Thomas v. State

• Decision Date: 04 March 1992
• Docket Number: No. A91A2154,A91A2154
• Citation: 417 S.E.2d 353,203 Ga.App. 529
• Parties: THOMAS v. The STATE.
• Court: Georgia Court of Appeals

Page 353

417 S.E.2d 353

203 Ga.App. 529

THOMAS v. The STATE.

No. A91A2154.

Court of Appeals of Georgia.

March 4, 1992.

Reconsideration Denied March 24, 1992.

Certiorari Denied June 4, 1992.

Maloy & Jenkins, W. Bruce Maloy, Atlanta, for appellant.

Garry T. Moss, Dist. Atty. and Gregory A. Hicks, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Appellant appeals his convictions of unlawful manufacture of marijuana and unlawful possession of marijuana with intent to distribute. OCGA § 16-13-30(b). He enumerates error on the trial court's denial of his motion to suppress marijuana found during a search.

Lieutenant Gene Beck, a helicopter pilot for the Georgia State Patrol, who is a member of a task force engaged in marijuana identification and eradication, testified that on July 6, 1990, he was engaged in a routine fly-by over rural land in Cherokee County at 400-500 feet, which was his normal cruising altitude pursuant to FAA waivers. He had been alerted to marijuana in the area and had just left a patch nearby so was still piloting his helicopter at an altitude of 100 to 150 feet pursuant to FAA waivers allowing him to fly at ground zero. He spotted a large sunken greenhouse in a heavily wooded area.

The greenhouse was located on a triangular tract of land containing approximately two acres and owned by appellant. The apex of the triangle, which points in a westerly direction, is formed by the convergence of two county roads. A driveway to a mobile home in which appellant resided ran from the road forming the southerly side of the tract at an angle of approximately 45 degrees. A jeep was parked in the driveway.

The greenhouse was located approximately 30 yards east of the single-wide mobile home. It was surrounded by trees and could not be seen from either road, although a pathway partially obscured by tree branches led from the greenhouse to the road forming the northerly border. Narrow pathways led from the area of the mobile home to the greenhouse. Otherwise the wooded area separated the two. A jeep and pickup truck were on the premises. On his first pass over the greenhouse, Lieutenant Beck could see heavy green plants in the greenhouse but could not identify them. He passed over the greenhouse a second time at the same low altitude of 100 to 150 feet, and on the outside of the property he could see several trays containing suspected marijuana plants.

Beck relayed this information to two Cherokee County deputy sheriffs who were on the ground in the vicinity of the property, and he instructed them to knock on the door of the mobile home to determine if anyone was home and to obtain permission to go onto the property. No one came to the door when the officers knocked, although the officers could hear a television and some other noises inside the mobile home. Beck then instructed the deputies to go to the greenhouse and see if anyone was there. They went to the greenhouse and heard classical music coming from a radio in the greenhouse but no one was inside. They verified that there was what appeared to be marijuana growing in trays on the outside of the greenhouse, and they saw several hundred marijuana plants inside the greenhouse.

Cherokee County law enforcement authorities subsequently obtained a warrant authorizing a search of the mobile home, as well as its curtilage and out-buildings, for marijuana. Three hundred eighty-five marijuana plants weighing over 40 pounds were found in and around the greenhouse. Paper bags containing dried and cultivated marijuana were found in the trailer. One of the deputies executing the warrant testified that the marijuana plants outside of the greenhouse were eight to nine inches tall and were in two little trays.

In his motion to suppress, appellant asserted that the law enforcement agents' entry into the greenhouse was illegal, in that it was a warrantless search without probable cause and unsupported by any recognized exception to the warrant requirement, and therefore any subsequent seizure of evidence was tainted "fruit of the poisoned tree."

The trial court ruled that the greenhouse did not lie within the curtilage of appellant's residence, and the growing of marijuana in the greenhouse constituted an agricultural use in open fields, in that "the only thing that is different about it is, it has a frame of plastic over it. If you took the frame and plastic off, it'd just be like rows of corn." For these reasons, the trial court concluded that there was no intrusion into an area protected by the Fourth Amendment.

