Appeal from the Circuit Court of Ogle County; the Hon. John L.
Moore, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Ogle County which suppressed as evidence a quantity of marijuana seized following a search of the house and garden occupied by defendant, Donald P. Becktel. The State challenges the trial court's ruling as manifestly erroneous, asserting that defendant lacked standing to contest the search and seizure, and that police conduct was proper under the "open fields" doctrine or under the theory of plain view.
On June 30, 1983, officers of the Ogle County sheriff's department executed a search warrant upon defendant's residence near Mt. Morris. The terms of the warrant authorized search of defendant's two-story house and the unattached garage adjacent to the barn, and directed seizure of "[a]ny green plantlike material commonly referred to as Cannabis." Upon executing the warrant, officers discovered nine potted marijuana plants growing in the basement of the residence. A bag of marijuana was also found in the basement, and some seeds and dried marijuana were found in the kitchen. Several marijuana plants were discovered in the garden. Defendant was thereafter charged by information with the unlawful manufacture of more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 705(e)).
Defendant filed a motion to quash the search warrant and to suppress the evidence which had thereby been obtained. Among other things, defendant alleged that the garden was located in a secluded area on the lot, hidden from view from either the house or garage, and not within plain view of either location. Thus, search of the garden was alleged to be beyond the scope of the search warrant, requiring suppression of evidence found there.
Detective Sergeant Richard Wilkinson testified that following his search of defendant's house, he and his partner loaded their squad car with the items seized from the residence. At that time, the two detectives observed that the garage door was open. Upon observing various plants and roots inside the garage, they walked over to it and observed that this material was only shrubbery. The two detectives could not agree as to whether it was proper to enter the garage, and they walked around the side of the garage to examine the search warrant. They decided that they should not go into the garage and began walking back towards their squad car.
The garage was built across from a barn, which extended back toward the rear of the property. Sergeant Wilkinson testified that as the two detectives began walking from the side of the garage back to their car, they were able to observe a garden at the rear of the lot through a gap between the end of the barn and a fence. This gap was 10 to 15 feet in width and had apparently been left open to provide access to the garden. From a distance of about 20 yards, the detectives were able to see several potted plants in the garden, growing to a height of about two feet. They were unable at this time to identify the nature of the plants. The two detectives walked into the garden and saw that the plants were marijuana. They also observed growing marijuana.
Sergeant Wilkinson described the garden as behind a barn, which was 103 feet from the house. The garden adjoined an open field and was open on that side. He agreed with defendant's counsel that the garden's dimensions were approximately 74 by 32 feet. His testimony was inconclusive as to whether, in view of crops then growing in the adjoining field, the garden could have been seen at the time from the road running past the house. The garden itself was surrounded on two sides by a plank fence four to six feet high.
Defendant's wife testified that she and her husband rented the house in which they lived, that they used the garage, garden and sheds for storage, and that they did not farm the grounds. Their rental agreement was oral, providing that the Becktels would rent the house, use the garage, "[a]nd take care of the yard and the garden we use."
In a letter of opinion, the trial court suppressed the evidence found in the garden, but denied suppression of the material seized from the house. The State's motion to reconsider was denied, and this appeal followed.
• 1 In Hester v. United States (1924), 265 U.S. 57, 68 L.Ed.898, 44 S.Ct. 445, the Supreme Court established the doctrine that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers. This rule, commonly referred to as the "open fields doctrine," provides that an individual may not legitimately demand privacy for activities conducted out-of-doors in fields, except in the area immediately surrounding the home. (Oliver v. United States (1984), 466 U.S. 170, 80 L.Ed.2d 214, 104 S.Ct. 1735.) In the present case, the State argues that the garden where the marijuana plants were discovered was sufficiently distant from the house, visible from the public way and accessible to the public through an unfenced area so as not to fall within the category of premises protected by the fourth amendment. Defendant counters that the State's reliance upon the open fields doctrine is misplaced, because the garden was within the area of close proximity to the house known as the curtilage.
• 2 It has traditionally been held that the curtilage, whether fenced or open, is an area protected from unreasonable searches and seizures. (People v. Vaglica (1968), 99 Ill. App.2d 194, 197.) The test for determining the limits of the curtilage has been expressed in the following terms:
"Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family." (People v. Pakula (1980), 89 Ill. App.3d 789, 793, 411 N.E.2d 1385, 1388, quoting Wattenburg v. United States (9th Cir. 1968), 388 F.2d 853, 857.)
In other words, the curtilage is defined "by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." (Oliver v. United States (1984), 466 U.S. 170, 180, 80 L.Ed.2d 214, 225, 104 S.Ct. 1735, 1742.) An area is not deemed to be within the curtilage solely because the property owner subjectively intended it to be protected from intrusion by outside persons, or that the governmental intrusion constituted a trespass at common law. Oliver v. United States (1984), 466 U.S. 170, 182-84, 80 L.Ed.2d 214, 226-28, 104 S.Ct. 1735, 1743-44.
• 3 We find the trial court erred in finding defendant's garden to be within an area where there was a constitutionally justified right to privacy. The garden in this case was partially enclosed by fencing and was situated behind the barn and extended beyond it in such a manner that its unfenced side was separated from a public road only by an open cornfield, farmed by a third party. The barn itself was separated from the house by a driveway and was located 103 feet from the house. The garden was estimated as being 120 to 150 feet from the house, and there was no common enclosure surrounding the various structures. Defendant and his wife cultivated the garden and ...