State v. Hall

State v. Hall  (97-160); 168 Vt. 327; 719 A.2d 435

[Filed 11-Sep-1998]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.
 

                            No. 97-160


State of Vermont                             Supreme Court

                                             On Appeal from
    v.                                       District Court of Vermont,
                                             Unit No. 3, Caledonia Circuit

Timothy J. Hall                              March Term, 1998



Walter M. Morris, Jr., J.

       Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer,
  Deputy State's Attorney, St. Johnsbury, for Plaintiff-Appellee.

       David J. Williams of Sleigh & Williams, St. Johnsbury, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.  Defendant Timothy Hall appeals the Caledonia District
  Court's denial of his motion to suppress evidence of drug paraphernalia
  seized in his house pursuant to a search warrant.  Defendant argues the
  warrant was improperly granted because:  (1) to obtain the information
  underlying the warrant, a police officer impermissibly walked on
  defendant's property to confirm an informant's tip; (2) the officer did not
  find any marijuana plants to corroborate the tip, but failed to include
  this exculpatory information in his affidavit in support of the warrant
  application; and (3) the affidavit failed to establish a nexus between the
  marijuana growing on defendant's lawn and his residence.  We affirm.

       On September 16, 1996, a confidential informant contacted the Hardwick
  Police Department to report that defendant was cultivating marijuana in his
  yard.  That evening, when a Hardwick police officer contacted the
  informant, he told the officer that defendant had a healthy marijuana plant
  growing in his yard and forty to fifty marijuana plants growing along

 

  the edge of the yard.  He also stated he had seen a bong in defendant's
  house.

       On September 17, 1996, two officers and a State game warden searched
  for the large clump of forty to fifty marijuana plants in the woods behind
  defendant's residence.  To search this area they used a network of
  well-marked and well-used trails.  They observed no signs prohibiting
  entry.  Two of the trails terminated at defendant's property.  After
  searching unsuccessfully for the plants, the officer concluded that they
  were looking in the wrong place.

       On the following day, the officer returned to the property with the
  informant, who immediately led the officer to a vantage point five to ten
  feet from defendant's lawn in the woods behind defendant's house.  No
  fences obstructed the officer's view or limited access to defendant's yard,
  nor were any "no trespassing" signs posted.  From this vantage point, the
  officer observed a marijuana plant growing on defendant's lawn.  The plant
  appeared to be well-tended and had been tied down with fishing line. 
  Before they could locate any other plants, the officer and the informant
  left the area to avoid being seen by someone driving up defendant's
  driveway.  While driving back to the police station along the public
  highway, which passes approximately twenty to twenty-five yards from
  defendant's yard, the officer saw the marijuana plant from the road.

       Later that day, the officer prepared a search warrant affidavit.  In
  his affidavit, the officer did not mention the first search in which he
  failed to locate any marijuana plants.  On September 18, 1996, a warrant
  was issued.  On September 20, 1996, officers searched defendant's residence
  and found three marijuana plants in his yard as well as marijuana and drug
  paraphernalia in his home.  Defendant was charged with unlawful possession
  of marijuana in violation of 18 V.S.A. § 4230(a)(2).  He moved to suppress
  the evidence seized under authority of the search warrant.  The trial court
  denied the motion, finding that the officer and informant did not enter the
  curtilage of defendant's property.  Defendant appeals this ruling.

  


                                     I.


       Defendant contends that the officer violated both the Fourth Amendment
  of the United States Constitution and Article 11 of Chapter I of the
  Vermont Constitution by initially entering the property without a warrant. 
  The Fourth Amendment has been interpreted to permit warrantless entry onto
  "open fields," or areas outside of the curtilage where there is no
  reasonable expectation of privacy.  See Oliver v. United States, 466 U.S. 170, 177 (1984). Article 11 of the Vermont Constitution, however, provides
  greater protection than does the Fourth Amendment of the United States
  Constitution.  See State v. Kirchoff, 156 Vt. 1, 4, 587 A.2d 988, 991
  (1991).  Article 11 recognizes an expectation of privacy in open fields as
  long as that privacy is sought.  See id. at 10, 587 A.2d  at 994; State v.
  Rogers, 161 Vt. 236, 246, 638 A.2d 569, 575 (1993) (noting that landowner
  must take steps to establish expectation of privacy in open fields). 
  Fencing or signs must be posted so that a reasonable person would conclude
  the land is intended to remain private.  See Kirchoff, 156 Vt. at 10, 587 A.2d  at 994. Since no signs were posted, nor were other methods used, to
  indicate that defendant sought to exclude the public from the woods
  adjacent to his yard, we conclude that defendant had no expectation of
  privacy from a walk-on search in the wooded area behind his house.

       Defendant maintains, however, that the officer was within the
  curtilage while viewing the marijuana plant.  The curtilage, or area
  immediately adjacent to a house, is afforded the same protection from
  unreasonable search and seizure as the house.  See United States v. Dunn,
  480 U.S. 294, 301 (1987).  To determine whether an area falls within the
  curtilage, courts must analyze whether the area in question is so
  "intimately tied to the home itself that it should be placed under the
  home's 'umbrella.'"  Id.  Courts use four factors in making this
  determination. First, how close is the area in question to the home? 
  Second, is the area in question included in an enclosure?  Third, what are
  the uses to which the area is put?  Finally, what steps have been taken to
  protect the area from observation by people passing by?  See id.; see also
  State v. Rogers, 161 Vt. at 241-42, 638 A.2d  at 572 (using Dunn factors to
  determine that garden is

 

  within curtilage of house).

