State v. Weigand, No. 15056

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 169 W.Va. 739,289 S.E.2d 508
• Docket Number: No. 15056
• Decision Date: 26 March 1982
• Parties: STATE of West Virginia v. David WEIGAND.

Page 508

289 S.E.2d 508 169 W.Va. 739 STATE of West Virginia
v.
David WEIGAND. No. 15056. Supreme Court of Appeals of West Virginia. March 26, 1982.

Syllabus by the Court

1. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution--subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative." Syllabus Point 1, State v. Moore, W.Va., 272 S.E.2d 804 (1980).

2. Where under the "open fields" exception law enforcement officials from a public highway observe contraband or evidence of a crime that is plainly visible on property which carries no indicia that the owner or possessor thereof had a reasonable expectation of privacy the same may be seized without the necessity of first obtaining a warrant.

James C. Recht, Aurora, Colo., for appellant.

Chauncey H. Browning, Atty. Gen. and Richard S. Glaser, Jr., Asst. Atty. Gen. and Fredrick S. Wilkerson, Law Clerk, Charleston, for appellee.

MILLER, Chief Justice:

This is an appeal by David Weigand from an order of the Circuit Court of Lewis County sentencing him to six months in the county jail and fining him $1000 for [169 W.Va. 740] possession of marijuana. The defendant's only claim of error is that the trial court erred in admitting into evidence the marijuana plants seized from his property without a search warrant. We conclude that the evidence

Page 509

was properly seized under the "open fields" doctrine and affirm his conviction.

On August 28, 1978, two Lewis County deputy sheriffs, while patrolling Lewis County Route 46, spotted what they believed to be marijuana growing in a field or garden about 150 to 300 feet from the defendant's house. The plants were visible from the road. On returning to the county seat, they reported their discovery to the Sheriff. The next day the Sheriff surveyed from the road the area in question and concluded that the plants were marijuana. He then returned to the county jail where he assembled all available deputies. Without obtaining a warrant, he proceeded to the defendant's house, arrested him and seized a number of marijuana plants from the property.

In Syllabus Point 1 of State v. Moore, W.Va., 272 S.E.2d 804 (1980), we set out this rule which was taken from our earlier case of State v. Duvernoy, 156 W.Va. 578, 583, 195 S.E.2d 631, 634-35 (1973), which in turn cited Coolridge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971):

"Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment and Article III, Section 6 of the West Virginia Constitution--subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative."

The origin of the "open fields" doctrine was Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), where the United States Supreme Court sanctioned a [169 W.Va. 741] warrantless seizure ¹ of a jug containing illegal liquor. A revenue agent observed the defendant outside of his father's house handing a bottle to a person who was believed to be a customer for bootleg whiskey. The defendant became alarmed and ran across an open field. As he ran he dropped a jug which was later examined by the revenue agent. The jug proved to contain bootleg whiskey. Justice Holmes speaking for the Court stated:

"[T]he special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226." 265 U.S. at 59, 44 S.Ct. at 446, 68 L.Ed. at 900.

Following Hester many courts held that open fields were not constitutionally protected under the Fourth Amendment provisions and these decisions dealt with defining what constituted an "open field." Over the years nearly any area not falling within the curtilage of a dwelling ² was deemed to be an "open field." The fact that [169 W.Va. 742] an area was not acutally a field or...