¶ 44. (concurring). This important case interprets the scope of protection from a warrantless search under the Fourth Amendment. I join the mandate and opinion of the court but write separately to respond to the dissent and to emphasize certain elements underlying the decision.
¶ 45. Price County sheriff s deputies had reason to believe that Thomas Martwick was growing marijuana at his home. An informant reported seeing marijuana plants inside his house, but more than a month passed after this sighting before the evidence was presented to the district attorney. The district attorney understood both the sanctity of the home and the integrity of the warrant process. He was concerned that the evidence to support a search warrant was stale, and after consulting with the judge, he deferred taking action.
¶ 46. Thereafter, two deputies went to the Martwick property to see if they could secure fresh evidence to support the issuance of a warrant. They entered Martwick's wooded land from the south and soon encountered five marijuana plants in plastic pails situated along a primitive path at least 50 feet from the house.
*824¶ 47. The question before the court is whether Martwick placed the five marijuana plants within a zone around his house — the curtilage — in which he could legitimately expect privacy. The majority concludes that the curtilage ended where the woods began1 —about 20 feet from the house and at least 30 feet away from the marijuana plants. The dissent implies that the entire 1.52 acres of property, except the area of the driveway leading from the street and the area in plain view from that driveway, was curtilage.
¶ 48. All that this court must decide is whether the curtilage of the Martwick property extended more than 50 feet from the house, because the deputies never came closer than within 50 feet of the house.
¶ 49. The Fourth Amendment to the United States Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
¶ 50. Curtilage is treated as an extension of a person's house. "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,' Boyd v. United States, 116 U.S. 616, 630 (1886), and therefore has been considered part of the home *825itself for Fourth Amendment purposes." Oliver v. United States, 466 U.S. 170, 180 (1984). Courts define 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" (citations omitted). Id.
¶ 51. These factors were explicitly spelled out in United States v. Dunn, 480 U.S. 294, 301 (1987):
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
¶ 52. It is beyond dispute that "proximity" is not the only factor in determining curtilage. "The distance from a house to the area in question, while a useful factor in the analysis, is by no means dispositive since the three other factors must also be considered." State v. Hall, 719 A.2d 435, 437 (Vt. 1998). A home's curtilage often depends upon the lay of the land and what the homeowner has done with the property.
¶ 53. The dissent complains that the majority "ends the curtilage — and ends constitutional protection for the home — at 20 feet from the house, far less than 10 yards, the distance of a 'first down.'" Dissent at ¶ 5. That determination, of course, applies to the facts in this case. The reason the curtilage in this case stops short of a "first down" is that the tree line was the limit of Martwick's "forward progress." He could have pushed the curtilage the length of an entire football field if he had made the effort — if he had moved the frontier of his ungroomed, unmanaged, uncontrolled *826woods farther from his house, or taken other action to improve or assert control over his land.
¶ 54. Martwick never took control of his property-in a way that would give him an expansive curtilage. A property owner cannot reasonably argue that wooded land is "part of the home itself if the property owner does not fence the land, clear the land, or use the land for some purpose consistent with the "privacies of life."
¶ 55. In Oliver, the Supreme Court strongly affirmed the vitality of the "open fields" doctrine first announced in Hester v. United States, 265 U.S. 57 (1924). "Open fields" are the antithesis of curtilage even though they may be privately owned, because they are open areas not intimately linked to the home, either physically or psychologically. See California v. Ciraolo, 476 U.S. 207, 213 (1986).
¶ 56. The Oliver decision included a consolidated case, Maine v. Thornton, No. 82-1273, highly relevant to the case at hand. The Court stated the facts as follows:
After receiving an anonymous tip that marihuana was being grown in the woods behind respondent Thornton's residence, two police officers entered the woods by a path between this residence and a neighboring house. They followed a footpath through the woods until they reached two marihuana patches fenced with chicken wire. Later, the officers determined that the patches were on the property of respondent, obtained a warrant to search the property, and seized the marihuana.
Oliver, 466 U.S. at 174. The trial court held that "No Trespassing" signs on the property and the secluded location of the "marihuana" patches evinced a reasonable expectation of privacy. Therefore, it said that the *827"open fields" doctrine did not apply, and the Maine Supreme Judicial Court affirmed. Id. at 175. The United States Supreme Court reversed, saying:
. . . [0]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. . . .[T]he asserted expectation of privacy in open fields is not an expectation that "society recognizes as reasonable."
Id. at 179. The Court declared that "[a]n open field need be neither 'open' nor a 'field' as those terms are used in common speech. . . .[A] thickly wooded area. . .may be an open field as that term is used in construing the Fourth Amendment." Oliver, 466 U.S. at 180, n.11 (emphasis added).
¶ 57. The Supreme Court of Vermont reached the same conclusion in Hall, 719 A.2d at 437:
The Fourth Amendment has been interpreted to permit warrantless entry onto "open fields," or areas outside of the curtilage where there is no reasonable expectation of privacy. . . .Since no signs were posted, nor were other methods used, to indicate that defendant sought to exclude the public from the woods adjacent to his yard, we conclude that defendant had no expectation of privacy from a walk-on search in the wooded area behind his house.
See also Bedell v. State, 521 S.W.2d 200, 201 (Ark. 1975); State v. Webb, 943 P.2d 52 (Idaho 1997).
¶ 58. The dissent voices concern for a property owner's privacy, but it fails to articulate a test that *828distinguishes one part of Martwick's extensive woods from another. It implies that the entire wooded area of this 66,000 square-foot property (not including the area directly visible from the driveway) is protected from warrantless police investigation, even though there was nothing to mark the boundaries of the property from the property of neighbors, no signs excluding trespassers, no serious fencing, and no evidence of use of the woods except for a rough path between the ginseng sheds at the back of the lot and the house.
¶ 59. The placement of several five-gallon pails containing marijuana plants along the path was no doubt intended to conceal criminal activity and escape attention. Martwick's expectation of privacy was not, however, "legitimate in the sense required by the Fourth Amendment." Oliver, 466 U.S. at 182.2 Society is not willing to recognize all "expectations" of privacy as reasonable.3 People who own wooded property can*829not expect to grow illegal crops in their woods, free from surveillance, without doing considerably more to secure their privacy than leave their property in a natural state.
¶ 60. Martwick did not place any enclosure around his woods or take steps to discourage public entry onto his property. He did not use the woods for the kind of lawful activities intimately associated with the home. Therefore, the circuit court was correct in denying Martwick's motion to suppress evidence.
In State v. Lange, 158 Wis. 2d 609, 618, 463 N.W.2d 390 ( Ct. App. 1990), the court of appeals affirmed a circuit court finding that the "tree line surrounding Lange's garden marked his curtilage."
The officers took photographs of the Martwick house from the spot where they discovered the pails. The officers could see only the top of the house. If the officers were able to see no more than the top of the house, their "prying eyes" did not invade Martwick's privacy.
The United States Supreme Court observed that Fourth Amendment analysis hinges on two questions: "first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211 (1986) (citingSmith v. Maryland, 442 U.S. 735, 740 (1979)). For the first inquiry, Martwick no doubt manifested a subjective expectation that his illegal plants would remain concealed in privacy. For the second inquiry, whether Martwick's expectation of privacy was "reasonable," we must consider " 'whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.'" Id. at 212 (citing Oliver v. United States, 466 *829U.S. 170, 181-83 (1984)). Here, there was no infringing intrusion upon protected values because Martwick failed to extend the sanctity and privacy of his home to his land.