Brown v. State , 5 Ark. App. 181 ( 1982 )

Donald L. Corbin, Judge,

dissenting. The majority has chosen to overrule the Arkansas Supreme Court’s decision of Sanders v. State, 264 Ark. 433, 752 S.W.2d 397 (1978).

Admittedly, the small patch of marijuana initially “discovered” by Mr. Lepel would fall within the doctrine of “open field” search and not require a search warrant. This would support a conviction.

However, the evidence obtained by the search of the garden should have been quashed. The evidence in the case at bar seems to be a familiar repeat of the Sanders facts. Here, the sheriff described the garden to be “right down below the house.” The garden was close enough to hear farm animals and talk with a person in the garden. There was a well-worn path between the house, pond and garden. The area was generally fenced. The garden had a high fence with vines and growth on it. The sheriff saw some of the vegetables in the garden with the marijuana. Phillips had her washing machine on the lower bench where there were two outbuildings and a mobile home. All of these facts support the need for a valid search warrant to search the curtilage and outbuildings. I just don’t believe that because this tract of land was within a national forest that Phillips’ and Brown’s Fourth Amendment rights to privacy should be violated. I would reverse and remand for a new trial excluding any evidence related to the large garden.