GARDENS
IN THE EYES of the legal system, all Cannabis gardens are not created
equal. The United States Supreme Court has held that some gardens deserve
more protection than others. Specifically, the constitutional protections
afforded a person' s Cannabis garden depend on whether the garden is located
inside a home; outside a home, but inside the home's curtilage; or outside
a home and outside the home's curtilage.
Those gardens located inside a home have the greatest
constitutional protection against searches by police officers. Those gardens
located outside a home, but within a home's cartilage, while in theory
entitled to the same protection as those inside a home, in practice receive
less protection. Lastly, a garden located outside a home, and outside
the home's cartilage, receives very little, if any, protection.
Marijuana Gardens in the Home
As noted above, a Cannabis garden located inside the four walls and beneath
the roof of a home is entitled to the same stringent constitutional protections
as every other item located in the home. Therefore, the law concerning
such gardens has been largely explained in the preceding chapter.
Marijuana Gardens inside the Curtilage of a Home
As mentioned in Chapter 7, the Supreme Court has interpreted the federal
constitution as providing maximum protection against police search not
only of a home itself, but also of that area termed the "curtilage"
of a home. Roughly speaking, a home's curtilage is the area that closely
surrounds the outside of the home and for which the average person expects
a high degree of privacy. If a court concludes that an area is within
the curtilage of a home, the police must have a search warrant (or an
exception to the warrant requirement) in order to search the area.
The Supreme Court has refused to create a "bright-line
rule," which would classify an area as "curtilage" if it
falls within a set distance from the home. However, the Court has formulated
a test for deciding what is, and what is not, included in a home's curtilage.
Under this test, the Court examines "whether the area harbors the
intimate activity associated with the sanctity of a man's home and the
privacies of life." The Court has spelled out four important factors
that help to define a home's curtilage. These are:
(1) The proximity of the area to the home
(2) Whether the area is included within an enclosure surrounding the home
(3) The nature of the uses to which the area is put
(4) The steps taken by the resident to protect the area from observation
by people passing by
An example of how the Court applies these criteria when ruling on a police
officer's warrant less search is provided by the case of Mr. Dunn. DBA
agents received information that a large quantity of chemicals used to
manufacture illegal drugs had been delivered to Mr. Dunn's ranch in a
truck.
The agents took aerial photographs of Mr. Dunn's
ranch and saw a truck parked outside a barn located approximately sixty
yards from his home. The agents also discovered from the photographs that
Mr. Dunn's ranch was quite a fortress. The photos revealed that the ranch
was completely encircled by a fence. In addition, there were a number
of interior barbed-wire fences, one of which encircled the home, but did
not encircle the barn. The front of the barn was blocked by an additional
wooden fence with waist-high locked gates.
One evening, several DBA agents without a search
warrant snuck up to Dunn's barn-disregarding every fence in their path-to
investigate the possibility that he was manufacturing illegal drugs. They
could hear a motor running in the barn and could smell a chemical associated
with illicit drug manufacturing. Based on these observations, the agents
obtained a search warrant for the barn that led to the seizure of drug-manufacturing
lab and the arrest of Mr. Dunn.
Mr. Dunn argued that the agents' initial search,
which brought them onto his property and up to the barn, was illegal because
they invaded the curtilage of his home without a warrant. The United States
Supreme Court rejected Dunn's argument, finding the barn was not inside
the curtilage of Dunn's home. The Court explained that the barn was a
substantial distance from the home (60 yards), and was not treated as
an adjunct of the home. Second, the barn was not within the fence that
surrounded the home and that marked off the area that was part of the
home. Third, the agents had information prior to their entry that the
barn was not used as part of the home, but rather as an exterior drug
lab. Lastly, the Court explained that Dunn did little to protect the barn
from observation by people standing outside the property. The Court noted
that the fences were all of the see-through variety, of the type used
to corral livestock, rather than the type of tall solid fence ordinarily
used to ensure privacy .Therefore, the Court concluded, the barn was not
inside the curtilage of Dunn's home and hence no warrant was required
Creating a Curtilage in the Eyes of a Court
Anyone desiring the increased protection given to a home's curtilage would
be wise to make use of the four criteria discussed in the preceding section.
If a court finds that a person's garden was within the curtilage of his
home, the court will be forced to grant the garden the increased protection
afforded by the Constitution. This means that the police cannot enter
the garden without a warrant unless one of the exceptions to the warrant
requirement applies.
In one case a sheriff observed Cannabis plants
growing in plain view next to a man's home. The area, although not fenced
off, was clearly within the curtilage of the man's home. Without getting
a warrant, the sheriff walked up to the plants and pulled them up. The
man was subsequently convicted of cultivating marijuana.
On appeal, however, the sheriff's warrant less
seizure of the plants was declared illegal. The appellate court explained
that the sheriff's plain-view observation of the Cannabis plants was entirely
legal and gave the sheriff probable cause. However, because the plants
were within the curtilage of the Nan’s home, the sheriff's act of
physically entering the curtilage without first Detaining a warrant was
illegal under the Constitution. Therefore, the court of appeal reversed
the man's conviction, holding that the illegally seized plants; would
have been excluded from evidence.
Increasing the privacy of a garden is a matter
of common sense. Anything that separates a garden from the rest of humanity
is a plus. To increase the chances hat a court will find the garden within
a home’s curtilage, the cases teach that the Lome and garden should
be surrounded by a large and impenetrable fence, one hat passers-by cannot
see under, through, or over. Additionally, the property: should be designed
to integrate, rather than separate, the garden and the home. All lateral
boundaries such as mounds, hedges, trees, and streams should be: employed
as blocking devices. A locked gate should block the driveway and all >there
entrances to the home. Mail should be delivered off site-for example,
to a >sot office box. If feasible, utility meter readings should be
taken by the owner o further increase privacy. "No Trespassing"
signs should be liberally placed around the perimeter of the property.
In one case, a police officer peered through a
knothole in a wooden fence and aw what he believed were Cannabis plants
growing in Patrick Lovelace's •backyard. He used his observations
to obtain a search warrant for the residence, n court; Patrick argued
that the officer's first view of his garden constituted an illegal search
because the officer unreasonably invaded the privacy of his urtilage by
peeking through the knothole. Patrick's attorney was able to get the officer
to admit in court that he could not see over or under the fence, and was
able o gain his view of the garden only by peering through a one-inch-wide
knothole, "he officer also testified that there were very few holes
in the fence. In an attempt creating a Curtilage in the Eyes of a Court
Anyone desiring the increased protection given to a home's curtilage would
be wise to make use of the four criteria discussed in the preceding section.
If a court finds that a person's garden was within the curtilage of his
home, the court will be forced to grant the garden the increased protection
afforded by the Constitution. This means that the police cannot enter
the garden without a warrant unless one of the exceptions to the warrant
requirement applies.
In one case a sheriff observed Cannabis plants
growing in plain view next to a man's home. The area, although not fenced
off, was clearly within the curtilage of the man's home. Without getting
a warrant, the sheriff walked up to the plants and pulled them up. The
man was subsequently convicted of cultivating marijuana.
On appeal, however, the sheriff's warrant less
seizure of the plants was declared illegal. The appellate court explained
that the sheriff's plain-view observation of the Cannabis plants was entirely
legal and gave the sheriff probable cause. However, because the plants
were within the curtilage of the man's home, the sheriff's act of physically
entering the curtilage without first obtaining a warrant was illegal under
the Constitution. Therefore, the court of appeal reversed the man's conviction,
holding that the illegally seized plants should have been excluded from
evidence.
Increasing the privacy of a garden is a matter
of common sense. Anything that separates a garden from the rest of humanity
is a plus. To increase the chances: hat a court will find the garden within
a home's curtilage, the cases teach that the ionic and garden should be
surrounded by a large and impenetrable fence, one: hat passers-by cannot
see under, through, or over. Additionally, the property should be designed
to integrate, rather than separate, the garden and the home. All lateral
boundaries such as mounds, hedges, trees, and streams should be employed
as blocking devices. A locked gate should block the driveway and all 3ther
entrances to the home. Mail should be delivered off site-for example,
to a 3ost office box. If feasible, utility meter readings should be taken
by the owner o further increase privacy. "No Trespassing" signs
should be liberally placed around the perimeter of the property.
In one case, a police officer peered through a
knothole in a wooden fence and; aw what he believed were Cannabis plants
growing in Patrick Lovelace's backyard. He used his observations to obtain
a search warrant for the residence, n court; Patrick argued that the officer's
first view of his garden constituted an illegal search because the officer
unreasonably invaded the privacy of his :urtilage by peeking through the
knothole. Patrick's attorney was able to get the officer to admit in court
that he could not see over or under the fence, and was able o gain his
view of the garden only by peering through a one-inch-wide knothole; the
officer also testified that there were very few holes in the fence. In
an attempt to counter Patrick's arguments, the prosecutor argued that
the Cannabis garden' was in plain view because the officer was on a public
sidewalk, and anyone could have looked through the knothole.
The court agreed with Patrick, ruling that the
officer's peeking was an unlawful warrant less search. The court based
its decision on the fact that the officer originally viewed the plants
by placing his face within one inch of the fence. There was no evidence
that pedestrians ordinarily got within one inch of the knothole to spy
into Patrick's backyard. Therefore, although the officer was legally on
public property when he looked through the knothole, the judge deemed
the officer's action an unreasonable and hence illegal invasion of Patrick's
privacy.
The cases make clear that a person must protect
his garden not only from people who may pass by at ground level, but also
from possible viewing from aboveground. In many cases, a person's failure
to protect his garden from the prying eyes of his neighbor's second-story
window has proven fatal. For example, in one case, police officers were
able to identify 77 Cannabis plants in the curtilage of a woman's backyard
by viewing the plants from a neighbor's second-story window. The court
held that although the garden was inside the curtilage of the gardener's
home and could not have been viewed in any other manner, the gardener
had no reasonable expectation of privacy, given that the plants could
be seen in plain view from her neighbor's window.
Likewise, the United States Supreme Court has held
that under certain circumstances a police officer's warrant less aerial
surveillance of a person's Cannabis plants, even if they are within the
curtilage of a home, violates no reasonable expectation of privacy and
hence is not a "search" within the meaning of the Fourth Amendment.
Successfully Constructed Curtilages
Mr. Depew was a practicing nudist and lived in a remote location in Idaho
so that he could enjoy his chosen lifestyle in privacy and without interference.
One day, officers heard from an informant who claimed that Mr. Depew was
growing Cannabis on his property. The officers ran Mr. Depew's name through
the police computer system and discovered that he had previously been
convicted of growing Cannabis. Based on this information (which they knew
was not yet sufficient to obtain a search warrant) one of the officers
in an unmarked car and wearing plain clothes drove out near Mr. Depew's
house and pretended to have car trouble. He began walking up to Mr. Depew's
house, but before he could get too far, Mr. Depew met him on the driveway
about fifty feet from the home. The officer chatted with Mr. Depew and
detected the aroma of growing Cannabis. The officer left without revealing
his identity and obtained a search warrant based on this evidence combined
with the informant's tip and Mr. Depew's police records. A search under
the warrant uncovered over 1000 Cannabis plants.
Mr. Depew argued that the officer's entry up the
driveway of his secluded house was an unlawful warrant less entry into
the curtilage of his home. The Court f Appeal for the Ninth Circuit agreed
with Depew and reversed his conviction.
The Ninth Circuit analyzed the previously mentioned
four factors used to determine whether or not an area is within the curtilage
of a home, concluding that /hen the officer walked up Depew' s secluded
and protected driveway, he entered n area that was clearly identifiable
as part of Depew' s home. The court explained lat Mr. Depew took efforts
to protect his privacy and to prevent observation of is home by outsiders.
Mr. Depew's home was not visible from the road due to long driveway and
a thick row of trees. The Ninth Circuit also noted that Depew ad posted
"No Trespassing" signs in an effort to protect the inner areas
of his land rom observation. In particular, the court also noted that
Mr. Depew had all his lail delivered to a post office box, so that even
postal workers would not enter is property. Additionally, Depew had arranged
with the utility company to lake his own meter readings, thereby assuring
that not even meter readers would ome onto his property.
When all these factors where considered, the Ninth
Circuit concluded that 'hen the officer smelled marijuana he was standing
illegally within the curtilage f Depew's home. Since the officer did not
have a warrant or Mr. Depew's onsent, his observations were obtained in
violation of the Fourth Amendment. !consequently, despite the recovery
of over 1000 Cannabis plants, Mr. Depew's conviction was reversed. (US.
v. Depew [9th Cir. Nov. 1993] 8 F 3d 1424.)
A federal district court in Florida ordered all
the Cannabis plants seized from imes Seidel's yard excluded from evidence
because the police entered the urtilage of Mr. Seidel's home without first
obtaining a search warrant. Police officers went to Mr. Seidel's home
after flying over in a helicopter and spotting 'hat they believed were
numerous Cannabis plants growing in his back yard, /hen they arrived at
his property, they found that trees and other almost penetrable foliage
surrounded Mr. Seidel's property, making it almost imposable for passersby
to look into his yard. In addition, the property was surrounded y a fence
on three sides, with the fourth boundary clearly marked by trees and lick
foliage. "No Trespassing" signs were posted around the perimeter
of the property, and the only gate onto the premises was always locked
and bore a sign inviting "Beep Horn and Wait."
When Mr. Seidel went to see who was beeping at
his gate, he was confronted y several police cars, armed police officers,
and a helicopter hovering overhead! /hen Mr. Seidel asked if the officers
had a search warrant they told him "If you can’t let us in,
we're coming in anyway." Under such coercion, Mr. Seidel unlocked
his gate and let the officers in. A large number of Cannabis plants were
incited in Mr. Seidel's backyard.
In a pretrial motion, Mr. Seidel argued that the officers' warrant less
entry of is property violated the federal constitution's guarantee against
unreasonable: arches and seizures. The government countered: (1) that
Mr. Seidel consented > the officers entry by opening the gate and hence
no warrant was required; and (2) that even if without Mr. Seidel's consent,
the officers had a right to enter the property under the "open fields"
doctrine discussed in the next section.
The court wasted no time finding that Mr. Seidel's "consent"
was invalid because it was not freely and voluntarily given. The court
pointed out that, faced with several police cars, a helicopter hovering
overhead, and an officer who said that if Mr. Seidel didn't let them in
they would come in anyway, Mr. Seidel's consent was coerced, and hence,
was not valid. With respect to the government's argument that the warrant
less entry was permissible because the property was not within the curtilage
of Mr. Seidel's home, the court disagreed, finding that the property invaded
by the officer's immediately surrounded Mr. Seidel's home, and that he
had a reasonable expectation of privacy in the area. The court also emphasized
that the Cannabis was growing very near to Mr. Seidel's residence: "The
police seized some plants directly behind defendant's home, while other
plants were grown in a greenhouse and outside, approximately ten to twenty
yards from the back of the house."
The court also pointed out that the entire perimeter
of Mr. Seidel's property was enclosed by either a fence or a natural boundary.
Finally the court explained, "The third factor in defendant's favor
... is the steps he took to protect his home from outside intrusion ....
Defendant kept his gate locked at all times. Any visitor would have to
honk to be let in by the defendant. No one could easily see onto defendant's
land and the public was intentionally excluded from access to the home
and property."
Based on the above analysis, the court concluded
that the plants were taken from an area within the curtilage of Mr. Seidel's
home. Since the seizure was not authorized by a warrant or valid consent,
all evidence had to be suppressed. (US v. Seidel [S.D. Fla.1992] 794 F.Sup.1098.)
Gardens Situated Outside a Home's Curtilage
The United States Supreme Court has held that any land outside of a home's
curtilage maintains no reasonable expectation of privacy, despite an owner's
attempt to keep the public out! This remarkable rule is known as the doctrine
of "open fields." The Supreme Court has defined an open field
as "any unoccupied or undeveloped area outside the curtilage. An
open field need be neither 'open' nor did a ‘field’ as those
terms are use in common speech." The Supreme Court first applied
the "open fields" doctrine to a marijuana case in 1984, when
it examined a police officer's warrant less search of land owned by Ray
Oliver.
In this case, the Supreme Court held that Ray Oliver
maintained no legitimate expectation of privacy in his Cannabis garden,
despite the fact that the garden was located on Mr. Oliver's property
in a highly secluded area bounded on all sides by woods, fences, and embankments
which prevented its observation from any point of public access. Additionally,
Mr. Oliver had posted "No Trespassing" signs around the perimeter
of his property. Similarly, in a case decided that same day, the Supreme
Court held that Richard Thornton had no reasonable expectation of privacy
for his Cannabis garden located in a secluded wooded area on his property
surrounded by a chicken-wire fence and posted with "No Trespassing"
signs.
The court reached these astounding decisions by reading the Constitution
extremely narrowly and finding that the Fourth Amendment's protection
for "persons, houses, papers, and effects" does not extend to
areas beyond the immediate surrounding of a home. In the Court's words,
"an individual may not legitimately demand privacy for activities
conducted out of doors in fields, except in the area immediately surrounding
the home." Even thickly wooded areas such as those hiding Mr. Oliver's
and Mr. Thorn ton's gardens can be considered "open fields"
and hence entirely unprotected by the Fourth Amendment.
In this remarkable opinion, the Supreme Court maintained
that it is impossible for an individual to establish a legitimate expectation
of privacy in an area of land outside of a home's curtilage. The Court
stated:
We reject the suggestion that steps taken to protect privacy established
that expectations of privacy in an open field are legitimate. It is true,
of course, that [Mr.] Oliver and [Mr.] Thornton, in order to conceal their
criminal activities, planted the marijuana upon secluded land and erected
fences and "No Trespassing" signs around the property. And it
may be that because of such precautions, few members of the public stumbled
upon the marijuana crops seized by the police. Neither of these suppositions
demonstrates, however, that the expectation of privacy was legitimate
in the sense required by the Fourth Amendment. The test of legitimacy
is not whether the individual chooses to conceal assertively "private"
activity. Rather, the correct inquiry is whether the government's intrusion
infringes upon the personal and societal values protected by the Fourth
Amendment. As we have explained, we find no basis for concluding that
a police inspection of open fields accomplishes such an infringement.
