Gravley v. State , 181 Ga. App. 400 ( 1986 )

Birdsong, Presiding Judge.

Appellants were convicted in separate trials of violating the Georgia Controlled Substances Act by manufacturing and possessing marijuana. We have consolidated their appeals in this opinion. They each urge error in the denial of their motion to suppress based upon an asserted illegal search and seizure. Held:

At the hearing on the motion, evidence disclosed that two deputy sheriffs for Cherokee County received a radio message from the chief deputy sheriff directing them to go to appellant Gravley’s residence and check out a tip that Gravley was growing marijuana in a garden at his residence. It does not appear that the officers knew the physical location of the garden on Gravley’s property, thus they went initially seeking Gravley to talk to him about the tip. When the deputies arrived at Gravley’s residence, appellant Botts was in the front yard working on a car. Botts told one of the officers that Gravley was asleep but she would go inside to get him. They observed Gravley looking at them through a window. Then Botts returned and said Gravley would be out in a few minutes. Gravley did not come out even after ten or fifteen minutes whereupon the officers asked some children playing in the yard if they would go in and ask Gravley to step outside. A young girl went in the house but did not return. She was seen coming out the back door and again was asked if Gravley was in the house. The girl indicated she thought Gravley had gone to the barn to feed the horses. The officer then walked toward the barn to find and talk to Gravley. As he approached the barn, he did not see Gravley but could see through the open passageway through the barn to what ultimately proved to be a vegetable garden, where he saw someone moving rapidly from place to place behind the barn. The officer walked through the barn to the garden and saw Gravley pulling up marijuana plants and throwing the plants over the fence. Gravley was then arrested. It was later determined that Botts and Gravley lived together and she was arrested and charged with the same offense as a joint possessor.

The physical layout of this residence was composed of the residence (a double-wide trailer), approached by a driveway running off a dirt road leading from a paved road; a car shed behind the trailer, a barn behind the car shed and a garden behind the barn. Appellants urge, and for purposes of this opinion we agree, that these surroundings were lying within what classically has been a part of the “curtilage” and under other circumstances might have been protected from a warrantless search and seizure.

An analysis of Fourth Amendment protection against unlawful searches and seizures must begin with the Amendment: “[t]he right of the people to be secure in their persons, houses, papers and effects. . . .” Obviously, the Amendment does not include by definition “the curtilage.” However, as recognized in numerous decisions of the courts of this state, the curtilage has been brought within the ambit of the Amendment protecting against unreasonable or warrantless searches. At common law the curtilage included all that space of ground and buildings thereon which usually is enclosed within the general fence surrounding a principal dwelling house and outbuildings, and yard closely adjoining to the dwelling house. Black’s Law Dictionary, Rev. Fourth ed., p. 46. Our courts have included a garden by definition as being within the curtilage. Landers v. State, 250 Ga. 808, 809 (301 SE2d 633).

First, it is observed that including generically a garden within the curtilage appears to be a recognition of an earlier held view that the Fourth Amendment protection against unreasonable searches and seizures was rooted in a protection of the property constituting a man’s defendable domicile, his own personal castle. Thus, outbuildings including tool sheds, barns, garages and the like which were built adjacent to a house were considered to be such an integral part of a man’s home that it figuratively was considered as lying within the “fenced” or “walled” area that traditionally a man called home and from which all could be excluded and denied access by the fence or wall. Likewise and legitimately a garden within that same personal area (i.e., the curtilage) was afforded the same protection. Several decades ago, this protection relating to the right to be secure in the “house” was packaged in the “exclusionary rule” adopted by the Supreme Court of the United States and made the law of the land.

