dissenting.
I dissent.
The county court judge, on September 14, 1983, denied issuance of a search warrant for Kathleen Tompkins-Taylor’s property and suggested further investigation. On September 28, 1983, two deputies undertook further investigation — surreptitiously, at night, without permission or authority and unlawfully in trespass — by entering through a fence onto the private property of Kathleen Tompkins-Taylor. They pried back a panel on the wall of her greenhouse and peered in observing what they believed was marijuana. Kathleen was not home, and now deputies urgently needed to find Kathleen. They continued a search of the property. While searching for Kathleen, they stumbled onto Wayne’s house, also located within the fenced property. The deputy peeked in a window of Wayne’s house still looking for Kathleen and instead inadvertently observed marijuana plants.
The deputies, wanting to check on potatoes that were frying, proceeded to Curtis’ house, which was also within the same fenced, enclosed area as Kathleen’s house. The deputies found the potatoes and also a small amount of marijuana at Curtis’ house.
Charges against Kathleen were dismissed because of the unlawful search of her house. Wayne entered a conditional plea of guilty reserving the right to appeal the constitutional issues relating to the search of his property. We held that Rule
15, W.R.Cr.P., did not permit a conditional plea to obtain an evidentiary ruling and remanded Wayne’s case for re-pleading. I concur in the opinion of the court as to Wayne.
Curtis went to trial upon a charge of aiding and abetting Wayne in the possession of a controlled substance with intent to deliver. The majority opinion correctly recites that the State had the burden of proving that Wayne unlawfully possessed a controlled substance with intent to deliver and that Curtis knowingly aided and abetted Wayne in the endeavor. The State proved that Wayne unlawfully possessed a controlled substance with intent to deliver by putting into evidence Wayne’s plea of guilty and informing the jury on several occasions that the plea established the necessary elements and was proof, in the words of the prosecutor, that the “marijuana was heading for delivery.” Now we have vacated Wayne’s plea of guilty. The status of the record in Curtis’ ease now is that, without Wayne’s guilty plea, there simply is no evidence at all that Wayne unlawfully possessed marijuana with intent to deliver. Such evidence may or may not exist. These necessary elements, possession with intent on the part of Wayne to deliver, may, in the absence of his guilty plea, be incapable of proof. I would, therefore, also reverse Curtis’ conviction and remand for further proceedings.
With respect to the claim of both Wayne and Curtis that results of the search should be excluded as “fruit of the poisonous tree,” both Wayne and Curtis moved to suppress the evidence seized. Their motions were denied, but the effect was to preserve the right to raise the question of unlawful search on appeal without having to invoke the doctrine of harmless error.
For the reasons stated, I concur in the reversal as to Wayne but would also reverse as to Curtis.