(US v. Oliver [1984] 466 US 170.)
In reaching its decision, the Supreme Court agreed
that the officers trespassed upon Mr. Oliver's and Mr. Thornton's property
in order to locate the Cannabis gardens. Even so, the Court held that
no warrant was needed because no Fourth Amendment protections applied.
In the words of one court, "the Fourth Amendment prohibits unreasonable
searches and seizures, not trespasses."
An Unsuccessful Curtilage
In a 1993 case decided by a federal court in Montana, Sheriff's deputies
"received information from a citizen informant who had observed what
the informant believed to be marijuana growing in a green house"
on John Van Damme's property. "The informant described the plants
seen as three to four feet in height with long, fan-shaped groups of leaves
that narrowed on the end. The informant asserted a familiarity with the
appearance of marijuana plants based on public service advertisements
on television and posters."
Some detectives were dispatched to determine if they could see anything
unusual. Although they confirmed the location of the property, they could
not see any Cannabis plants. The detectives continued their investigation.
"On September 9, 1992, Detective Lewis caused a National Guard helicopter
to fly over the Van Damme property for the purpose of photographing the
premises. The helicopter conducted two separate fly-over approximately
45 minutes apart." During these fly-overs, the helicopter, flew on
the outside perimeter of Van Damme' s property, never directly over his
home. The detective testified that the fly-over was conducted at an altitude
of over 500 feet.
"Detective Lewis observed the property through
the viewfinder of a camera with a 600mm lens and took several photographs.
He observed three plastic Quonset-style greenhouses enclosed within a
wooden perimeter fence. The greenhouse compound was not covered. The front
doors of all three greenhouses were open. No other buildings were within
the greenhouse compound. Through the open doors, Lewis observed marijuana
growing in the greenhouses."
In the middle of night, Detective Lewis and DBA
agent Williams, snuck over a barbed wire fence, and quietly entered Van
Damme's' property. They then scaled a five-foot high hog wire fence, and,
after walking another 100 feet, reached a 12 foot high wooden stockade
fence which surrounded the greenhouses. "Williams and Lewis were
able to see through the spaces between the boards in the stockade fence
and observed what they recognized as marijuana growing in the greenhouses."
The fence was about 200 feet from Van Damme's home.
Based upon the above evidence, the agents obtained
a search warrant for Van Damme's property. When the search warrant was
executed, 2,333 Cannabis plants were seized.
In court, Van Damme launched a series of attacks contesting the constitutionality
of the agents' various actions. First, he argued that the helicopter fly-overs
where unlawful warrant less searches. In support of this argument, he
presented the testimony of a photogrammetry expert who testified that
based on the photographs taken from the helicopter, the helicopter was
flying at between 210 and 310 feet, rather than above 500 feet as Detective
Lewis had claimed. Unfortunately, the expert's testimony was shot-down
by the court, which held that the accuracy of the method used by the expert
was unproved. As a consequence, the court accepted the truth of Detective
Lewis's claim that he flew above 500 feet, and there was no evidence that
the fly-over posed a potential hazard to arsons or property below. The
court also held that there was nothing unconstitutional about Detective
Lewis's use of a high-powered camera.
The court then rejected Van Damme's argument that
the green house was within the curtilage of his home. The court examined
the four curtilage factors, particularly noting that the green houses
where over 200 feet away from the home, and that the 12-foot high fence
enclosed only the greenhouses, thereby making the area "a distinct
portion of Van Damme's property, quite separate from the residence. Because
of the isolation of the greenhouse compound from the rest of the property,
the lack of nearby buildings or facilities, and the absence of any Indica
of activities commonly associated with domestic life, the investigating
officers had no reason to deem the greenhouse compound as part of defendant's
home."
Finally, employing preposterous standards, the court noted:
... Though the stockade fence presented a significant obstacle to casual
observation on the ground, Defendant did nothing to prevent observation
of the interior of the compound from the air. Defendant also did nothing
to prevent the viewing of the inside of the compound by someone on the
outside looking through the cracks between the boards of the fence. Additionally,
the doors of the greenhouses were open to exposing the plants growing
inside to observation and identification from the air and the ground.
Based on the above analysis, the court held that the greenhouses were
not within the curtilage of Van Damme's home.
Having found that the greenhouses were outside
the curtilage and therefore subject to the "open fields" doctrine,"
the court held that regardless of Van Damme's attempts to shield the greenhouses
from view, it was impossible to establish a reasonable expectation of
privacy in an open field. In the court's words:
Because the greenhouse compound was not within the curtilage but in the
open fields, defendant had no legitimate expectation of privacy concerning
the compound or that it would remain free from warrant less intrusion
by government officers. Therefore , the fact that the officers entered
into defendant' s property, traversed open fields, climbed over fences
in those open fields and stood in open fields while observing the greenhouses
through the stockade fence does not constitute a violation of defendant's
Fourth Amendment rights under the "open fields" doctrine. (U.S.
v. Van Damme [D. Mont. 1993] 823 F.Supp. 1552.)
Searching Your Home Based on Seeing Your Backyard
Garden
Generally speaking, if police officers discover that a person is growing
Cannabis in his backyard, the officers can use that information for a
search warrant authorizing them to search not only the person's backyard,
but also the inside of the person's home. An actual affidavit in one such
case stated:
From the public alleyway between Deluxe Cleaners and the residence at
116 Maynell, I was able to observe the backyard of 116 Maynell.... I noted
at the southwest corner of a garage and next to the fence and alleyway,
several marijuana plants numbering at least four, ranging from three to
five feet tall. These plants appear to have been well cared for and appear
to have been specifically planted in that location as there are no other
marijuana plants within the backyard. I noted that the ground around the
base of the plants was moist, with the plants appearing to have been watered.
I noted that these marijuana plants had the characteristics of the marijuana
plant in its growing state, being medium to dark green in color and having
sawtoothed-edge leaves. Being an expert on the identification of growing
marijuana plants, it is my opinion that the plants observed by your affiant
were, in fact, marijuana plants in their growing state.
As an experienced narcotics officer I can also
say that in the past on numerous occasions regarding the cultivation of
marijuana ... I have found amounts of marijuana plants inside of a residence
and outbuildings on the property being cured and manicured for the use
and sale of these plants. I can further say that marijuana grown by private
individuals is picked and commonly taken into residences and outbuildings
to be dried and manicured. I have further found that individuals involved
in the cultivation of marijuana plants keep inside of their residence
and outbuildings marijuana seeds. As an expert on the identification of
marijuana I can also state that marijuana is usually hung and dried out
of view of the public. Marijuana is also frequently manicured and packaged
for use and sale and this requires all types of implements and is also
generally done out of view of the public. For those reasons I believe
that there can be found inside of the residence at 116 Maynell . . . marijuana
and the implements used to cultivate and package marijuana for use or
sale.
Presented with such an affidavit, almost every
judge will find that a backyard Cannabis garden establishes probable cause
that marijuana will also be found inside the home. Consequently, a search
warrant issued on the basis of such an affidavit can legally permit the
officers to search the inside of the grower's home.
However, at least one court in California has held
that an officer's observation of a single Cannabis plant in a person's
backyard may not establish probable cause that marijuana will be found
inside the person's home. In this case, Officer Miller of the San Diego
Police Department received information that Mitchell Pellegrin was cultivating
Cannabis in his backyard. The officer investigated and saw in plain view
a single "three-foot marijuana plant growing next to a fence at the
rear of Pellegrin's residence." Based on his observations, Officer
Miller obtained a search warrant and searched Pellegrin's home. Inside,
he found some concentrated Cannabis.
The court held that the search warrant was invalid
because Officer Miller's observation of a single marijuana plant in Pellegrin's
backyard was insufficient to establish probable cause that marijuana could
be found inside Pellegrin's house. As the court pointed out, the single
plant could have been growing wild without Pellegrin's knowledge. Officer
Miller failed to state in his affidavit any facts indicating that the
plant was being "cultivated." The court ended its opinion by
stating, "the right of the people of the United States of America
to be secure in the privacy of their homes is upon too solid a foundation
to be undermined by what could well be a happenstance growing of one marijuana
plant in a yard." (People v. Pellegrin [1977] 78 CalAppJd 913.)
In contrast, courts have held that a handful of Cannabis plants observed
growing in pots in a person's backyard does establish probable cause that
additional evidence of marijuana use or cultivation will be found inside
the residence. As one court stated, "marijuana plants do not grow
in pots and planters by chance. When they are found growing in that manner,
it is reasonable to infer those who controlled and occupied the premises
have something to do with their planting, cultivation, or care."
Linking Remote Gardens to the Gardener
In a recent Minnesota case, state police officers discovered a booby trapped
178-plant Cannabis garden in a remote area. They placed the garden under
surveillance and three days later observed Mark Sedzinski enter the plot
and inspect the plants. The officers arrested Mr. Sedzinski and searched
his home after obtaining a search warrant based on seeing him enter the
garden and inspect the plants. How did the officers know that he wasn't
just an innocent hiker who haphazardly wandered into the garden? In the
man's home the officers found "small marijuana plants, a book entitled
"Marijuana's Grower Guide," two guns, a small scale, and florescent
lights. A woman who lived on the plot of land where the Cannabis was growing
identified a second man Neil Coyle whom she said occasionally accompanied
Mr. Sedzinski to the plot. The officers checked Mr. Sedzinski's telephone
records and found frequent calls between the two men. When the officers
searched Mr. Coyle's home they found "numerous small marijuana plants
under a timed lighting system, bags of processed marijuana, marijuana
residue, a digital scale, plant food, books containing information on
marijuana growing, three firearms, and photographs of Coyle displaying
marijuana. Inside his van they found rolling papers, a roach clip, and
three pitch forks...similar to those used to 'booby trap' the marijuana
plot." Not surprisingly, this was sufficient evidence to link the
men together as well as to the remote garden. Consequently, both men were
convicted of conspiracy to manufacture more than 100 marijuana plants
in violation of federal law (US. v. Coyle [8th Cir. 1993] 998 F.2d 548.)
Evidence of an Indoor Garden Is Insufficient For
a Search Warrant
Needless to say, many people enjoy the art of indoor gardening, raising
roses, bonsai trees, cacti, and all sorts of plants which the government
has not yet declared illegal. Recognizing the fact that indoor gardens
might be entirely innocuous courts have required some evidence that the
plant being raised is Cannabis prior to issuing a search warrant. Numerous
cases teach that without some evidence that the gardener is growing Cannabis
specifically, all the evidence in the world that the person merely has
an indoor garden is insufficient grounds for a search warrant.
In one 1993 case, for example, the search warrant
stated the following factors in an attempt to establish probable cause
that Arthur Russell was growing Cannabis in a shed on his property: (1)
an electric bill averaging around $150 a month, when people with houses
twice as large in the same neighborhood used only about $50 of electricity
per month; (2) the observation of a large vent fan on the shed wall, similar
to ones the officer had previously seen to cool sheds where marijuana
was growing; (3) the observation of a sprinkler on the roof of the shed,
which the officer believed had the effect of further cooling the shed;
(4) observation of bright light escaping through a crack in the shed wall
on evenings when the officer had reason to believe that no one was in
the shed; (5) Mr. Russell had arranged to read his own electric meter;
and (6) he kept an aggressive dog.
An Oregon court held that the above information was insufficient to establish
probable cause to believe that Mr. Russell was growing Cannabis, as opposed
to some other plant, in his shed. As the court observed: "Taking
the unchallenged information as a whole, a magistrate could, perhaps,
conjecture that defendant was growing something in his shed. However .