       The definition of a particular home's curtilage is a mixed question of
  law and fact.  See Rogers, 161 Vt. at 241, 638 A.2d  at 572.  This Court
  will defer to the trial court's findings of fact; conclusions of law
  supported by those findings will be affirmed unless clearly erroneous. See
  In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993).

       Concerning the first factor, defendant stresses that the officer was
  standing five to ten feet from the lawn in an area just inside the woods,
  which was in closer proximity to defendant's home than the garden was to
  the defendant's home in Rogers.  See 161 Vt. at 241, 638 A.2d  at 572
  (giving deference to trial court finding garden was within curtilage).  In
  Rogers, officers viewed the garden from the surrounding woods,
  approximately 150 feet away from the defendant's residence.  See id.  We
  held in that case no warrant was needed to view the curtilage from an
  unimproved area where no expectation of privacy exists.  Id. at 249.  The
  distance from a house to the area in question, while a useful factor in the
  analysis, is by no means dispositive since the three other factors must
  also be considered.  Although, in the instant case, the officer was closer
  to the house than were the officers in Rogers, application of the other
  three factors convinces us the officer was not within the curtilage of
  defendant's home.

       The second factor--whether the area is within an enclosure--weighs in
  favor of finding that the officer was not within the curtilage of
  defendant's home.  The only fencing behind defendant's house was
  ornamental, and stood behind the house on the lawn.  The wooded area where
  the officer stood as well as the marijuana that he found was located beyond
  the ornamental fence.  Although we have noted other courts' holdings that a
  natural boundary, such as woods, may define the curtilage, id. at 242, 638
  A.2d at ___, we have also held that, taken alone, a natural boundary does
  not create a reasonable expectation of privacy.  See id. at 247, 638 A.2d 
  at 576.

       The Court is likewise not persuaded that the third factor -- uses to
  which the area is put -- favors defendant.  Although the trees were
  trimmed to make it easier to walk in the area

 

  behind defendant's yard, there is no evidence the area was used for
  activities such as picnics, barbecues or other "privacies of life."  Id. at
  241, 638 A.2d  at 572.  The Court therefore concludes the officer's vantage
  point was not within the curtilage.

       The final factor that courts consider, whether steps have been taken
  to protect the area from observation, also supports the conclusion that the
  officer did not enter the curtilage of defendant's home.  Defendant did not
  erect any fences or walls that would obstruct the view of his yard.  In
  fact, by removing low branches from trees in the five-to-ten-foot wooded
  border around defendant's yard, he actually enhanced visibility of his yard
  from the wooded area. Although the wooded border and yard are not visible
  from the thicker outlying woods, as noted above, this Court has held that
  natural boundaries do not create a per se expectation of privacy from
  "examination by a person located in the woods."  Id. at 243, 638 A.2d  at
  573.  Without actually entering the curtilage, hikers, berry pickers, and
  other members of the public using the network of paths behind defendant's
  house could have easily seen defendant's yard and house from the wooded
  border.  Defendant's failure to post the area behind his house, either his
  yard or the wooded border, reduced his expectation of privacy.

       Given that defendant made no affirmative effort to prevent entry into
  the wooded area bordering his yard, we hold that he had no reasonable
  expectation of privacy regarding the spot from which the officer viewed the
  marijuana plant.  Moreover, having located the plant from outside the
  curtilage in the woods, the officer then was able to view the plant when he
  returned to the public road.

                                     II.

       We cannot conclude that the officer's failure to include in the
  application for the warrant information concerning his futile first attempt
  on September 17th amounts to an attempt to exclude exculpatory information
  in the search warrant affidavit in violation of Franks v. Delaware, 438 U.S. 154 (1978).  The failure of the first search did not pertain to the
  informant's reliability because the officers did not look in the place
  the informant described.

 

  Defendant's attempt to analogize the instant case to State v. Dupaw, 134
  Vt. 451, 365 A.2d 967 (1976), is unpersuasive.  In that case, information
  provided by an informant was utterly devoid of factual support.  Id. at
  452, 365 A.2d  at 968.  The informant's factual assertions here, however,
  were substantiated by the officer upon returning to the area with the
  informant.  When the informant personally showed the officer where to look,
  the search revealed what the informant said it would.  Furthermore, the
  officer's first hand knowledge of the marijuana growing in defendant's yard
  was lawfully obtained information, which by itself was sufficient to
  establish probable cause to issue a warrant.  State v. Moran, 141 Vt. 10,
  16, 444 A.2d 879, 882 (1982).

       It is true that officers are expected to include all salient facts of
  an investigation in the warrant affidavit.  Yet, here the omitted
  information did not negate or discredit the validity of the officer's sworn
  statements, which as noted above were sufficient to establish probable
  cause.

                                    III.

       Finally, we address defendant's argument that there is no nexus
  between the plant in the yard and the house.  Defendant argues the
  officer's observation of a marijuana plant on his lawn is insufficient to
  establish probable cause that evidence of a crime would be found within the
  home.  Defendant stresses the absence of cultivation materials near the
  plant that would create the "necessary nexus between the house and the
  planting site."  State v. Weiss, 155 Vt. 558, 563, 587 A.2d 73, 75 (1990).

       The very fact that a plant appears cultivated, as opposed to untended,
  supports an inference that materials for the manufacture and cultivation of
  marijuana exist at the residence. See id.  The marijuana plant was not
  simply growing in an untended part of defendant's property.  It was in
  defendant's back yard near his house.  The lawn around the plant was mowed,
  and the plant was tied with fishing line.  This indicates, not only
  knowledge of the illegal plant's existence, but also that it was carefully
  cultivated.  Combined with the informant's information about the
  paraphernalia in defendant's house, there was ample reason to believe that

 

  evidence of a crime existed inside the house.  We find no error.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice