dissenting:
Respectfully, I dissent.
The Barnatos, who were charged in the district court with the unlawful possession of marijuana and the cultivation of marijuana, have appealed from an interlocutory order of the district court denying their motion to suppress as evidence the marijuana seized in the Barnatos’ garden and home. They assert that the search and the seizure of the marijuana, pursuant to a search warrant issued by the magistrate, violated their Fourth Amendment rights. The district judge rejected their claim and denied their motion to suppress the marijuana as evidence. I agree with the ruling of the district judge, and I would deny the Barnatos’ appeal.
On August 24, 1971, accompanied by a neighbor of the Barnatos’ and with the permission of Mrs. Bamato, the Animal Control Officer of Douglas County set a trap underneath the Barnatos’ house to catch a domestic cat that had become wild. Upon leaving, the Officer noticed several plants growing in the garden and asked Mrs. Barnato what they were. She replied that she didn’t know. The Officer remarked that they looked like marijuana plants and then left the premises.
*516The following day the Animal Control Officer described the plants to a deputy sheriff. They decided to go to the Barnato home and inspect the plants. Without informing the Barnatos of their intention, they proceeded onto the Barnato property and took a leaf from one of the plants. That leaf was tested by a chemist and found to be a leaf from a marijuana plant. The deputy district attorney was advised of this fact. He suggested that another leaf be obtained on an occasion when the officers had the consent of the Barnatos to be on their property. On August 27, the Animal Control Officer telephoned Mrs. Barnato and asked her permission for him to come to her home for the ostensible purpose of checking the trap. Permission was given. Upon arriving at the home, the Officer was met by Mrs. Barnato, who accompanied him to the place where the trap had been set. The Officer retrieved the trap and was walking behind Mrs. Barnato when he stopped and took a leaf from another plant. The Officer reset the trap in the garage attic and then departed. This leaf was subjected to test and found to be marijuana. Affidavits were then prepared to support a search warrant. A warrant was issued authorizing a search of the Barnatos’ home and surrounding property. Search and arrest warrants were served on Mrs. Barnato, and she was advised of her rights. Several marijuana plants were found both inside the home and in the garden where originally observed by the Animal Control Officer. At preliminary hearing, all evidence seized pursuant to the warrant was received in evidence and is, of course, the evidence to which the district court motion to suppress was directed.
I would uphold the legality of the search in this case because, under the facts presented, in my opinion the search was reasonable. The Officer was on the Barnato property with the owners’ permission. There was no unlawful invasion of the Barnatos’ privacy. The marijuana in the garden was in plain view. The officers did all that could be expected of them. After they learned that the suspected plants were marijuana, they obtained a search warrant, upon proper affidavit, from the magistrate. I simply cannot fault them for their actions in this case. See People v. Bradley, 81 Cal.Rptr. 457, 460 P.2d 129 (Cal. 1969), where the California Supreme Court held that an officer’s discovery and seizure, without a warrant, of marijuana plants growing under a tree adjacent to the defendant’s residence, pursuant to a tip from an unreliable informant, did not violate any constitutional prohibition against unreasonable searches and seizures, where the plants were in plain sight of anyone within a foot of the tree located approximately 20 feet *517from the defendant’s door. The California court held, 81 Cal.Rptr. at 459, 460 P.2d at 131:
“. . . [W]e believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion. [Citation omitted.]
“Measured by that test we are satisfied that the officer’s discovery and seizure of the marijuana plants in the yard adjacent to defendant’s residence did not violate the constitutional prohibitions against unreasonable searches and seizures. From the recited evidence it may be inferred that the marijuana plants were partially but not totally covered by foliage. It does not appear that the plants were covered by nontransparent material, and it may be inferred that at least part of the plants were in plain sight of anyone within a foot of the tree. Although they were in a rear yard that was fenced to an undisclosed extent, they were located a scant 20 feet from defendant’s door to which presumably delivery men and others came, and the front house, as well as defendant’s house, apparently had access to the yard. Under the circumstances it does not appear that defendant exhibited a subjective expectation of privacy as to the plants. Furthermore, any such expectation would have been unreasonable. [Citations omitted.]”
See also the recent case of Blincoe v. People, 494 P.2d 1285 (Colo. 1972). In Blincoe, the Colorado Supreme Court ruled that officers who were on the premises with consent were entitled to seize stolen items in plain view. As in this case, a suppression hearing was held. At the conclusion of the hearing, the district court denied the defendant’s motion to suppress evidence that had been seized by the police officers. In denying the motion, the district court found that the articles were in plain view and that a warrant was not required. The Colorado Supreme Court upheld the ruling of the lower court and said, 494 P.2d at 1286: *518persons who resided in the house was then present in the backyard, did the officers enter the curtilage of the premises. The curtilage concept came from the court’s desire to protect not only a citizen’s house, but his grounds as well, from intrusions and an invasion of privacy. The police conduct was reasonable under the circumstances before us, and no claim can be made that a right of privacy was infringed. In this limited factual situation, the officers’ presence on the property for the legitimate purpose of making inquiry about stolen goods was justified. [Citations omitted.] Being legitimately on the property, the officers were entitled to seize any stolen items which were in plain view. [Citations omitted.]” (Emphasis in original.) See also People v. McGahey, 500 P.2d 977 (Colo. 1972).1
*517“Suppression was not required in this case primarily because the record failed to support the defendant’s contention that the officers were engaged in a search when they observed the adding machine and cash register in plain view. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) [the principal case cited by our majority in support of their ruling today]. To the contrary, the officers’ presence on the premises was for the avowed purpose of making inquiry about the stolen articles. Only after the officers failed to find anyone at home and were informed that one of the
*518In the instant case, the seizure of marijuana leaves on August 25 and 27 did not violate the Fourth Amendment. The marijuana plants were in plain view. No effort was made to conceal them from the vision of anyone who happened to be in the yard. There is nothing to suggest that the Barnatos exhibited a subjective expectation of privacy as to the plants. Indeed, to an extent, Mrs. Barnato was forewarned, since on the first visit, which occurred with her permission, the Animal Control Officer inquired about the plants, and she did nothing thereafter to conceal or destroy them. She must have known of his interest and the probability that on any later visit by him, or anyone else, a similar inquiry might be made, and more definitive action taken. On August 27, the Animal Control Officer came to her home, once more, with permission, for the ostensible purpose of checking the trap, and seized a leaf from another marijuana plant. It cannot reasonably be asserted that, in these circumstances, Mrs. Barnato exhibited a subjective expectation of privacy as to the marijuana plants.
The guaranty against unreasonable searches and seizures is not a haven behind which one may seek refuge for violation of law committed on his property, the evidence of which he makes no effort to conceal. What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. Since the seizures of marijuana leaves on August 25 and 27 were constitutionally permissible, the *519subsequent search and seizures of the marijuana plants pursuant to warrant could not have been tainted thereby. Therefore, the evidence secured pursuant to warrant, in my opinion, is not barred. I would uphold the validity of the search and seizures, and I would sustain the district judge’s ruling denying the defendants’ motion to suppress.
Mr. Justice Gunderson, in writing for the majority, has in his footnote 4, elected to criticize the authorities that I have cited in support of my position. I prefer not to answer those comments, for the authorities I have cited have not been overruled, and they speak for themselves. Further, the full texts of the cases cited in both the majority and this minority opinion are available for reference to both bench and bar.