. . from that information alone, a reasonable magistrate could not infer
that defendant was probably growing marijuana." (State v. Russell
[Or. App. 1993] 857 P.2d 220.)
Police Fly-overs
Aerial surveillance by the police is becoming an increasingly common search
method. For example, in recent years in California, the state has implemented
a "Campaign against Marijuana Planting," known as CAMP for short.
CAMP's mode of operation is to use airplanes and helicopters to locate
Cannabis gardens. In fact, CAMP has even used high-altitude U2 planes
for detection and surveillance of marijuana crops! (A federal court approved
of the use of the U2 planes, but expressed distaste for such domestic
use of spy planes.) In its first two years of operation, CAMP seized hundreds
of thousands of pounds of Cannabis plants, valued at hundreds of millions
of dollars.
Currently, Federal Aviation Administration (FAA) regulations permit fixed-wing
aircraft to be flown as low as 1,000 feet while over congested areas,
and as low as 500 feet over uncontested areas. For helicopters, these
regulations are even more lenient. The regulations permit helicopters
to fly below the above altitudes if the operation is conducted without
hazard to person or property on the surface. Therefore, there is no set
minimum altitude for helicopters. In one case, however, a gardener was
arrested for cultivating two Cannabis plants after a police officer in
a helicopter identified the plants by hovering only 25 feet above them!
The court was outraged by the officer's action, and promptly declared
the search illegal.
In another case, Sheriff Jones in Florida received
an anonymous tip that a Mr. Riley was growing Cannabis on his property.
Jones drove by Riley's mobile home located on five acres of rural property.
Jones could see a greenhouse about fifteen feet behind the mobile home,
but was unable to tell what was growing inside it.
Jones boarded a helicopter and flew over Riley's
property. When he passed over the greenhouse, which was indisputably within
the curtilage of Riley's home, he observed that it was covered with corrugated
roofing panels, approximately 10 percent of which were missing. Jones
ordered the helicopter pilot to descend to approximately 400 feet above
the greenhouse. As he hovered above the gaps in the greenhouse roof, he
looked through the openings and saw some Cannabis plants. Jones quickly
returned to the station and wrote out an affidavit of probable cause to
obtain a search warrant. A judge signed the warrant and Riley's greenhouse
was searched, resulting in the seizure of some Cannabis plants and Riley's
arrest.
Riley argued all the way to the United States Supreme
Court that Officer Jones's fly-over was an illegal warrant less search
of his greenhouse, which was located within the curtilage of his home,
and that the subsequent warrant was therefore invalid. The case split
the Supreme Court. The five most conservative justices rejected Riley's
argument, concluding that Sheriff Jones's view from the helicopter was
not an unconstitutional search. However, they disagreed as to why the
aerial view was legal under the constitution.
Four of these justices held that the aerial view
was not a even "search." In their opinion, the fact that the
fly-over was permissible under the FA A regulations discussed above, was
sufficient to make it constitutional. In their words:
Riley no doubt intended and expected that his greenhouse would not be
open to public inspection, and the precautions he took protected against
ground-level observation. Because the sides and roof of his greenhouse
were left partially open, however, what was growing in the greenhouse
was subject to viewing from the air ... Any member of the public could
legally have been flying over Riley's property in a helicopter at the
altitude of 400 feet and could have observed Riley's greenhouse. The police
officer did no more.
They compared Riley's case to an earlier case in which police officers
spotted a person's Cannabis garden while flying at 1,000 feet. In that
case, the Supreme Court held that the fly-over was constitutional, stating:
In an age where private and commercial flight in the public airways is
routine, it is unreasonable for respondent to expect that his marijuana
plants were constitutionally protected from being observed with the naked
eye from an altitude of 1,000 feet. The Fourth Amendment simply does not
require the police traveling in the public airways at this altitude to
obtain a warrant in order to observe what is visible to the naked eye.
The fifth conservative justice, Justice O'Connor, agreed that Jones's
aerial surveillance was constitutional, but expressed concern that her
conservative brethren placed undue reliance on FA a regulations. In her
opinion," [t] he fact that a helicopter could conceivably observe
the curtilage at virtually any altitude or angle, without violating FAA
regulations, does not in itself mean that an individual has no reasonable
expectation of privacy from such observation." In her opinion, the
determining factor in fly-over cases is whether or not public aircraft
generally travel at such altitudes in the vicinity. If such air traffic
is relatively common, then a gardener surveilled by a police fly-over
could not have a reasonable expectation of privacy in his garden. Under
such circumstances, an officer's aerial observation would fall under the
constitutional plain-view rule. However, if low-level public fly-overs
were very uncommon in the garden's location, then the gardener would have
a reasonable expectation of privacy. Under such circumstances, an officer's
fly-over, even if within FAA guidelines, would then be an unconstitutional
violation of the gardener's privacy. Having set forth her reasoning, Justice
O'Connor then found that Riley failed to present any evidence that public
fly-overs above his greenhouse were rare. Having no evidence that public
fly-overs were uncommon. Justice O'Connor concurred with the plurality
that Sheriff Jones's aerial surveillance did not offend Riley's
Reasonable expectation of privacy, and hence did not violate the Fourth
Amendment.
Justice Brennan, along with three other justices, dissented. In the opinion
of these justices, the plurality forsook the traditional "reasonable
expectation of privacy" analysis in favor of total deference to FAA
regulations. The dissenting justices agreed with Justice O'Connor that
simply because an airborne police officer is in a place where he has a
legal right to be (flying within FAA regulations), it does not necessarily
follow that whatever he sees from that vantage point has been knowingly
exposed to public view. In Brennan's opinion, the conservative justices
were sacrificing the Fourth Amendment protections that safeguard the privacy
rights of all citizens in order to facilitate fighting the War on Drugs.
Justice Brennan wrote:
It is difficult to avoid the conclusion that the plurality has allowed
its analysis of Riley's expectation of privacy to be colored by its distaste
for the activity in which he was engaged. It is indeed easy to forget,
especially in view of current concern over drug trafficking, that the
scope of the Fourth Amendment's protection does not turn on whether the
activity disclosed by a search is illegal or innocuous. But we dismiss
this as a "drug case" only at the peril of our own liberties
. . .
