State v. Webb
| Decision Date | 25 July 1997 |
| Docket Number | No. 23091,23091 |
| Citation | 943 P.2d 52,130 Idaho 462 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Corey WEBB, Defendant-Appellant. . Boise, May 1997 Term |
| Court | Idaho Supreme Court |
Michael F. Donovan, Ketchum, for appellant.
Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, (argued), Boise, for respondent.
This is an appeal from a denial of a motion to suppress marijuana evidence taken from appellant's real property without a search warrant. We affirm.
This case involves issues related to a search and seizure at appellant Corey Webb's (Webb) real property in Gooding County, Idaho. Webb's property consists of a 20 acre parcel of rural land outside the Hagerman city limits. A fence line surrounded the entire 20 acres. The fence consisted of wooden posts with barbed wire strung between the posts; however, the fence was in poor condition. At many places along the fence line one could simply step Located on the southeast corner of the property was a well house, shop and trailer. Access to the shop and trailer was achieved by a driveway. A gate and a "no trespassing" sign were located by the road entrance to the trailer house. This was the only "no trespassing" sign located on the 20 acre parcel or around the perimeter of the property. There was a thick grove of Russian olive trees running along the entire eastern border of the property. Also running along the eastern border was a dirt berm, which obstructed the view of the property from the road.
over the fence wires lying on the ground. As of July 1995, Webb had put up new metal posts on two sides of the property, but he had still not strung wire on the posts.
A drainage ditch carrying run-off irrigation water from farms located south of the property entered the property at the southeast corner and angled in a northwesterly direction across the property to the north boundary. The ditch ran to the northeast of the area where the shop and trailer were located. A path led from the shop across the ditch and into the north edge of the marijuana garden. Both sides of the ditch were surrounded by Russian olive trees. Also located along the ditch was a small waterfall Webb created by damming part of the ditch, which Webb referred to as a "Zen garden" and which he used for meditation. The Zen garden and the marijuana garden were on opposite sides of the ditch.
In November 1993, Special Agent Jim Hopkins (Hopkins) of the Idaho Bureau of Narcotics, received an anonymous tip from someone claiming that he had come upon what he believed to be the remains of an old marijuana garden. From a description of the location, Hopkins and Gooding County Sheriff Jax drove to the property and entered it from the west. Although there were some fence posts in this area there was no wire on the posts. The officers then came to a site where they determined that marijuana had previously grown. There they saw plastic tubing, rigged irrigation tubing, old stalks of marijuana and buckets. The officers photographed the area and later determined from property records that the owner was Webb. At that time, Webb was not living on the property. The officers planned to return to the site the next spring during growing season.
In June 1994, Hopkins visited the property again with his supervisor. At this time Webb was still not living on the property. Entry was again from the west and the fence was in the same condition. The two observed marijuana growing in the same location. The officers were going to set up surveillance cameras at the grow site, but when they returned in August the marijuana had already been harvested. The officers planned to wait until the next year to return.
In July 1995, the Twin Falls County Sheriff's Office and the Gooding County Sheriff's Office set up a marijuana detection operation to check various suspected grow sites in the area, including Webb's property. On July 24, 1995, after flying over Webb's property in a National Guard helicopter and taking aerial photographs, Special Agent Robinson identified a marijuana garden growing among some olive trees on Webb's property. Later that day, all of the investigating officers met back at the Gooding Airport where it was decided that several officers would set up surveillance of the grow area, while other officers would meet with the prosecutor to discuss obtaining a search warrant. Webb had moved onto the property in May 1995.
The officers who returned to the property to set up surveillance drove down the county road that bordered the eastern side of Webb's property, walked up the berm, stepped over an old barbed wire fence which was lying on the ground in some places, and walked through some brush and olive trees adjacent to the road. As they entered the property from the county road, they could smell the distinct odor of growing marijuana. As the officers set up the surveillance of the garden, Webb entered the garden and proceeded to walk through the rows of marijuana plants, at which time he was arrested. The officers discovered a marijuana garden of 73 plants in an area of approximately 25 feet by 50 feet surrounded by Russian olive trees.
Webb was charged with trafficking in marijuana and manufacturing a controlled substance. Webb moved to suppress the evidence of marijuana which was denied. Webb thereafter entered a conditional plea of guilty to manufacturing a controlled substance, reserving his right to appeal the denial of his motion to suppress, and the State dismissed the trafficking charge. The district court imposed a unified sentence of five years with all five years fixed, but retained jurisdiction for 180 days. Execution of the sentence was stayed pending appeal. Webb appeals.
1. Whether the district court correctly found that the marijuana was not located within the curtilage of Webb's property for purposes of the Fourth Amendment to the United States Constitution.
2. Whether the district court correctly found that the marijuana was not located within the curtilage of Webb's property for purposes of art. I, § 17 of the Idaho Constitution.
3. Whether the district court correctly concluded that because the marijuana garden was not within the curtilage of Webb's property and was thus located in an open field, the search and seizure of the marijuana was constitutionally permissible under both the Idaho and United States Constitutions.
When this Court reviews an order granting or denying a motion to suppress evidence, it defers to the trial court's factual findings unless the findings are clearly erroneous. However, the Court exercises free review over the trial court's determination as to whether constitutional requirements have been met in light of the facts found. State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093, 1096 (1995); State v. Weber, 116 Idaho 449, 451-52, 776 P.2d 458, 460-61 (1989).
The Fourth Amendment to the United States Constitution preserves "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ..." This provision is designed to protect a person's expectation of privacy which society is prepared to recognize as reasonable. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984). In this regard, a warrantless search is per se unreasonable under the Fourth Amendment, subject to a few well established exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).
The United States Supreme Court has extended the Fourth Amendment's protection of a home against unreasonable searches and seizures to the curtilage. In Oliver v. United States, supra, the Court distinguished "open fields" from "curtilage," the land immediately surrounding and associated with the home, stating that the distinction "implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home." 466 U.S. at 180, 104 S.Ct. at 1742. The Court noted that at common law, curtilage was "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Id., (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). The Court held that the extent of the curtilage is determined by certain factors which bear upon whether a person reasonably may expect that the area in question should be treated as the home itself. Id. at 180, 104 S.Ct. at 1742.
In United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the Supreme Court set forth four factors to be considered in determining whether an area surrounding a home comes within the definition of curtilage for Fourth Amendment purposes. These factors are: (1) the proximity to the home of the area claimed to be curtilage In Dunn, the evidence (chemicals used to make controlled substances), was seized from a barn on a 198-acre ranch near Johnson City, Texas. The ranch was completely encircled by a perimeter fence and contained several interior barbed wire fences. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby greenhouse. Two barns were located approximately 50 yards from the fence. The front of the barn where the evidence was seized was enclosed by a wooden fence. Id. at 297, 107 S.Ct. at 1137-38.
(2) whether the area 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 by the resident to protect the area from the observation of people passing by. 480 U.S. at 301, 107 S.Ct. at 1139-40. The Court stated that it was
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