without a warrant where (1) there is a prior valid intrusion, (2) the discovery is inadvertent, and (3) it is immediately apparent to the police that they have evidence before them. In this case, defendant has no standing to complain about the officer's presence on the adjacent land. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). However, the officers' viewing of marijuana plants established only probable cause to believe that the property contained contraband; it did not legitimize an entry to effect a seizure. State v. Frink, 42 Or.App. 171, 174, 600 P.2d 456 (1979). "(P)lain view alone is never enough to justify the warrantless seizure of evidence." Coolidge v. New Hampshire, supra, 403 U.S. at 468, 91 S.Ct. at 2039. An entry to effect the seizure of contraband observed in plain view can only be made under the authority of a warrant or exigent circumstances. State v. Frink, supra, 42 Or.App. at 174, 600 P.2d 456. In this case the police did not have a warrant to seize the plants, and there was no evidence of exigent circumstances.

There is a second type of plain view, which involves a situation in which no real "search" has occurred. As stated by La Fave:

" * * * (i)t encompasses those circumstances in which an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area. This includes the case in which an officer discovers an object which has been left in an open field or similar nonprotected area. * * * " 1 La Fave, Search and Seizure, § 2.2, p. 242 (1978).

Because this kind of "plain view" involves no intrusion covered by the Fourth Amendment, the three requirements set forth in Coolidge need not be met. 1 La Fave, supra, at 243; see also, State v. Corbett, 15 Or.App. 470, 473-474, 516 P.2d 487 rev. den. (1974).

The test of whether an area is a "constitutionally protected" area of the type referred to by La Fave depends upon whether the defendant had a reasonable expectation of privacy in the area in question. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In his oft-quoted concurring opinion in Katz, Justice Harlan stated that the test to be applied has a two-fold requirement: the person must have an actual or subjective expectation of privacy and that expectation must be one that society is prepared to recognize as reasonable. Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516; see...