During the recent past, much dissatisfaction has been expressed judicially as well as by the laity to the strictness of this exclusionary rule. The very same court that originally laid down the definition and set forth its application as a property concept began a process of relaxation. The Supreme Court in Hester v. United States, 265 U. S. 57 (44 SC 445, 68 LE 898) held that the special protection accorded by the Fourth Amendment to citizens in their persons, houses, papers, and effects does not extend to an open field. Thus an “open” field was held not to be an “effect.” Stated otherwise, an “open field” traditionally did not lay within the fenced or walled area and thus was not a part of the “house.” Later the Supreme Court determined in Katz v. United States, 389 U. S. 347 (88 SC 507, 19 LE2d 576) that the touchstone of the Fourth Amendment is whether a person has a constitutionally protected reasonable expectation of privacy and not exclusively limited to a property concept inherent in a house or its intimately related defensible grounds within the wall or fence. In the case of Oliver v. United States, 466 U. S. 170 (104 SC 1735, 80 LE2d 214), the court reasoned that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. Thus, the court, while recognizing and protecting the concept of curtilage (apparently in geophysical terms; i.e., was the protected object within or without the protected area), the court at the same time further weakened the constituents of the curtilage. It was concluded that there is no societal interest in protecting the privacy of those activities, such as the cultivation of crops (and ostensibly including vegetables and flowers) that occur in open fields, i.e., activities that may be seen by the casual observer. The Supreme Court observed in Oliver, supra at p. 180, fn. 11: “An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech. For example ... a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” Thus, as a practical matter, such areas are open to view and accessible to the public (even to a trespasser) and the police in ways that a home, an office, or a commercial structure would not be. Oliver, supra at p. 179.

Thus it is concluded the protection as originally afforded to the curtilage was a concept grounded in the protection of property. As previously indicated, at common law, the curtilage was that fenced area which projects to an area outside but immediately adjacent to the home, the intimate activity associated with the sanctity of a man’s home and the privacies of life. See Boyd v. United States, 116 U. S. 616, 630 (6 SC 524, 29 LE 746). As an extended part of the home itself, it was thus afforded Fourth Amendment protection.

However, as hereinbefore stated, we believe that within the Fourth Amendment, the concept of protection of property has evolved (through repeated interpretation) and now looks to the reference of factors that indicate whether an individual reasonably may expect an area immediately adjacent to the home will remain private, i.e., a reasonable expectation of privacy. See, e.g., United States v. Knotts, 460 U. S. 276, 280-281 (103 SC 1081, 75 LE2d 55); United States v. Van Dyke, 643 F2d 992, 993-994. As a result, we conclude no rational person can have a reasonable expectation of privacy in an open area such as a yard or a garden even in the curtilage where the contents of the yard or garden casually are open to public view. See United States v. Pruitt, 464 F2d 494. Smith v. Maryland, 442 U. S. 735, 740 (99 SC 2577, 61 LE2d 220) held: “Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded. . . . This inquiry . . . normally embraces two discreet questions. [1] . . . whether the individual. . . has exhibited an ‘actual (subjective) expectation of privacy.’ 289 U. S. at 361 . . . the individual has shown that ‘he seeks to preserve (something) as private.’ Id. at 351. The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as reasonable’. ... Id. at 361.”

As an example, it is suggested that one who plants marijuana among his petunias in the front yard (and clearly in the curtilage) has no reasonable expectation of privacy when in fact the garden is in plain view to passersby on the street and sidewalk. Likewise, one who deposits contraband (or grows marijuana) in his backyard even adjacent to his home in such a position that a passerby who can see through or over a fence and thus readily can view the contraband likewise has no reasonable expectation of privacy. See State v. Lyons, 167 Ga. App. 747 (307 SE2d 285). Today the protection afforded to the “curtilage” is no more or no less than that reasonable expectation of privacy to which the home resident reasonably expects to be afforded his secluded activities within the home. Oliver, supra at p. 182, fn. 12. However reasonable a landowner’s expectation of privacy may be, those expectations cannot convert grounds (open to casual view) into a “house” or an “effect.” Oliver, supra at p. 184. While it may be true that appellants subjectively may have intended the marijuana growing in the garden behind the barn to remain private, the circumstances of the planting in the open and subject to view render that expectation of privacy non-justifiable. Smith, supra at p. 740.

