Petition — Lashmett v. Illinois

3n the

Supreme Court of the United States

DrEcEMBER TERM 1979

DAN LASHMETT,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME—COURT—OF—ILLINGIS-AND--THE —

APPELLATE COURT FOR THE FOURTH

DISTRICT OF ILLINOIS

Rosert G. Heckenkamp, Esq.

HECKENKAMP, AND SimHauser, P.C.

522 East Monroe Street

Springfield, Illinois 62701

(217) 528-5627

Attorney for Petitioner

The Scheffer Press, Inc.—(312) 263-6850

INDEX

TABLE OF CONTENTS

PAGE

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IS cae ceased alia craiisebnanenisincensSoemienisncicsseanintinisiocecsnses 2

as saiiabanegaineiisincsasineenee 2

Constitutional and Statutory Provisions Involved ....

I a iar dian dciinecshdacebbbenbusansnasineeeosests 3

Reasons for Granting the Wit ..............ccssccsccscsseeseeees 6

eels cass sacecendiesnibbiicanniniiniosionrsseusetscssevenes 11

lala siahe cated iianassashobinninlcdeniseneesetgseesnnovecs la

aa at acalnimnsdiniedsesbansbinnatitiencevecrerseseee 3a

rie aiialeididiiniatiscdideniesseentsionerervessue 15a

PE Ti itattheedditiddatinnicntticndecessnsndavsasesasamasnisetscoseseesens 17a

TABLE OF CITATIONS

CASES

Air Pollution Variance Board of the State of Colorado

v. Western Alfalfa Corporation, 416 U.S. 851 .... 6,7

Fullbright v. U. S., 392 F.2d 432 (10th Cir. 1968) .... 9

A ME sais scscacacsniichisiansdpcnséecnecconesee 6

BN ic tanccienssetesesvcosecnscccncsnescescceses 8

People v. Kushmer, 43 Tll. 2d 334 (1969) .......ccceeeesees 7

U. S. v. Davis, 423 F.2d 974 (5th Cir. 1970) ............ 9

U. S. v. Fluker, 543 F.2d 709 (9th Cir. 1976) ............ 9

U. S. v. Holmes, 521 F.2d 859; on rehearing 537 F.2d

TT COU I, NOTE) ariciewiticcenscsecscsscciccesssceseccccsssccseneneee 10

Wattenburg v. U. S., 388 F.2d 853 (9th Cir, 1968) .. 9

In THE

SUPREME COURT OF THE UNITED STATES

DECEMBER TERM 1979

No.

DAN LASHMETT,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS AND THE

APPELLATE COURT FOR THE FOURTH

DISTRICT OF ILLINOIS

Petitioner respectfully prays that a Writ of Certiorari

issue to review the decision and judgment of the Ap-

pellate Court for the Fourth Judicial District of the

State of Illinois, from which Leave to Appeal was denied

by the Supreme Court of Illinois on October 1, 1979.

OPINIONS BELOW

The decision of the Supreme Court of Illinois is ap-

pended hereto as Appendix A. It is unreported.

The opinion of the Appellate Court for the Fourth Dis-

trict of the State of Illinois is reported at 71 Ill.App.3d

429 and is appended hereto as Appendix B.

i

JURISDICTION

The judgment of the Supreme Court of Illinois was

entered on October 1, 1979. That judgment denied Peti-

tion For Leave to Appeal from the decision of the Ap-

pellate Court for the Fourth District of the State of Illi-

nois, which reversed the trial court’s judgment and opin-

ion quashing a search warrant and suppressing evidence.

The appeal from the trial court’s order was taken pur-

suant to Illinois Supreme Court Rule 604(a)(1). Juris-

diction of this Court is invoked under Title 28 U.S.C. See-

tion 1257(3).

QUESTIONS PRESENTED

1) Whether the Fourth Amendment guarantee against

unreasonable search and seizure can apply to a rural

farm-yard area in which a citizen may have a reasonable

expectation of privacy.

a) Whether a citizen can have a reasonable expec-

tation of privacy in an area extending 100 yards

from his farm residence, which is within the same

fenced enclosure as the residence and other areas and

facilities maintained exclusively for private use, and

which is not visible from any surrounding public

areas or neighboring property, or whether such area

falls per se within the “open-fields” doctrine.

2) Whether Fourth Amendment protection will toler-

ate an intrusion by an officer in the middle of the night,

over a fence, across a field and over another fence, to

reach a farm yard enclosure to examine an item of farm

machinery, as the informational basis to support the

issuance of a search warrant.

—§ 8 —

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the Fourth, Fifth and

Fourteenth Amendments to the Constitution of the United

States, and the pertinent provisions of Article 1, Sec-

tion 6 of the Constitution of the State of Illinois, and

Supreme Court Rule 604(a)(1) of the State of Illinois

(Ill.Rev.Stats. Ch. 110A, Sec. 604) appear in Appendix

C hereto.

STATEMENT

Petitioner was the owner of a 160-acre farm in Scott

County, Illinois, which was the object of a search war-

rant issued upon the basis of information obtained when

a Sheriff and his deputy went onto said farm in the mid-

dle of the night.

