APPEAL from the Circuit Court of Jasper County; the Hon.
WILLIAM R. TODD, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Pursuant to Supreme Court Rule 604(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)), the State appeals from an order of the trial court granting the motion of the defendants, Michael and Catherine Dasenbrock, to quash a search warrant and to suppress evidence seized in consequence of it.
Defendants were charged with the unlawful possession and production of cannabis. On appeal two principal issues must be resolved: (1) whether a search warrant was necessary for that part of the search in which evidence was observed growing out-of-doors upon defendants' property, and (2) whether the complaint for search warrant established probable cause for issuance of the warrant, which led to a search of the inside of defendants' residence and resulted in seizure of all the evidence taken in the case from both inside and outside the residence.
At the hearing on defendants' motion to quash and to suppress, the parties stipulated as to certain facts as follows:
"STATES ATTORNEY: After a conference between the attorney for Mr. and Mrs. Dasenbrock and myself we have agreed that if evidence were presented in support of this search warrant it would show the following facts: (1) On September 25, 1979, the Sheriff of Jasper County, after receiving an anonymous citizen's complaint as stated in the complaint the Sheriff went to the premises, walked from a bean field owned by Mr. Oscar Strutner and when the Sheriff was 5 to 10 feet on the Dasenbrock property he saw what he stated to be marijuana in the complaint for search warrant. The entry on the Dasenbrock property was without consent; (2) No chemical test of the marijuana was made before the search warrant issued and the only means of identifying the marijuana was by observation.
MR. FRAZIN [attorney for defendants]: Prior to the securing of the search warrant.
STATES ATTORNEY: That's all right. (3) The Dasenbrock property is not enclosed by any fence and was surrounded by soybean fields owned by Mr. Oscar Strutner as tenant on three sides and fronts on a public road. The Dasenbrock property consists of about 3/4 acre approximately in a square; (4) During execution of the search warrant in excess of 500 grams of marijuana plants were found growing in the rear of the house behind the house where the plants could not be viewed from the public road but could be seen from the bean field. There was about 280 grams of marijuana found in the Dasenbrock house searched pursuant to the warrant.
MR. FRAZIN: I will stipulate to that set of facts assuming that the chemical analysis does coorborate [sic] it was, in fact, marijuana."
The complaint by Sheriff Finn, which was signed and sworn to before Judge Arthur G. Henken, describes the property to be searched:
"The house, barn and shed located on [legal description] Jasper County, Illinois, said buildings being located approximately one-fourth mile South of the public road running on the North side of said Section 36 and approximately one-fourth mile West of the East line of said Section 36."
Thereafter complainant stated,
"On the 25th day of September, 1979, Complainant personally observed Cannabis growing near the buildings located in the above property and saw Cannabis growing, being six Feet or more in heighth [sic], went to where the Marijuana was growing, and personally verified existence of the Marijuana.
Complainant further says that a citizen informed him that Marijuana was being harvested and dried in the buildings located in the above described property. Said citizen's complaint was received on September 25, 1979."
With reference to the initial search of defendants' property outside the residence, the State maintains that, even if the warrant later obtained was in fact defective, no warrant was necessary to search for or to seize the material located there by virtue of the "open fields" doctrine. That doctrine was announced in Hester v. United States (1924), 265 U.S. 57, 59, 68 L.Ed. 898, 900, 44 S.Ct. 445, 446, where the court held that "the special protection accorded by the 4th Amendment to the people in their `persons, houses, papers, and effects' is not extended to the open fields. The distinction between the latter and the house is as old as ...