APPEAL from the Circuit Court of Scott County; the Hon. SIMON
L. FRIEDMAN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 15, 1979.
The State appeals from an order of the circuit court of Scott County granting defendant Dan Lashmett's motions to quash search warrant and to suppress. This appeal raises the question of the constitutionality of an aerial observation of defendant's property and subsequent entry onto defendant's land for the purpose of gathering additional information. Information acquired in this manner was then used to obtain a warrant to search defendant's property.
The complaint for search warrant filed April 12, 1978, by the Scott County sheriff before a circuit judge of that county stated the following: On March 16 and 18 and April 1, 1978, the Scott County sheriff's office received reports that farm equipment was missing from four different Scott County farms, namely, a John Deere model 4020 diesel farm tractor, a red International 20 foot 6 inch wide folding wing disc, a John Deere semi-mounted plow and a John Deere model 6600 hillside combine with a 4-row cornhead. The sheriff drove through Scott County looking for the missing machinery and instructed his deputies to do likewise. He also placed notices in county newspapers. On March 22, 1978, he questioned a local resident who stated that on March 10, 1978, he observed a John Deere model 4430 or 4630 farm tractor pulling an International fold-up wing type wheel disc "being the same type disc as reported missing" on a gravel road north of Winchester waiting to cross highway U.S. 36 and that the person driving the tractor was or looked like a person he knew to be the son of Dan Lashmett. The sheriff also interviewed another person who stated that he had observed a John Deere model 4430 farm tractor on the Dan Lashmett farm on Friday afternoon, March 10, 1978, and at other times prior to that date. The complaint recited why the sheriff considered those people to be reliable informants. On April 11, 1978, the sheriff received an offense report from the Pike County sheriff that parts from a John Deere model 4020 diesel farm tractor, including a vehicle identification plate, were missing from that county.
The complaint further stated that on April 11, 1978, the sheriff "chartered an airplane and flew over the entire territory of Scott County, Illinois in search of equipment matching the general description of the said missing farm machinery." During this flight, he observed on the premises of Lashmett Industries "what appeared to be a red wheel disc similar to the above-described missing wheel disc." He also observed a green tractor he believed to be a John Deere model 4020 or 4010 in an open feedlot on the farm of Dan Lashmett. Also on the Lashmett farm, in places not visible from the public road, he observed a 4-row John Deere cornhead, a large model John Deere combine, a red wheel disc and a semi-mounted plow. After the above-described aerial investigation, the sheriff personally went on Lashmett's property and observed the identification plate on the John Deere model 4020 farm tractor which bore the same vehicle identification number as the identification plate missing from Pike County.
On the basis of the sheriff's complaint, a warrant to search defendant's farm including lands, feedlots, timbers, fields, and all non-residence buildings thereon was issued at 7:15 a.m. on April 12, 1978. It authorized seizure of an International wheel disc and the following John Deere machinery: a 4020 diesel farm tractor, 6600 hillside combine, 4-row cornhead, semi-mounted plow, and parts to a 4020 tractor. Pursuant to the warrant, the tractor, disc, plow, combine and cornhead were seized as well as a 3-point John Deere fasthitch and a hood for a John Deere 4020 tractor.
Defendant was then indicted on 6 counts of theft of property with a value over $150, each count charging the theft of a different piece of farm machinery.
Defendant's motion to quash search warrant and motion to suppress alleged that the search and seizure of the above items pursuant to the warrant was illegal and violated his constitutional rights, in part, because information supporting the complaint for search warrant was obtained by an illegal trespass on defendant's land.
1 The State argues that even if the entry onto defendant's land constituted an illegal search, the aerial observation did not, and that the complaint for search warrant, minus any information obtained by entry onto defendant's land, was sufficient to establish probable cause to issue a search warrant. No Illinois cases involving aerial investigations have been called to our attention, but we do not deem the aerial observation here to have been an illegal search. When the sheriff observed the farm machinery from the airplane, he was in a place where he had a right to be and the machinery was in clear view from that vantage point.
Defendant cites People v. Sneed (1973), 32 Cal.App.3d 535, 108 Cal. Reptr. 146, where the California appellate court ruled that an observation from a helicopter of marijuana being grown on property rented by defendant was an unconstitutional search. The court noted that the helicopter activity was "manifestly exploratory" in nature and that its position 20-25 feet above the ground was an "obtrusive invasion of privacy" and probably illegal. In dictum, though, the court stated that defendant would certainly have no reasonable expectation of privacy "from airplanes and helicopters flying at legal and reasonable heights." (32 Cal.App.3d 535, 542-43, 108 Cal. Reptr. 146, 151.) Here, at the hearing on the motions to quash and to suppress, the sheriff testified without objection that the airplane was flying 2400 feet above the ground.
Assuming, arguendo, that the information obtained as a result of the entry onto defendant's land can be separated from the other allegations of the complaint for search warrant (contra, United States v. Nelson (6th Cir. 1972), 459 F.2d 884), we do not believe the remaining information was sufficient to support the issuance of a search warrant. Absent the incriminating allegation that the tractor on defendant's property had a vehicle identification plate bearing the same number as a plate reported missing from an adjacent county, the complaint alleged only that the sheriff had observed on defendant's property, an assemblage of farm machinery of the same general type and brand as those reported stolen. The record does not indicate that any of the missing equipment would not be used in normal farming operations and no doubt many farmers in the area owned John Deere and International Harvester implements. Nor do we consider anything unusual or unique about this combination of equipment.
We believe that the information acquired by the sheriff by his entry onto defendant's land was necessary to support the issuance of the search warrant in this case. The constitutionality of the sheriff's actions in obtaining this information presents a much more difficult question.
Without objection, the sheriff and one of his deputies testified that at 2 a.m. on the morning following the aerial observation, one of the deputies drove the sheriff and Deputy Bryan to the northeast corner of defendant's property which bordered a county road. The sheriff and Bryan climbed or stepped over a fence and walked across defendant's field to a waterway where they saw the cornhead. The sheriff did not know where the serial number was and could not find it. They then walked 100 yards or less to the tractor, crossing another gate or fence in the process. The tractor was located near a hog shed, near the end of a private driveway which ran from defendant's house out to the hog shed, other outbuildings and a private fishing and swimming pond. The entire area was surrounded by a fence and there were no gates or fences between the house and the tractor. Both the sheriff and defendant testified that the tractor was 100 to 125 yards from the house. The sheriff saw that the number on the tractor's vehicle identification plate matched one that had been reported missing from Pike County. They then went back to the squad car and returned to town. The sheriff contacted the State's Attorney and sent the two deputies back to defendant's farm to keep it under surveillance. The sheriff stated that to his knowledge, neither he nor any of the deputies had asked defendant or his family for permission to be on the property.
The State argues that the sheriff's entry onto defendant's land to obtain additional information was permissible under the doctrine of "open fields" first enunciated by Mr. Justice Holmes in Hester v. United States (1924), 265 U.S. 57, 68 L.Ed. 898, 44 S.Ct. 445. There, revenue officers acting on information approached the house where defendant lived. Seeing a man drive up, they concealed themselves and saw defendant come out and hand him a quart bottle. An alarm was given, defendant took a gallon jug from a nearby car, and both men ran. As they did so, they dropped or threw away the containers, which broke. The officers recognized the contents as moonshine whiskey. Outside the house, they also found a broken jar ...