specially concurring.
Although I agree with the result in this case, I do not agree with the broad language used in part of the majority’s analysis. In particular, I do not agree with the majority’s statement that we have previously “found a privacy interest in the area surrounding an apartment dweller’s residence.” 98 Or App at 111. State v. Roles, 75 Or App 63, 705 P2d 227 (1985), cited by the majority, does not stand for that proposition.1 In fact, we have never before addressed the general question of whether a “common area” surrounding an apartment complex is afforded the same constitutional protection as the “curtilage” surrounding a private home. Moreover, I do not believe that it is necessary to address that issue here, because the area in question was not a “common area.”
The majority’s description of the location from which the officer made his observations in this case is misleading:
“The uncontested evidence also showed that defendants neither owned nor controlled the north yard, but shared its use with others connected with the apartment, * * * that the north yard is largely surrounded by fence, apartment buildings, and brush and that the, entrance into the area ordinarily is by *113leaving the walkway adjacent to Breshears’ apartment and walking on the grass leading into this area.” 98 Or App at 111.
In fact, photographs and testimony introduced at the hearing reveal that the area referred to by the majority as the “north yard” is actually nothing more than a narrow strip of grass and weeds, approximately 10 to 15 feet wide, running the length of Breshears’ apartment and ending with brush and a fence.2 The sides of the area are largely overgrown with foliage, thus blocking out sunlight and making entry into or exit from the area difficult at those points. Defendant Oliver testified that neither she nor Breshears had ever seen anyone enter the area and that she had never been back there herself, because “[i]t’s an unattractive area. It’s dark. It doesn’t go anywhere. It’s just not a place to go.” The trial court granted defendants’ motion to controvert the officer’s statement that the area was a “common area.” The state does not challenge that ruling.
On the limited facts of this case, I agree with the majority’s conclusion that the officer observed the marijuana plant from a location where he did not have a right to be. Accordingly, I concur in the result.
In Roles, the defendant, a renter, had actual and exclusive possession of the upper floor of a house. A door leading from the upper floor onto a secluded roof area provided the only direct access to the roof. The roof, where the defendant was growing marijuana, was not “an area surrounding an apartment dweller’s residence,” but rather was a remote location to which only the defendant had access.
The diagram attached to the affidavit and reproduced in footnote one of the majority opinion is incomplete in that it does not reflect that 10 to 15 feet north of Breshears’ building is another building running parallel to it, with large shrubs in between.