State v. Wert

550 S.W.2d 1, 1977 Tenn. Crim. App. LEXIS 261

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 6, 1977
• Status: Published

Opinions

OPINION

WALKER, Presiding Judge.

We granted the state’s petition for certio-rari to determine whether or not the trial judge abused his discretion in suppressing the evidence obtained by a search of the appellee’s premises without a warrant. We hold that he did not and dismiss the petition for certiorari.

The appellee, Donald Edward Wert, was in possession of and living on a 50-acre farm in Knox County which was enclosed by a fence with the exception of about 400 feet on the eastern side along Clapps Chapel Road. That area of the farm is bounded by woods and to its west is a creek. In addition to the house, on the farm there were a barn, garden plot, tobacco field, corn field, hay field and other wooded areas. Nearby, but not on the premises, there were four houses and a church along Clapps Chapel Road.

The evidence was in dispute as to whether or not on the date of the entry there were four or five no-trespassing signs on the eastern side of the unfenced wooded area facing the road. Exhibits in the record show these signs which the appellee contends were there at the time of the search. The appellant’s witnesses say they did not see any signs when they entered. The trial judge did not think this determinative and did not make a finding on this disputed evidence.

On June 3, 1975, acting on information supplied by two informers, Knoxville police officers Richard Houser and Steve Sherrod went on the appellee’s farm to determine whether or not marijuana was being cultivated there. Entering the farm from the wooded area near Clapps Chapel Road, they found a marijuana patch. It was not visible from the road but could be seen only after entering the premises. Officers made another search June 9 by climbing the fence and found another marijuana patch. They searched again June 14 and arrested the appellee on his farm June 21 at which time they found some marijuana in a plastic bag on the well house about 15 feet from his home. After arresting him they then obtained a search warrant for his house and confiscated 32 pounds of green plant material, hand scales, hose and some fertilizer.

Obviously the legality of the initial search by Houser and Sherrod on June 3 determines the issue before us. If it was illegal, the subsequent searches were likewise illegal under the “fruit of the poisonous tree” doctrine. Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

Both sides agree that the ban against unreasonable searches and seizures in the Tennessee Constitution, Article I, Section 7, is broader than that of the United States Constitution, Amendment IV, because it covers “possessions” while the federal provision covers only “effects.” We are unable to accept this conclusion.

In Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857 (1967), our Supreme Court said that the federal and state provisions against unreasonable searches and seizures are identical in intent and purpose and the court would not construe the Tennessee article more favorably to the accused than its federal counterpart. It also said we should regard federal cases as particularly persuasive on search and seizure issues. See also Anthony v. Carter, Tenn., 541 S.W.2d 157 (1976).

The distinction between “possessions” and “effects” does not control the question before us. The United States Supreme Court has rejected the premise that distinctions based upon property interests control the right of the state or government to search and seize under the Fourth Amendment. Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 4 L.Ed.2d 697, 705 (1960); Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782, 790 (1967); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

In Katz v. United States, the court said:

“(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

“(F)ourth Amendment protects people — and not simply ‘areas’ — against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”

The state argues that the marijuana patch was found in the open fields of the farm, an. area unprotected by the Fourth Amendment. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); but Katz has modified Hester by injecting the privacy concept to the open-fields doctrine. See Katz, supra, footnote 9; Air Pollution Variance Board v. Western Alfalfa Corporation, 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), which specifically referred to respondent’s privacy interest, although finding none in that case, because inter alia, he took no steps to designate his property as private by excluding the public therefrom; and United States v. Santana, supra, which applied both Katz and Hester to the situation where the defendant was in the doorway of her home and was visible to policemen in the street.

In holding that the search violated the Tennessee Constitution, the trial judge relied heavily on Welch v. State, 154 Tenn. 60, 289 S.W.2d 510 (1926), protecting one’s “possessions” in actual occupancy from unreasonable searches and seizures. By its argument, the appellant contends this case was wrongly decided and, in light of new authority, we should hold that the word “possessions” has a common meaning with the word “effects.” Such a holding will not help the appellant because we find that the search violated both the Federal and the State Constitutions.

In United States ex rel. Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis.1975), officers climbed a fence and entered Gedko’s wooded and hilly 160-acre farm in a rural area without a search warrant and observed his activities in growing and harvesting marijuana and listened to his conversation when a government airplane flew low over his farm. The government relied on the open-fields exception of Hester v. United States, insisting that the government could intrude on the property so long as its officers remained outside the curtilage. The district court rejected that argument, holding that Gedko, who enclosed his property with a fence and hence designated his farm as private, had a reasonable expectation of privacy protected by the Fourth Amendment to the federal constitution that was violated when the police observed his activities from within the farm’s boundaries without a warrant. Wert had a similar expectation of privacy here which was similarly violated by the police.

The intrusion of the officers on Wert’s land without a search warrant was unlawful and the trial judge properly sustained the motion to suppress the evidence obtained by it. He did not abuse his discretion but, on the contrary, correctly suppressed the evidence.

The petition for certiorari is dismissed.

DUNCAN, J., concurs.