concurring specially.
I concur separately because I do not take the same route charted by my other brethren who, as I do, find no Fourth Amendment violation.1
First, as to the “curtilage” and “expectation” questions, which I do not consider to be controlling, I, too, am not led by law or logic to conclude that the place from which the marijuana was seized was outside the curtilage of the house. I am not persuaded that the residents could not claim a justifiable expectation of privacy in the garden, or that their subjective expectation of privacy in that part of their premises is one which society is not prepared to recognize as reasonable.
To say that the garden was outside the curtilage and thus not protected in the first place because classified as subject to the “open field” doctrine would mean that the officers could have simply come upon the property and searched for the garden which their tip indicated had marijuana growing in it. Considering the nature of this property, the composition of the improvements upon it, and the defendants’ relationship to it, I do not believe the “open field” doctrine applies. “ ‘Whether the place searched is within the curtilage is to be determined from the facts, . . .’” Payton v. State, 177 Ga. App. 104, 105 (1) (338 SE2d 462) (1985); Meeks v. State, 178 Ga. App. 9, 10 (2) (341 SE2d 880) (1986).
Defendants’ residence, a double-wide trailer, was approached by a driveway off a dirt road running from a state road. A small car shed was behind it, a barn was directly behind it, and a garden was behind the barn. The garden, which had corn, tomatoes, okra, beans, and other vegetables growing in it as well as the marijuana plants, was about 100 feet from front to back and could not be seen from the roadway or the front yard. Tall pine trees obscured the garden from aerial view, and the next residence was several hundred yards away.
The garden described in the testimony and displayed in photos and diagram does not fit into the “open fields” category envisioned in Hester v. United States, 265 U. S. 57 (44 SC 445, 68 LE 898) (1924) and Oliver v. United States, 466 U. S. 170 (104 SC 1735, 80 LE2d 214) (1983). The rule of Hester, which was reaffirmed in Oliver, “may *407be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home . . . The Amendment reflects the recognition of the Founders that certain enclaves should be free from arbitrary government interference.” Oliver, supra at 178.
Here we have a small plot, not accessible to the public either physically or by view, close to the house, with a path to it from the barn in front of it.
“[T]he common law distinguished ‘open fields’ from the ‘curtilage,’ the land immediately surrounding and associated with the home ... At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ . . . and therefore has been considered part of the home itself for Fourth Amendment purposes . . . [C]ourts have defined the curtilage ... by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver, supra at 180.
Applying the “expectation” criteria to the garden in this case, I would conclude that the residents had a legitimate expectation that it would be constitutionally free from warrantless intrusion by government officers. The fact that contraband was in the garden does not alter the legitimacy aspect of the expectation of privacy; if it did, then no warrant would be necessary for even a home in which there was contraband. A resident’s personal gardening, in a small plot close to his home and shielded from public view, comes within the activity described above. Otherwise warrantless searches could be made of backyards and other areas close to the house just because they were uncovered areas. But as said in Oliver, supra at 180, fn. 11: “It is clear . . . that the term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage.” In Meeks, supra, we held that the particular gardens involved were encompassed within the warrant authorizing a search of the curtilage.
That, however, does not end the inquiry as to whether the seizure in this case was lawful. In my opinion, it was.
The officers had gone to the residence to talk to Gravley about the tip. They saw him look at them through the window and were told that he would come out of the house to see them. They waited and then learned that he had gone to the barn. One went to the barn to speak with him and, through the open hallway in the barn, saw a male moving rapidly from place to place behind the barn. Still seeking Gravley, the officer went around to the back of the barn and there saw Gravley pulling marijuana plants out of the vegetable garden and throwing them over the barbed wire fence.
When this occurred, the officer was in a legitimate position of observation. He had made a prior valid intrusion on the premises to *408investigate the tip by seeking to talk to the resident. State v. Brooks, 160 Ga. App. 381 (287 SE2d 95) (1981). He had not violated that circumscribed intrusion by entering the house uninvited or going anywhere other than the place outside the house to which he was directed in order to fulfill a lawful task. If an officer may approach the outer door of a dwelling in order to make legitimate contact with the citizenry, as recognized in Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650) (1981), and may enter a storage room in a carport adjacent to the dwelling to look for a person he sought to arrest, Reed v. State, 163 Ga. App. 233 (293 SE2d 469) (1982), surely he may follow a person he knows is aware he wants to speak with him, to the place on the premises outside the home itself to which the person goes. Similarly to the state of affairs in State v. Lyons, 167 Ga. App. 747 (307 SE2d 285) (1983), the prerequisites for a “plain view” seizure were present and authorized it.
I am authorized to state that Presiding Judge Been joins in this special concurrence.
Although appellants also invoke Art. I, Sec. II, Par. XIII of the Constitution of Georgia of 1983, they make no argument in support of this bald assertion and so I would consider it abandoned. Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263) (1986).