The first issue raised by appellant on appeal is that the search warrant was invalid because it was predicated on information obtained via an illegal search. His reasoning is that the greenhouse was within the curtilage of his residence and not in open fields, and that its aerial surveillance at an altitude from which the marijuana outside of the greenhouse could be viewed constituted an intrusion into an area as to which he had a reasonable expectation of privacy as protected by the Fourth Amendment to the United States Constitution and Art. I, Sec. I, Par. XIII of the Ga. Const. of 1983. He also claims that the warrant for the search on the ground was obtained after or while that search was in progress, also resulting in the ground search's invalidity.

1. Under principles of federalism in terms of the relationship between the state and federal constitutions, we would properly start first with an analysis of appellant's state constitutional claim. Massachusetts v. Upton, 466 U.S. 727, 735, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), Stephens, J., concurring opinion. He did raise it below, as required, in his motion to suppress. However, the court ruled only on the Fourth Amendment basis, and there is no state constitutional ruling for us to review. It is appellant's obligation to pursue the grounds he raises and obtain a ruling on them in the trial court, if he wishes to obtain appellate review. Davis v. Trusthouse Forte Hotels Worldwide, 195 Ga.App. 768, 769(3), 395 S.E.2d 235 (1990); Allen v. Montgomery Ward, etc., 186 Ga.App. 337, 339(2), 367 S.E.2d 120 (1988).

Moreover, his brief in this regard does not make a separate and independent state constitutional argument. He relies primarily on federal constitutional caselaw. The two provisions are not wholly coextensive in their construction. See Wells v. State, 180 Ga.App. 133, 135, 348 S.E.2d 681 (1986), Beasley, J., concurring specially. See also Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). Walker v. Whittle, 83 Ga.App. 445, 449(1), 64 S.E.2d 87 (1951), illustrates an independent analysis. The court applied the state constitution, drawing on appellate construction of it, and rejected a federal constitutional basis for appellant's claim because it was then understood that the Fourth Amendment did not cover state action. The more recent case of Landers v. State, 250 Ga. 808, 301 S.E.2d 633 (1983), also appears to have been decided on independent state grounds. The state constitutional provision has its own origin, history and meaning.

The result of all of this is that we analyze appellant's enumerations only against the Fourth Amendment.

2. "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

With respect to the aerial surveillance, the question is whether the greenhouse and the area immediately adjacent to it were within the curtilage. Appellant does not submit that the airspace into which the helicopter was flown and from which the officer saw the suspected marijuana plants outside the greenhouse was itself within the curtilage.

Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), involved a helicopter surveillance, at an altitude of 400 feet, of the interior of a residential backyard greenhouse. The court regarded the greenhouse as being within the curtilage. This was a crucial factor in the court's analysis because of Fourth Amendment coverage of the curtilage. A majority of the Court concluded that, because Riley did not have a reasonable expectation that the greenhouse was protected from such observation from a helicopter flying at a lawful and noninterfering altitude which was not "sufficiently rare in this country," it was not a "search" subject to the Fourth Amendment. Id. at 451, 109 S.Ct. at 696. Justice O'Connor, who concurred with four members of the court in the judgment, gave greater significance than did the plurality to whether "the public can generally be expected to travel over residential backyards at an altitude of 400 feet." She seems to have considered the lawfulness of the altitude only as a starting point. Her conclusion is that "public use of altitudes lower than that--particularly public observations from helicopters circling over the curtilage of a home--may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations." The court did not address whether the airspace in which the helicopter was flying as being within or without the curtilage and, since appellant does not suggest it, neither do we address such a question.

The Fourth Amendment protects "houses" by its terms, but the "courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. [Cits.]" Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). The curtilage is "the land immediately surrounding and associated with the home ... the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' Boyd...