Dale v. State ( 2002 )

SUMMARY OPINION

JOHNSON, Viece-Presgiding Judge.

T1 Appellant, Kenneth Earl Dale, was tried by jury in Okfuskee County District Court, Case No. CF-1999-118, for Count 1: Unlawful Cultivation of Marijuana (63 O.S.Supp.1999, § 2-509) and Count 2: Use of a Firearm in the Commission of a Felony (21 O.S.Supp.1999, § 1287). The jury found Appellant guilty on both counts and recommended punishment of 55 years imprisonment and a $50,000 fine on Count 1, and eight years imprisonment on Count 2. The trial court sentenced Appellant accordingly on May 15, 2000, and Appellant timely perfected this appeal.

T2 Appellant raises the following propositions of error:

1. Appellant's Fourth Amendment rights were violated when the law enforcement officers came onto his property through a locked gate without a warrant; any evidence seized or statements obtained following this illegal entry should be suppressed as "fruit of the poisonous tree."

2. The use of a firearm during the commission of a felony is not supported by competent evidence.

3. The sentence imposed upon Appellant is excessive; the sentence should be modified and the fine vacated.

T3 After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, tran-seripts, and briefs of the parties, we find merit to Proposition 1 of Appellant's brief and reverse for the reasons set forth below.

T4 The charges in this case stem from a warrantless entry onto Appellant's rural residential property by Drug Task Force agents. The agents approached Appellant's property after aerial surveillance suggested that marijuana was being cultivated in a patch not far from the residence. Appellant's property was enclosed by a fence, and the gravel driveway to the residence was blocked by a locked gate.

15 Approximately eight agents entered the property, unannounced, by climbing over the locked gate. At least two of the agents went directly toward the residence itself, where they were met by Appellant. The agents were dressed in military-style fatigues and boots. They were armed with pistols, though at least one agent, and perhaps more, had a semi-automatic rifle. All the while, a police helicopter surveyed the scene, descended to a low altitude as the ground-based agents approached Appellant, and landed nearby after contact was made.

116 The agents who approached Appellant told him they were aware of marijuana being grown on the property, and Appellant made some sort of affirmative reply. The agents then asked for permission to search, and Appellant complied. At some point during this exchange, Appellant was told that if he did not consent to a search, the agents would seek a search warrant. During the resulting search, the agents found not only the patch of marijuana, but various paraphernalia asso-clated with its cultivation, as well as a firearm in Appellant's home.

17 In Proposition 1. Appellant claims, as he did below, that his consent to the search of his property was not voluntarily given.¹ We begin by restating the fundamental rule that searches conducted outside the judicial process, without prior approval by a magistrate, are presumptively unreasonable under both the Fourth Amendment to the United States Constitution, and Article 2, § 30 of the Oklahoma Constitution. The exceptions to this rule are "jealously and carefully drawn," and there must be a showing by those who seek exemption that the exigencies of the situation made immediate action imperative. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (citations omitted); Castleberry v. State, 1984 OK CR 30, ¶¶ 6-7, 678 P.2d 720, 723.

18 We conclude that the agents' entry of Appellant's property, accompanied by neither a warrant, consent, nor some exigent cireumstance, by climbing over the locked driveway gate, which was part of a secure perimeter fence, and proceeding between the two residential structures in order to confront Appellant was an unlawful entry onto the curtilage of the home,² and as such, violated Appellant's constitutional protection from unreasonable intrusion.

19 The agents had ample time to seek a search warrant based on their aerial observation of the suspected marijuana the day before, which itself was entirely lawful.³ The Court finds no reason for a warrantless search. When law enforcement has this much time to obtain a search warrant, one should and must be obtained. The State presented no evidence of any exigent cireum-stances that would show a warrantless entry was necessary. See Fite v. State, 1993 OK CR 58, ¶ 17, 873 P.2d 293, 296-97.

110 Because the agents' entry was unlawful, any incriminating statements made by Appellant during this encounter (such as his apparent admission that marijuana was growing on the property) were obtained unlawfully. Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 2262-63, 45 L.Ed.2d 416 (1975); Lowry v. State, 1986 OK CR 177, ¶¶ 6-7, 729 P.2d 511, 512-13. Furthermore, considering the totality of cireum-stances, including (1) the unlawful entry itself, (2) the number of agents participating, (8) their manner of dress, (4) the fact that they were armed not only with pistols but also with semi-automatic weaponry, and (5) the presence of the police helicopter immediately overhead during the encounter, we are convinced that Appellant's consent to the search of the premises was not voluntary in the constitutional sense of the term. Aschneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973); Jennings v. State, 1987 OK CR 219, ¶ 16, 744 P.2d 212, 215. Consequently, the agents' search of the marijuana patch, based on Appellant's involuntary consent, was unlawful, and the fruits thereof must be suppressed.

111 Our disposition of the case renders Propositions 2 and 3 moot.

DECISION

The Judgment and Sentence of the district court is REVERSED WITH INSTRUCTIONS TO DISMISS.

CHAPEL and STRUBHAR, JJ., concur. LILE, J., specially concurs. LUMPKIN, P.J., dissents.

1 . Appellant also asserts that he had a reasonable expectation of privacy in the marijuana patch because it was within the curtilage of the home. On appeal, the State maintains that Appellant's consent rendered the search valid, and does not discuss whether the marijuana patch was within the curtilage. We therefore assume, for purposes of this appeal, that the area was within the curtilage. Herren v. State, 75 Okl.Cr. 251, 130 P.2d 325, 330 (1942) (issues raised on appeal by the defendant, and supported by legal authority, which are not addressed by the State in its response may be taken as conceded); see also Howard v. State, 1991 OK CR 76, ¶ 2, 815 P.2d 679, 681-82.

2 . Police may obviously enter upon areas of residential property which are intended as public access points; they may, for example, walk up a driveway or walkway to the front porch of a typical urban home in order to contact the occupant, because that is what the area is intended for. In this case, however, the driveway which led to Appellant's rural home was blocked by a locked gate, clearly indicating that no uninvited visitors were allowed beyond that point. The agents not only crossed that barrier, but continued to approach until they were situated between the two residential structures, for the sole purpose of obtaining consent to search. Cf. State v. Ridgway, 57 Wash.App. 915, 790 P.2d 1263 (1990) (police entry of curtilage to rural premises was illegal, and evidence obtained from that vantage point should have been suppressed, where driveway was blocked by a closed gate and house was not visible from the roadway).

3 . Florida v. Riley, 488 U.S. 445, 448-452, 109 S.Ct. 693, 695-97, 102 L.Ed.2d 835 (1989) (police officer's observation of residential greenhouse interior, from the vantage point of a helicopter 400 feet in the air, was not a "search" for which a warrant was required).