dissenting. I dissent. The majority court claims Officer Lonnie Nichols’s service of a prosecutor’s subpoena on the appellee Daniel Shepherd was an egregious disregard of the law and is reason to suppress a substantial amount of fresh marijuana found in Shepherd’s house. Even if one agreed that the officer’s subpoena was invalid, that fact had nothing to do with whether Officers Nichols and Medford were legitimately on Shepherd’s premises and positioned where they could see and smell the marijuana Shepherd and appellee Torok were manufacturing inside the house.
Shepherd and Torok were operating an elaborate and sophisticated marijuana operation. They would have gotten away with the operation except, due to a mental lapse on their part, they foolishly left their garage door open.1 As a consequence, anyone who stood in the driveway outside the Shepherd home could easily see and smell the marijuana leaves that were on the floor of a room immediately off and in back of the garage. This room was brilliantly lighted by three quartz Halide growing lights. The room’s walls were painted white, the ceiling had a shiny metallic substance and the room contained timers, transformers and air circulating equipment. In immediate view and located in the garage, appellees had a large quantity of fertilizer and farming equipment.
The trial court never addressed or questioned the officers’ testimony concerning what they saw or smelled. However, because I believe what the officers could see in open view while standing on the driveway is important, I mention the details of appellees’ elaborate operation merely to show that evidence was introduced which substantiated or verified the officers’ testimony that they could actually smell the pungent odor of marijuana that emanated from the garage. Also, I have appended to my dissent a color photograph of what the officers could see from the outside driveway when they looked into Shepherd’s garage and saw a brightly lighted room with marijuana leaves strewn on the floor.2 The evidence also reflects that it was Torok’s furtive moves inside the garage that directed the officers’ attention to the open garage door and that it was only after the officer saw the marijuana-growing room that Shepherd consented to the search of his house.
In repeatedly mentioning that the officers were not legitimately on Shepherd’s property, the majority opinion avoids mentioning an entire body of Fourth Amendment case law that requires a finding to the contrary. In Katz v. United States, 389 U.S. 347 (1967), the Court said:
(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
The majority court fails to address the relevant issue as to whether the officers unlawfully intruded upon Shepherd’s reasonable expectation of privacy. In expectation of privacy terms, quite clearly it is not objectionable that an officer has come upon the land in the same way that any member of the public could be expected to do, as by taking the normal route of access along a walkway or driveway or onto a porch. See W. LaFave, Criminal Procedure § 3.2(c) (1984); State v. Corbett, 516 P.2d 487 (Or. Ct. App. 1973). In the case of United States v. Smith, 783 F.2d 648 (6th Cir. 1986), a police officer, acting on an informant’s tip, drove into the defendant’s driveway and after reaching the defendant’s house, he observed a large marijuana plant growing next to it. No signs or obstacles limited the officer’s access to the house and no effort had been made to screen off or enclose the area where the marijuana plants were growing. The court held the officer did not violate the defendant’s right to privacy by entering the driveway and proceeding to the defendant’s residence where he viewed the marijuana. See also United States v. Vent\ling, 678 F.2d 63 (8th Cir. 1982) (the court, finding an officer’s conduct of driving into defendant’s driveway where he observed tire tracks and equipment which could have been used in an unlawful activity the officer was investigating was lawful, held the defendant’s asserted expectation of privacy was unreasonable).
In the present case, no evidence exists to support the proposition that Shepherd had any expectation of privacy in his driveway; therefore, when the officers made an open-view observation of the marijuana-growing room without intruding into a constitutionally protected area, there was no search and thus no violation of the fourth amendment. If Shepherd and Torok had thought to close their garage door, the officers, when positioned in Shepherd’s driveway, would never have seen the marijuana and growing room inside the house and the fourth amendment would have protected Shepherd from the officers’ intruding inside his house. Because Shepherd’s driveway was not constitutionally protected curtilage, the officers’ stated reason for going to Shepherd’s house, viz., to serve a subpoena, is unimportant. In fact, the officers, with or without a subpoena, could have lawfully driven or walked up Shepherd’s driveway to ask him some questions. See also A.R.Cr.P. Rule 2.2. Contrary to the appellee’s argument, the subpoena’s validity or invalidity, under these circumstances, only becomes important as to whether Shepherd was required to appear before the deputy prosecutor who issued it. While I might agree the subpoena was illegally issued, that point of law has nothing to do with whether Officers Nichols and Medlock were lawfully on Shepherd’s driveway. That is the point at which the trial judge and the majority court stray from the law.
In conclusion, I mention briefly the majority’s cases and reference to the plain view doctrine. Horton v. California, 110 S.Ct. 2301 (1990), and Coolidge v. New Hampshire, 403 U.S. 443 (1971). Those case involve situations in which the police had a warrant to search a given area for specified objects and in the course of the search came across some article of incriminating character. In the situation now before us, no warrant was issued and the open view involved here involved no prior intrusion covered by the fourth amendment. See W. LaFave, Search & Seizure, § 2.2(a), at 322-78 (1987), for a full discussion concerning the difference and significance between the Coolidge plain view doctrine and that open view doctrine involved here, where an officer discovers an object which has been left in a “nonprotected area” or while standing in a “nonprotected area” sees an object within the defendant’s premises. This latter situation (or open view observation as I have labeled it) is simply distinguished by Professor LaFave, but one major distinction is covered by his quoting Judge Moylan as follows:
[T]he condition of inadvertence is certainly not operational. In surveying sidewalks, streets and gutters and in roaming the “open fields” (even as technical trespassers), the police would seem to be free to go on fishing expeditions or to go on planned reconnaissances ... in such nonprotected places, whether the viewing be inadvertent or not.
W. LaFave, Search & Seizure, § 2.2(a), at 323.
In sum, the majority court, in citing Horton and Coolidge, merely compounds its error when suggesting these holdings in some way make unlawful the officers’ presence on Shepherd’s premises. The officers were legally on a “nonprotected area,” the driveway, and their view of the appellees’ marijuana was proper under the circumstances. Therefore, there was no seizure, and thus no violation of the fourth amendment. I submit that this court should reverse the trial court’s ruling to the contrary and remand this case for trial.
Hays and Turner, JJ., join this dissent.[[Image here]]
Undisputedly, the garage door was open. The only conflict in the officers’ and appellees’ testimonies was whether it was fully or partially open.
Hopefully, the photograph I have appended to this dissent can be reproduced by the printer so as to show the brightly lighted growing room located at the back of the garage. As has been said, a picture is worth a thousand words, especially when trying to describe this elaborate marijuana farming operation. The officers also produced a video tape to reflect what they could see from the outside driveway.