In substance then, we conclude that where one exposes to open view that which is contraband, he forfeits his right to any reasonable expectation of privacy. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, supra at p. 351. In such a case, the question of “lying within the curtilage” should be limited to the protection afforded the home dweller and the property making up the home (i.e., barns, outbuildings, and enclosed structures, the contents of which normally are not exposed and thus reasonably can be expected to remain private) and not extended to grounds exposed to view by a deliberate course of action whereby the dweller offers the contraband to the view of those who have the opportunity to view. The mere fact, for instance, that the homeowner makes every conscious effort to seclude and protect the property by placing, “No Trespass” signs, enclosing with a fence, or secluding in a wooded area, will not shelter criminal activity nor protect that activity under the Fourth Amendment. Oliver, supra at p. 182, fn. 13. This manifestly is true for notwithstanding such effort to protect the area, so long as it is not hidden from sight by an enclosure, the public and police may survey lands from the air. For such reasons, the asserted expectation of privacy of contraband exposed in an area open to view is not an expectation that our society recognizes as reasonable. Oliver, supra at p. 170.

While it is true that some areas (i.e., fields) are protected by the laws of trespass, those laws protect rights which are not necessarily included within the rights protected by the Fourth Amendment, for trespass laws extend to instances where the exercise of the right to exclude vindicates no legitimate privacy interest. Oliver, supra at p. 183, fn. 15.

Earlier cases such as Landers v. State, 250 Ga. 808, 809, supra; State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) and Norman v. State, 134 Ga. App. 767, 768 (1) (216 SE2d 644) are cases decided prior to Oliver v. United States, supra, or are clearly distinguishable (indeed Landers v. State other than giving a general definition of “curtilage” is consistent with the position herein adopted, i.e., that property hidden from open view, even though not in the curtilage, is subject to a Fourth Amendment protection). We seek to point out that the state of the law has changed from a bare statement that protection is afforded because a “garden is a part of the curtilage” to a question of whether one who exposes contraband to open view even in the curtilage still may claim a reasonable expectation of privacy. In the three cases, the necessity of determining the scope of the curtilage (including a garden) was made because of the proximity of the stash of contraband to the home itself. In Norman, supra, the contraband was out of sight in a truck (i.e., protected from view) but the truck was within 250 feet of the house and 100 feet of the barn. That made the parking site “within the curtilage.” In the Landers case, supra, the contraband was out of sight in appellants’ van, but though parked close to a residence was not within the curtilage but afforded protection notwithstanding. In the Nichols case, supra, though apparently this court concluded that while perhaps a roto-tiller lying on the appellant’s yard adjacent to his trailer might be in the curtilage (a point conceded in the trial court by the State) that rule had no application for the roto-tiller, even if close to the trailer, was “in plain view” and thus even if a “seizure” occurred, there was no search.

In this case, the open ground (or “garden” as appellants chose to label it) lay behind the barn. Pretermitting its location within the curtilage, for all the facts show the police could have approached the “garden” without ever passing the house, the garage or the barn (i.e., the curtilage) simply by coming from the opposite direction. Nevertheless, regardless of its location, it is clear that appellants deliberately chose to grow the marijuana in a non-enclosed area (i.e., outside any kind of structure) and thus open to plain view to those having an opportunity to approach or pass by the field (or garden). The facts reasonably support the trial court’s conclusion that the deputies were present on the premises looking for Gravley and not conducting a search for marijuana. Upon seeing suspicious activity in plain sight, the officers had not only the right but the duty to investigate the unusual activity in progress within their view. See Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612); Stiggers v. State, 151 Ga. App. 546, 547 (1) (260 SE2d 413). Under such circumstances, appellants waived any reasonable expectation of privacy and forsook any protection otherwise afforded by the Fourth Amendment. For the same reason, appellants cannot invoke any such protection simply by claiming the “garden” was a part of the curtilage as that expression is interpreted by the current state of the law of protection against unreasonable searches and seizures. As earlier observed herein, in a concurring opinion in Oliver v. United States, Justice White observed: “However reasonable a landowner’s expectations of privacy may be, those expectations cannot convert a field into a ‘house’ or an ‘effect.’ ” Accordingly, the judgment of the trial court is affirmed.

Judgments affirmed.

McMurray, P. J., and Pope, J., concur. Deen, P. J., Carley and Beasley, JJ., concur specially. Banke, C. J., Sognier and Benham, JJ., dissent.