This is a criminal case in which defendant seeks reversal of the judgment entered on her conviction for the crime of Manufacture of a Controlled Substance. The sole issue on appeal is whether the trial court erred in failing to suppress evidence seized as a result of a warrantless search and seizure on property where the defendant was living. 1 We conclude that the warrantless search and seizure was unreasonable and therefore reverse.
The evidence introduced at the suppression hearing reveals that on September 25, 1979, Jackson County detectives executed a search warrant on property adjacent to the Escale property. The warrant was for the seizure of marijuana plants. While on the adjacent property, one of the detectives spotted marijuana plants on the Escale property. He called this discovery to the attention of the other detectives. The detectives testifying at the suppression hearing agreed that the plants growing on the Escale property could be clearly seen from the adjoining property; although a wire fence separated the two parcels, it did not block their view in any way. The plants observed by the officers were about 20 feet from the fence and ranged in size from quite small to six to eight feet in height.
After their observations, the officers decided to enter the Escale property. They did that by crossing on to it from the point at which they had made their observations. As they approached the residence to identify the occupants, they heard a vehicle leaving the area. The officers called out, trying to summon someone on the property, but received no response. It is not clear if they actually went to the house. They did proceed to seize the marijuana plants they had seen on the property. Other plants, located behind the residence and observed as the officers approached the house, were also seized. The officers made no attempt to obtain a search warrant.
The officers testified that the Escale property was thickly vegetated and in a secluded rural area. They *966 observed fences on the property but did not see any "no trespassing” signs. A creek or gully separated the two parcels of property near the point where the officers entered it. It is not clear if the officers crossed over a fence. From the description given, they may have had to cross the creek or gully. One officer did recall jumping across or wading through some water.
The evidence at the suppression hearing revealed that the defendant did not actually own the property in question; it was owned by the individual with whom she was living. Defendant had lived there for a little over two years and considered it her home. Both defendant and the owner of the property testified as to its secluded nature. Both expressed their feeling that the property was in a private area. The owner testified that he had put up "no trespassing” signs along the creek crossing and a "hot” fence along a portion of that area to keep people out. Apparently, the creek and this partial fence separated his property from the property the detectives had been searching. However, one could enter the Escale property from the adjacent property without having to cross the fence. The owner stated that a nudist colony was also adjacent to his property and that the residents of the colony occasionally got lost and "drifted” onto his property.
At a second hearing on defendant’s motion to suppress, counsel for the state acknowledged that the search warrant which the officers were executing on the adjacent property was defective.
The trial judge denied the defendant’s motion to suppress the evidence of the seized marijuana plants. He found, as a matter of fact, that the land in question is extremely rural, brushy and generally unfenced, that residents of the nudist colony occasionally wandered onto the land, that the marijuana plants were located near adjoining land and that they could be seen from the officers’ vantage point on that adjacent land. On the basis of the above facts and his belief that the defendant was a "social guest” at the time of the seizure, 2 the court concluded that *967 both the search and warrantless seizure were reasonable. The court found that, although the defendant had a subjective expectation of privacy, that expectation was not reasonable, and the area was therefore not a constitutionally protected area.
In her brief, defendant focuses primarily on the illegality of the officers’ presence on the neighboring property. She claims that, because the search warrant they were executing was invalid, the police did not have a right to be there, the "plain view” doctrine does not apply and the officers’ observations and subsequent search and seizure were invalid. Defendant also contends that she had a reasonable expectation of privacy in the property in question.
It is helpful to distinguish between two types of "plain view.” The doctrine of plain view, as the term is most commonly used, was established in
Coolidge v. New Hampshire,
There is a second type of plain view, which involves a situation in which no real "search” has occurred. As stated by La Fave:
*968 "* * *[i]t encompasses those circumstances in which an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area. This includes the case in which an officer discovers an object which has been left in an open field or similar nonprotected area. * * *” 1 La Fave, Search and Seizure, § 2.2, p 242 (1978).
Because this kind of "plain view” involves no intrusion covered by the Fourth Amendment, the three requirements set forth in
Coolidge
need not be met. 1 La Fave,
supra,
at 243;
see also, State v. Corbett,
The test of whether an area is a "constitutionally protected” area of the type referred to by La Fave depends upon whether the defendant had a reasonable expectation of privacy in the area in question.
Katz v. United States,
In State v. Stanton, supra, an "open field” case, we stated that whether there is a reasonable expectation of privacy turns on the facts of each case. In Stanton, the police received a report of marijuana growing on a certain parcel of land. An officer, accompanied by a neighbor boy who had first discovered the plants, entered the land to examine them. He picked one of the plants and then, based upon what he had observed, applied for a warrant to seize the rest. We concluded that, while the defendant may have had a subjective expectation of privacy, the expectation was not objectively reasonable. The land was undeveloped pasture land and, as we noted, the plants were in plain view of anyone who happened to be on the property. We stated that, in Oregon, "it is not uncommon for members of the public to engage in various recreational activities on private property.” Id., at 296. Thus, one could expect that plants grown in such an open area would be noticed by others.
*969
In a recent case,
State v. Harp, supra,
In this case, the plants could be seen from the adjoining property. As in Harp, there was no reasonable expectation that the plants would not be seen by the neighbors and persons on the neighbors’ property. However, even though the observation was lawful, it does not follow that the warrantless seizure of the observed plants was likewise lawful. See 1 La Fave, supra, at 243.
Although a person owns property in a rural area where the land is generally undeveloped, it does not automatically follow that he or she cannot have a reasonable expectation of privacy in that property. In this regard, certain of our statements in
State v. Stanton, supra,
We think that, once the facts concerning a particular piece of property are established, the question of *970 whether there exists a reasonable expectation of privacy which society is prepared to recognize is one of law, not fact. Here, the evidence establishes that the marijuana was located on a section of a piece of property which was rural and substantially grown over with vegetation. The particular area of the property where the marijuana was located was partly protected by a fence and partly protected by a creek or gully. While the property was visible from adjoining property, there was no evidence in the record to suggest that people commonly (or ever) walked from one piece of property to the other. Nudists were known to come upon the larger piece of property of which the marijuana location was a part, but there is no evidence in the record to suggest that nudists ever wandered into or anywhere near the specific area where the marijuana was found. There is, in fact, no evidence that anyone other than defendant and Escale was ever on or passed through the part of the property upon which the marijuana was growing. There is no basis, therefore, for holding that this is a "plain view” case of the second type referred to by La Fave.
Under these facts, we hold that the defendant had a reasonable expectation of privacy which society recognizes. Because we conclude that the area on which the marijuana was growing was a "constitutionally protected area,” it follows that the police officers were required to obtain a search warrant before they could enter upon the property and seize the plants in question. As already noted, they did not do so. Under the circumstances, the motion to suppress evidence should have been granted.
Reversed and remanded for a new trial.
Notes
The property belonged to one Escale. Defendant and Escale had moved on to the property together over two years prior to this incident. Defendant did not share title to it. However, it was her home. To be accurate, we shall refer to the property as the "Escale property.”
We disagree with the trial court’s conclusion that the defendant was merely a social guest; the property and its residence were obviously her home. She therefore has standing to contest the search of the premises.
In
State v. Brown,