State v. TaylorState v. Taylor
The defendant, Ronald D. Taylor, entered a Crosby1 plea to production2 of marijuana in contravention of
I.
Taylor, along with two other individuals, occupied a house on Charlie Jones Road, one mile from U.S. 84, in DeSoto Parish. A confidential reliable informant told the DeSoto Parish Sheriff‘s Office (“DPSO“) that one of the house residents was cultivating a marijuana patch across the road from the house; the CRI had routinely seen marijuana in the home. Lieutenant Robert J. Davidson of the DPSO put this information into an affidavit and a search warrant was issued covering:
A white frame house, located one mile off of U.S. 84 on the Charlie Jones Road. A green and white truck.
All vehicles on premises, all persons present and their personal belongings, all storage, garage, outbuildings and locked containers and curtilage, in or above the ground, all located in DeSoto Parish, Louisiana.
Although the affidavit described the property across the road from the defendant‘s house, the warrant did not. Furthermore, the warrant did not expressly include the affidavit by reference.
At least six DPSO deputies executed the search warrant, including Deputy Horace Womack and Deputy Pat Cobbs. At the hearing on the motion to suppress, Deputy Womack testified that he found small quantities of marijuana and drug paraphernalia inside the house.
However, Deputy Cobb made a more significant find. He testified that after the residence had been entered, he commenced a search for marijuana plants. Specifically, he crossed the Charlie Jones Road, a parish road, and walked through a pasture and into the woods and found a “cattle trail” therein. Deputy Cobb followed this trail which led to a marijuana patch containing 59 plants. The patch was contained in the wooded area and could not be seen either from the parish road or from the residence. Furthermore, Deputy Cobb had to cross a fence at the road to get into the field and another fence while in the woods, although the latter fence was in disrepair requiring the deputy only to step over a strand of rusted wire. Deputy Cobb admitted he did know who owned the property that he had searched.
Taylor subsequently admitted that the marijuana patch was his and he was charged with production of marijuana. Taylor filed a motion to suppress the seized evidence alleging generically that the evidence was illegally obtained. After the hearing, the court denied the motion. Taylor subsequently pled guilty, reserving his right to appeal the motion to suppress.
II.
The first assignment of error urges that the District Court erred in denying the motion to suppress the evidence. Taylor argues that the evidence of the marijuana plants should have been suppressed because the search warrant did not particularly describe the place that was searched where the marijuana plants were discovered. The State counters by arguing that the place where the plants were growing was described with sufficient particularity in the affidavit to support the search warrant. We pretermit discussion as to whether the warrant was executed properly because we find that the warrant requirement is not applicable.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. AMEND. IV .3
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
La. CONST. ART. 1, § 5 . (emphasis added).
Both constitutional provisions protect only reasonable expectations of privacy. State v. Nicholson, 95-2526 (La.App. 4th Cir. 2/15/96), 669 So.2d 1280. If there is no reasonable expectation of privacy in the matter sought to be protected, then the constitutional provisions are not applicable. Capital City Press v. East Baton Rouge Parish Metro. Council, 96-1979 (La.7/1/97), 696 So.2d 562; Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In other
The test for determining whether one has a reasonable expectation of privacy which is constitutionally protected “is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.” Capital City Press, supra, quoting State v. Harper, 27, 278 (La.App.2d Cir. 8/23/95), 660 So.2d 537, writ denied 95-2318 (La.1/12/96), 666 So.2d 320.
The United States Supreme Court has announced “that an individual may not legitimately demand privacy for activities conducted out of doors in fields.”4 Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
Admittedly, such a bright-line rule might not apply with equal vigor under the Louisiana Constitution. See State v. Stokes, 516 So.2d 129 (concurring in writ denial, JJ., Marcus and Cole); but cf. State v. Church, infra, (J. Cole dissenting); see also John Devlin and David Hilburn, Louisiana Constitutional Law, 52 La. L.Rev. 575, 591 (1992). While reasonable expectations of privacy analysis remains the same under both constitutions,5 the limitations upon the actor conducting the search, seizure, or invasion of privacy are greater under the Louisiana Constitution. State v. Church, 538 So.2d 993 (La.1989), citing State v. Hernandez, 410 So.2d 1381 (La.1982). However, we make this point only to be precise in light of recent jurisprudence, not as a basis for our holding today.
Although the effect of the “open fields” doctrine, as enunciated in Oliver, supra, may not be applied in all cases to evade the applicability of Art. 1,§ 5, the doctrine itself has been accepted into our jurisprudence. State v. Dupuis, 378 So.2d 934, 937 (La.1979), cert. dismissed, Grassi v. Louisiana, 446 U.S. 993, 100 S.Ct. 2980, 64 L.Ed.2d 850 (1980), cert. denied, Green v. Louisiana, 449 U.S. 828, 101 S.Ct. 93, 66 L.Ed.2d 32 (1980).