If the Constitution does not protect Riley's marijuana
garden against such surveillance, it is hard to see how it will forbid
the Government from aerial spying on the activities of a law-abiding citizen
on her fully enclosed outdoor patio . . .
The issue in this case is, ultimately, "how
tightly the Fourth Amendment permits people to be driven back into the
recesses of their lives by the risk of surveillance." The Court today
approves warrant less helicopter searches from an altitude of 400feet....
I find considerable cause for concern in the fact that a plurality of
four justices would remove virtually all constitutional barriers to police
surveillance from the vantage point of helicopters. The Fourth Amendment
demands that we temper our efforts to apprehend criminals with a concern
for the impact on our fundamental liberties of the methods we use. I hope
it will be a matter of concern to my colleagues that the police-surveillance
methods they would sanction were among those described forty years ago
in George Orwell's dread vision of life in the 1980s ....reasonable expectation
of privacy, and hence did not violate the Fourth Amendment.
Justice Brennan, along with three other justices, dissented. In the opinion
of these justices, the plurality forsook the traditional "reasonable
expectation of privacy" analysis in favor of total deference to FAA
regulations. The dissenting justices agreed with Justice O'Connor that
simply because an airborne police officer is in a place where he has a
legal right to be (flying within FAA regulations), it does not necessarily
follow that whatever he sees from that vantage point has been knowingly
exposed to public view. In Brennan's opinion, the conservative justices
were sacrificing the Fourth Amendment protections that safeguard the privacy
rights of all citizens in order to facilitate fighting the War on Drugs.
Justice Brennan wrote:
It is difficult to avoid the conclusion that the plurality has allowed
its analysis of Riley's expectation of privacy to be colored by its distaste
for the activity in which he was engaged. It is indeed easy to forget,
especially in view of current concern over drug trafficking, that the
scope of the Fourth Amendment's protection does not turn on whether the
activity disclosed by a search is illegal or innocuous. But we dismiss
this as a "drug case" only at the peril of our own liberties
. . .
If the Constitution does not protect Riley's marijuana
garden against such surveillance, it is hard to see how it will forbid
the Government from aerial spying on the activities of a law-abiding citizen
on her fully enclosed outdoor patio ...
The issue in this case is, ultimately, "how
tightly the Fourth Amendment permits people to be driven back into the
recesses of their lives by the risk of surveillance." The Court today
approves warrant less helicopter searches from an altitude of 400 feet....
I find considerable cause for concern in the fact that a plurality of
four justices would remove virtually all constitutional barriers to police
surveillance from the vantage point of helicopters. The Fourth Amendment
demands that we temper our efforts to apprehend criminals with a concern
for the impact on our fundamental liberties of the methods we use. I hope
it will be a matter of concern to my colleagues that the police-surveillance
methods they would sanction were among those described forty years ago
in George Orwell's dread vision of life in the 1980s ..
Justice Brennan then went on to quote Orwell's
classic, Nineteen Eighty-Four:
The black-mustachio'd face gazed down from every commanding corner. There
was one on the house-front immediately opposite. BIG BROTHER IS WATCHING
YOU, the caption said ... In the far distance a helicopter skimmed down
between roofs, hovered for an instant like a. bluebottle, and darted away
again with a curving flight. It was the Police Patrol, snooping into people's
windows.
Brennan closed his opinion with the following comment:
Who can read this passage without a shudder, and without the instinctive
reaction that it depicts life in some country other than ours? I respectfully
dissent. (Florida v. Riley [1989] 109 S.Ct.693.)
To sum up, as a result of this case, the law with
respect to aerial surveillance by law enforcement is currently determined
by the reasoning of Justice O'Connor. While FAA guidelines are an important
factor, the constitutionality of a police officer's fly-over is decided
by whether or not public aircraft commonly fly at such altitudes at the
particular location surveilled. If a person' s garden is routinely exposed
to the view of passing public aircraft, a police officer's view from the
same flight path does not violate the gardener's reasonable expectation
of privacy, and is therefore considered constitutional. In contrast, if
a person's garden is located in an area that very rarely or never has
public aircraft flying overhead, a police officer's aerial surveillance
of the garden, even if within FAA regulations, violates the gardener's
reasonable expectation of privacy, and is therefore unconstitutional without
a warrant.
It is worth stressing that this rule is currently
in jeopardy because two of the four dissenting justices who agreed with
O'Connor' reasoning are no longer on the Court and have been replaced
by more conservative justices. Therefore, when the next fly-over case
comes before the Court, it is quite likely that a police officer's fly-over
will be deemed constitutional so long as it was conducted in compliance
with FAA regulations whether or not public aircraft fly at such altitudes
in the vicinity.
Currently, the Supreme Court of at least one state (California) has held
that although the United States Constitution may not provide much protection
against aerial observations of a person's curtilage, the state constitution
does.
In a well-reasoned opinion, the California Supreme
Court explained:
We were not persuaded that police officers who examine a residence from
the air are simply observing what is in "plain view" from a
lawful public vantage point. Such reasoning ignores the essential difference
between ground and aerial surveillance. One can take reasonable steps
to ensure his yard' s privacy from the street, sidewalk, or neighborhood,
and police on the ground may not broach such barriers to gain a view of
the enclosed area. But there is no practical defense against aerial spying,
and precious constitutional privacy rights would mean little if the government
could defeat them so easily.
Even if members of the public may casually see into his yard when a routine
flight happens over the property, we concluded, a householder does not
thereby consent to focus examination of the curtilage by airborne police
officers looking for evidence of crime. No law-enforcement interest justifies
such intensive warrant less government intrusion into a zone of heightened
constitutional privacy. (People v. Mayoff [1986] 42 Cal.3d 1302.)
Unfortunately, California is rather unique, in that it has a rule that
only evidence obtained in violation of the federal constitution is excluded.
