dissenting:
I dissent from the majority opinion because I do not agree that the area in which the cannabis was initially observed was within the curtilage of the dwelling. Instead, I believe the marijuana was observed in an “open field” and that the search warrant was properly issued based upon the officers’ lawful observance of cannabis growing in an open field.
The extent of a dwelling’s curtilage is determined by factors which bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. (United States v. Dunn (1987), 480 U.S. 294, 300, 94 L. Ed. 2d 326, 334, 107 S. Ct. 1134, 1139.) As the majority points out, the question should be determined with particular reference to four factors: the proximity of the area to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 334-35,107 S. Ct. at 1139.
I believe the instant case is remarkably similar to People v. Bechtel (1985), 137 Ill. App. 3d 810, 485 N.E.2d 474, cert, denied (1986), 476 U.S. 1143, 90 L. Ed. 2d 699, 106 S. Ct. 2254, in which the appellate court reversed a trial court’s finding that a garden, located approximately 120 to 150 feet from the house and behind a barn, was curtilage and therefore protected under the fourth amendment. The garden was surrounded on two sides by a plank fence four to six feet high, but on one side adjoined an open corn field. There was no common enclosure surrounding the various structures and the garden.
The appellate court found that the garden was not so closely adjacent to the house as to be within the dwelling’s immediate surroundings. It was separated from the house by a barn and a driveway and was not annexed to the residence. This court found that the open and comparatively accessible garden was not the type of area so fundamentally related to the householder’s private occupation of his dwelling as to fall within the concept of curtilage.
Similarly, in the instant case, I do not believe that the garden containing the marijuana was so closely adjacent to the house as to fall within its curtilage. The garden was approximately 100 to 125 feet behind the house and separated from the house by a garage. Thus, it was some distance from the house and cannot be said to be part of the householders’ backyard. There was no fence or enclosure around the house and garden. There is no evidence in the record that the garden was used for any purpose other than the growing of marijuana, such as the growing of vegetables for home consumption or recreating. Finally, defendants had taken no steps to protect the garden from observation by people passing by. The garden was surrounded by woods on three sides, and by a shed and brush pile on one side. While the garden was not visible from the public road in front of defendants’ house, it was visible from the woods behind the house and garden. Defendants do not argue that the woods behind the house also constituted curtilage, and the officers’ presence in the woods did not violate defendants’ fourth amendment rights under the “open fields” doctrine. Oliver v. United States (1984), 466 U.S. 170, 180, 80 L. Ed. 2d 214, 224, 104 S. Ct. 1735, 1742 (an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home).
Applying the four factors set forth in Dunn to the case at bar, I believe that the garden where the marijuana was found was not curtilage, but was an open field which was not protected by the fourth amendment. I believe the trial court’s finding to the contrary was manifestly erroneous, and I would reverse its judgment suppressing the cannabis as evidence.