Banney Eugene Moore v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Barrow * and Coleman
Argued at Salem, Virginia
BANNEY EUGENE MOORE
v. Record No. 1649-93-3 MEMORANDUM OPINION** BY
JUDGE BERNARD G. BARROW
COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF DICKENSON COUNTY
Donald A. McGlothlin, Jr., Judge
C. David Whaley (Anthony G. Spencer; Morchower,
Luxton and Whaley, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this appeal of a conviction for manufacturing marijuana,
we hold that (1) the trial court erred in admitting a political
advertisement advocating the legalization of marijuana because it
did not tend to prove that seven months earlier the defendant
grew marijuana; and (2) the trial court properly admitted
evidence seized from the open fields around the defendant's
house.
A month after a state trooper discovered marijuana growing
on the defendant's property, he returned to the property,
*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the opinion prior to his
death.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
accompanied by a game warden and a sheriff, to "eradicate" the
marijuana.
Upon reaching the defendant's property, they found a locked
gate across the road, with a "No Trespassing" sign. The road led
to a barn approximately fifty yards away and a house about
seventy-five yards beyond the barn. An electric wire ran between
the house and barn. The land between the gate and the house was
open and the surrounding area was heavily wooded.
From inside the gate, the defendant approached and asked
what the officers were doing. The officers replied that they had
reports of marijuana, asked his name and who owned the property.
The defendant told them the property on their side of the gate
belonged to the gas company, but on the defendant's side belonged
to him. He stated that they had "better have a search warrant to
come onto his property."
The trooper went into a wooded area across a fence, looking
for the plot he had seen before. He found another plot first,
then located the known plot. Following a well-worn path, he
located about a dozen more areas where marijuana was growing.
The path ended close to the house. He then discovered plots one
hundred fifty feet north of the house, one located twenty-five
feet from the west side of the barn, and another one on a path
thirty feet behind the barn. The marijuana was not visible from
the roadway. He also found plants growing in pots and cups,
along with other gardening supplies.
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While an investigator went to get a search warrant, officers
took the gate off the hinges, drove onto the property, and seized
all the marijuana plants they had discovered. The investigator
returned with a search warrant for the house and the shed where
they found more evidence, including seeds and plants. The
officers seized a total of 171 marijuana plants. This evidence
was admitted at trial over the defendant's objection.
Also over the defendant's objection, the trial court
admitted testimony and evidence that, subsequent to being
charged, the defendant had placed a political advertisement in a
local newspaper advocating the legalization of marijuana.
THE POLITICAL ADVERTISEMENT
The trial court erred in admitting evidence, because it was
irrelevant, that seven months after his arrest, the defendant
placed a political advertisement in a local newspaper advocating
legalization of marijuana. A defendant's out-of-court statement
is admissible as a party admission only if relevant. See
Alatishe v. Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82
(1991) (party admission admissible if relevant); Hogan v.
Commonwealth, 5 Va. App. 36, 43, 360 S.E.2d 371, 375 (1987)
(irrelevant evidence inadmissible).
The "admissions" contained in the advertisement do not tend
to prove that seven months earlier, the defendant grew marijuana.
At most, the defendant's statement, "Pot smokers don't deserve
to be in prison. How are we criminals?", admits marijuana use,
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not that he might have grown or manufactured it. Further, the
advertisement concerning "pot smokers" does not tend to prove
knowledge and intent to grow and distribute marijuana. None of
this evidence tends to prove that the defendant grew marijuana
seven months before making the statement.
Further, the defendant's placing this advertisement does not
tend to show "consciousness of guilt." See Hope v. Commonwealth,
10 Va. App. 381, 386, 392 S.E.2d 830, 834 (1990) (flight or
efforts to conceal guilt admissible). Nor is the statement
admissible as character evidence. See Gravely v. Commonwealth,
13 Va. App. 560, 564, 414 S.E.2d 190, 192-93 (1992) (character
evidence of conduct occurring after offense inadmissible);
Ginger v. Commonwealth, 137 Va. 811, 814-15, 120 S.E. 151, 152
(1923). Therefore, we hold that the advertisement was
inadmissible.
Because the evidence of the political advertisement may have
been used by the jury to infer that the defendant was the person
growing the marijuana or may have used the evidence when they
recommended punishment, we hold that the error was not harmless.
For this reason, we reverse and remand for a new trial. See
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc).
THE SEARCH AND SEIZURE
We hold that the trial court properly admitted into evidence
the marijuana plants and other evidence seized from the open
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fields near the defendant's home.
The Fourth Amendment provides the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." The curtilage -- the "area
around the home to which the activity of home life extends" -- is
considered part of the home itself for Fourth Amendment purposes.
Oliver v. United States, 466 U.S. 170, 182 n.12 (1984).
Traditionally defined in terms of the factors used to determine
the defendant's reasonable expectation of privacy, the curtilage
is the "space necessary and convenient, habitually used for
family purposes and the carrying on of domestic employment; the
yard, garden or field which is near to and used in connection
with the dwelling . . . whether enclosed with an inner fence or
not." Wellford v. Commonwealth, 227 Va. 297, 302-03, 315 S.E.2d
235, 238 (1984).
"Open fields," on the other hand, are not subject to Fourth
Amendment protection. Id.; see United States v. Dunn, 480 U.S.
294 (1987). An open field may be "neither 'open' nor a 'field.'"
Oliver, 466 U.S. at 180, n.11. "[S]teps taken to protect
privacy," such as gates and "no trespassing" signs, do not
"establish that expectations of privacy in an open field are
legitimate." Id. at 183. Because property rights are not
determinative of Fourth Amendment protection, "the law of
trespass [has] little or no relevance to the applicability of the
Fourth Amendment." Id. at 183-84.
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In this case, the evidence supported a finding that the area
searched was an "open field," and, therefore, that the police
conduct did not implicate the Fourth Amendment. The areas in
which the plots of marijuana were discovered were not part of the
curtilage of the house, but were in "open fields." Most of the
plots were located on the opposite side of the road from the
house, in a wooded area surrounding the clearing in which the
house stood. The remaining plots were in the clearing, at least
fifty yards from the house. The connection of an electrical wire
from the house to the barn seventy-five yards away did not extend
the curtilage to include the barn. Further, neither the gate,
nor the "No Trespassing" sign, nor even the defendant's
statements to the officers that they were trespassing, created an
expectation of privacy sufficient to trigger Fourth Amendment
protection. Id. 1
For the foregoing reasons, the judgment of conviction is
reversed, and the matter remanded for a new trial, should the
Commonwealth so elect.
Reversed and remanded.
1
Contra State v. Barnett, 703 P.2d 680, 684 (Haw. 1985)
(holding Oliver inapplicable where owner of land told officers to
leave the property). We are troubled by the common law criminal
trespass element of a threatened breach of peace where, as in
this case, the owner is actually present and directs the officers
not to trespass. However, we are bound by Oliver's conclusion
that property rights and trespass have "little or no relevance"
in Fourth Amendment analysis.
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