Therefore, despite the California court's holding that the police performed
an illegal search by spying on a curtilage garden from the air, there
was, and is, no remedy, since the action only violated the state constitution
but not the federal constitution.
The DEA's Domestic Marijuana Eradication Program
The DEA's Domestic Cannabis Eradication/Suppression Program, initiated
about fifteen years ago, provides financial and technical assistance to
state and local agencies trying to stamp out the evil weed. By the year
1990, every state was participating in the program. In 1993, the National
Guard spent almost half a million flight hours looking for Cannabis plants.
In 1992, the program led to the eradication of
over 48,000 Cannabis gardens and 272 million cultivated Cannabis plants.
In 1990, the program led to the destruction of over 188 million ditchweed
plants, seventy-five percent of which were found in Nebraska and Indiana.
Of the total number of cultivated Cannabis plants eradicated, the government
reports that 2 million were choice sinsemilla, seventy percent of which
was eradicated in Missouri, Hawaii and Tennessee.
At first look, this program would seem to run afoul
of the federal law that makes it illegal to use the Armed Forces to execute
laws within the USA. This federal law, commonly known as the Posse Comitatus
Act, makes it a crime (punishable by up to two years in federal prison
and a $10,000 fine) to willfully use "any part of the Army or Air
Force as a posse comitatus or otherwise to execute the laws."
Why doesn't the Posse Comitatus Act bar the National
Guard from assisting in state marijuana eradication programs? Courts which
have examined this question have pointed to a separate federal law which
expressly authorizes the use of the National Guard in state run "drug
interdiction and counter-drug activities." The courts have ruled
that under this law, the National Guard is authorized to • assist
state anti-marijuana programs so long as it is not acting in "federal
service."
In fact, the National Guard is not only used in
general marijuana eradication
Programs, but it is also used in specific raids on suspected Cannabis
cultivators.
For example, in Pennsylvania a squad of National Guardsmen assisted in
staking
Out and shriveling a farm suspected of Cannabis cultivation. The guardsmen
Took up positions in the woods all around the farm and even set up a command
post
In a nearby church. The court upheld the use of the National Guard for
such •
Activities on the theory that the Guard was not acting in federal service
but rather}
Was acting to assist Pennsylvania in its "local drug eradication
and interdiction ;
Operations." Therefore, ruled the court, the Posse Comitatus Act
was not violated..
(US v. Banish [3rd dr. 1993] 5 F3d 20.)
Marijuana Gardens on Public Property
In recent years, it has become increasingly common for people to grow
Cannabis on public lands. The legal advantage of such gardening is that
it becomes more difficult for the prosecutor to link the plants to a specific
person. Therefore, although the police often locate these secluded Cannabis
gardens and destroy the plants, they often are unable to prosecute the
grower. As a result, the grower loses the plants, but is only rarely subjected
to an arrest or search. The other legal advantage to growing Cannabis
on public property is that it provides some additional protection against
asset forfeiture. First, the government may be unable to figure out who
grew the plants and therefore unable to seize the grower's assets. Second,
even if the police do catch the grower, the grower's own land is , not
subject to forfeiture, since it was not used to facilitate the crime.
The legal 1 disadvantage of gardening on public property is that the gardener
has absolutely \ no right to attack a warrant less search of the garden,
and any person who is convicted of cultivating marijuana on federal property
is subject to a mandatory ' $500,000 fine, in addition to the punishment
imposed under the sentencing guidelines. (21 USC 841 [5].)
Michael Weiss and his son Jeffrey had established a 30-plant Cannabis
} garden on secluded public property in the town of Albany, Vermont. One
day,! Unbeknownst to the Weiss', a state trooper spotted the garden during
an aerial ; observation of the area. Ten days later the trooper and another
officer went to the area on foot and verified that the plants were Cannabis.
The officers searched the area but didn't find anyone.
About one hour later, the trooper returned to the
garden with further troopers to uproot the Cannabis plants. When they
walked into the garden area, they discovered Michael and Jeffrey Weiss
tending the plants. They also found several items that had not been there
an hour earlier, including two black plastic garbage bags, a plastic garbage
can containing manicured marijuana, a nylon bag with shoulder straps,
some pruning shears, and a loaded shotgun. The troopers arrested Jeffrey
and his dad. Charges against Jeffrey were subsequently dropped, but his
dad was prosecuted. Based on the items found at the garden site, the officers
suspected that more evidence could be found at the Weiss home, for which
the troopers sought and obtained a search warrant. Inside, the officers
found additional incriminating evidence.
Michael Weiss argued that the search warrant was
invalid because it failed to state facts showing probable cause that incriminating
evidence would be found at his home. The Vermont Supreme Court disagreed.
The court explained that the items found at the public garden site had
not been there an hour earlier and that they were the sort of items commonly
stored at a household. In the court's words, "the presence of the
defendants at the marijuana patch with common household items created
a link between the residence and the site sufficient for the court to
lawfully authorize the search warrant." Therefore, the court concluded
that the search warrant was valid.
High-Tech Surveillance of Government Land
Just how far the government will go to catch guerrilla Cannabis growers
on federal land is demonstrated by a federal case from Florida. Officer
John Ray of the United States Forest Service was hiking in the Ouachita
National Forest in Scott County, Arkansas, when he discovered 172 cultivated
Cannabis plants approximately ten yards off an old logging road. After
discovering the plants, Officer Ray "installed a surveillance video
camera that was activated by motion and body heat." When Ray checked
the camera 10 days later, he found it had recorded the image of a single
unidentified person. Ray continued checking the camera and after about
one month he replaced it with a 35mm still camera in an attempt to obtain
clearer photos. After monitoring this camera setup for a total of about
two months, Ray had acquired at least 19 photographs of a man tending
the Cannabis plants.
In March 1992, Bradley Rose was arrested on the
basis of photographs and the fact that his residence was relatively close
to the Cannabis garden. Mr. Rose was convicted of manufacturing marijuana
in violation of federal law, and sentenced to sixty-three months in federal
prison. (U.S. v. Rose [8th Cir. 1993] 8 F.3d 7.)
|