Certain areas outside the home, such as open fields, are entitled to less constitutional protection because they are more exposed to public view than areas such as a home. State v. Brown, 395 So.2d 1301 (La.1981); State v. Green, 96-208 (La.App. 3d Cir. 11/06/96), 683 So.2d 1292, 1298, writ denied, 96-2892 (La.6/13/97), 695 So.2d 963; State v. Smith, 94-901 (La.App. 5th Cir. 8/28/96), 680 So.2d 95, 97; State v. Brown, 598 So.2d 565, 571-72 (La.App. 4th Cir.1992), writ denied, 605 So.2d 1092 (La.1992); State v. Broussard, 560 So.2d 694, 699 (La.App. 3d Cir.1990), writ denied, 566 So.2d 981 (La. 1990); State v. Magouirk, 539 So.2d 50, 63 (La.App. 2d Cir.1988).6 Therefore, determining the classification of the area in question, as either a home including curtilage, or an open field, becomes important.
A number of factors determine whether a given location is an open field. In United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the court listed four factors:
(1) the proximity of the area claimed to be curtilage 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, and
(4) the steps taken by the resident to protect the area from observation by people passing by.
Additionally, “[t]he term `open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither `open’ or a `field’
In Dupuis, supra, the court—perhaps anticipating Oliver, supra-indicated that a warrantless search of an open area may be constitutionally permissible even when police are trespassing. The court in Dupuis noted that the defendants had taken no measures-such as signs, fences or gates-to protect their illegal conduct from public view.
The marijuana patch in the case sub judice was found on land Taylor did not claim to own or lease, and belonged to an unspecified party. Persons do not have a reasonable expectation of privacy in placing illegal contraband onto the property of others. State v. Harper, 27, 278 (La.App.2d Cir. 8/23/95), 660 So.2d 537, writ denied 95-2318 (La.1/20/96), 666 So.2d 320. However, under the facts of this case, the ownership of the property is irrelevant to the reasonableness of the defendant‘s expectation of privacy.
Although not observable from the road, the marijuana patch was at the terminus of an obvious trail which began across the road from Taylor‘s home. The entrance to this “cattle” trail was guarded by a single strand of wire on a broken-down fence. Judging from the testimony of the deputies who were involved in the search, the location bore essentially no indicia that its owner intended the site to be private-there was no testimony about a gate or a “No Trespassing” sign. It was some distance from the defendant‘s home and not associated with the home in any way.
Even where a site is shielded from view by terrain or foliage, it is nevertheless unreasonable for a citizen to expect privacy in an area where he has taken few affirmative steps to prevent others from observing the site. Moreover, the niceties of the law of trespass should not govern this issue. Dupuis, supra. Rather, the totality of the circumstances should be examined to determine whether a particular location is one of the relatively rare instances where officers will need to obtain a search warrant to search an open field.
The facts recited at the hearing on the motion to suppress and described above demonstrate that the defendant had no reasonable expectation of privacy in this patch of marijuana. There was essentially nothing to prevent anyone from walking down the path and discovering the contraband. Accordingly, officers needed no warrant to search this area, and the trial court did not err in denying the defendant‘s motion to suppress.
III.
Taylor‘s last two assignments of error urge that the trial court failed to adequately comply with the sentencing requirements of
A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La. 1983); State v. Anderson, 30, 306 (La.App.2d Cir. 1/21/98), 706 So.2d 598, 1998 WL 18026. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court complied with
The PSI is surprisingly thorough. It details Taylor‘s upbringing as one of six children, his progress through the 11th school grade, and his tenuous employment with a general contractor. Taylor is unmarried but has lived with the same woman for quite some time. Additionally, the court noted that Taylor was a second felony offender and currently on supervised probation for committing the same offense in Florida. Although the court did not recite the details of Taylor‘s social, educational and work history on the record, in this case the court‘s reference to the PSI is adequate. No part of the histories in the PSI is remarkable, and there are no peculiar aggravating or mitigating factors outside of Taylor‘s criminal history.
Taylor was then sentenced to five years at hard labor, credit for time served, and concurrent with any other sentence. Under
We must next determine whether the sentence imposed is too severe given the circumstances of the case and the defendant‘s background. State v. Downs, 30, 348 (La.App.2d Cir. 1/21/98), 705 So.2d 1277. If the sentence is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice, the sentence is considered unconstitutionally excessive as violative of
In the instant case, there is nothing to show that imposition of the minimum sentence was excessive. Moreover, the trial court‘s decision not to suspend any part of the sentence is adequately supported and does not shock our sense of consciousness. As noted above, Taylor was currently on probation for the same offense in Florida. Having been convicted and shown leniency, he elected to repeat the same behavior for which he was punished initially. This is strong evidence that Taylor would persist in his criminal conduct if a probated sentence were imposed. The quantity of the marijuana plants did not suggest that the plants were for personal consumption. Therefore, the imposition of the minimum sentence of five years at hard labor, given the fact that he was currently on probation for the same offense, was not excessive.
IV.
Upon review of the record, we note that the District Court informed Taylor that he had “three years to apply for post-conviction relief [PCR].” (R.p.55)
V.
For the above reasons, Ronald D.Taylor‘s conviction and sentence is affirmed.
CONVICTION AND SENTENCE AFFIRMED.