It appeared that certain farm implements, including a

John Deere tractor, combine and plow, and an Interna-

owners to the Sheriff of Scott County. After a ground

search of the county and other methods of investigation

proved fruitless, the Sheriff chartered an airplane to con-

duct an aerial search. While flying at 2400 feet above Pe-

titioner’s farm, he observed the familiar green and yellow

of John Deere and red of International farm equipment,

which bore a resemblance to, but could not be identified

as, the missing equipment, and was otherwise the usual

array of farm equipment familiar to the area.

After discussing the matter with the State’s Attorney,

and concluding that the aerial search did not provide

sufficient information to obtain a warrant (as conceded

and found in the trial court and concurred in by the Ap-

pellate Court), the Sheriff and a deputy, some 14 hours

ery Aas

later, at 2:00 A.M. on April 12, 1978, drove to the public

road adjacent to Petitioner’s farm, where they parked

and climbed over a fence and crept onto the Petitioner’s

farm. They crossed a field and found a John Deere corn-

head in a ravine, but could not find a serial number or

other identifying characteristic. They then climbed over

the gate of a second fence and entered the enclosure sur-

rounding the area which included the Petitioner’s dwell-

ing and other outbuildings. At a point approximately 100

yards from, and within ready view of, Petitioner’s dwell-

ing, the officers found a John Deere tractor bearing a VIN

plate matching that of a tractor from which parts had

been also reported as missing to the Sheriff of a neigh-

boring county. The tractor and the area in which it was

located was not within public view, or visible from the

surrounding public area, or neighboring property. It was

located near the end of a drive-way which connected Pe-

titioner’s house with his hog shed, bee hives, other out-

buildings, and a private fishing and swimming pond, all

of which were within the same enclosure, with no fence,

gate or other barriers standing between the house and

any of the structures or facilities of this enclosure. Peti-

tioned and his family used the area exclusively for their

own, or private, purposes.

Upon the basis of this information, the Sheriff applied

for and obtained the search warrant in the early morn-

ing hours of April 12, 1978, after leaving his armed dep-

uty to stand guard on the premises.

Petitioner, after being indicted for Theft, filed a Pre-

trial Motion to Quash the Search Warrant and Suppress

the evidence obtained thereunder, on the grounds that his

rights under the Fourth Amendment to the Constitution

of the United States and Article 1, Section 6 of the Con-

a oe

stitution of the State of Illinois had been violated. Upon

hearing by the trial court, the warrant was quashed and

the evidence suppressed. The facts, as set forth above,

were uncontradicted.

The trial court indicated that whether the test of the

search was the Defendant’s “expectation of privacy” or

the “curtilage” exception to the “open-fields” doctrine, the

search was unreasonable (Appendix D). On appeal by

the State, pursuant to [llinois Supreme Court Rule 604

(a)(1), the Appellate Court held that the “open-fields”

doctrine applied and therefore the trial court’s finding

was contrary to the manifest weight of the evidence.

a ses

REASONS FOR GRANTING THE WRIT

The reasoning of the Appellate Court that this case

falls within the open-fields doctrine as pronounced by

Hester v. U.S., 265 U.S. 57, and Air Pollution Variance

Board of the State of Colorado v. Western Alfalfa Cor-

poration, 416 U.S. 851, is based upon a misconception of

that doctrine as applied in those cases and is con-

trary to the decisions of this Court and the U.S. Courts

of Appeals dealing with Fourth Amendment rights.

That the open-fields doctrine of Hester v. U.S., and

Air Pollution Variance Board of the State of Colorado

v. Western Alfalfa Corporation, is still viable is not in

question. The question is whether that doctrine overrides

the “reasonable-expectation-of-privacy” test as set forth

in Katz v. U.S., 389 U.S. 347.

In Hester, a Prohibition Act case decided in 1924, the

revenue agents went toward the house of the defendant’s

father, where they concealed themselves 50 to 100 yards

away and saw Hester come out and hand another a quart

bottle. Upon sounding an alarm, the defendant took a

gallon jug from a nearby car and ran across his father’s

land. A pistol fired, Hester dropped the jug, breaking

the bottle, but a portion of its contents remained, which

was identified as moonshine whiskey (said to be easily

recognizable). Defendant asserted that his rights under

the Fourth and Fifth Amendments were violated. After

disposing of all contentions, the Court had this to say

at page 59:

“The only shadow of a ground for bringing up the

case is drawn from the hypothesis that the exami-

ai PG:

nation of the vessels took place upon Hester’s father’s

land. As to that, it is enough to say that, apart from

the justification, the special protection accorded by

the 4th Amendment to the people in their ‘persons,

houses, papers, and effects’ is not extended to the

open fields.”

In Air Pollution Variance Board of the State of Colo-

rado v. Western Alfalfa Corporation, 416 U.S. 851, it was

daylight when an inspector entered the yard of respon-

dent’s plant to make a Ringelmann Test, which requires

a trained inspector to stand in a position where he has

an unobstructed view of the smoke plume, observe the

smoke, and rate it according to the opacity scale of the

Ringelmann chart. This test is generally sanctioned for

use in measuring air pollution. After stating that the

inspector had sighted what anyone in the city who was

near the plant could see in the sky—plumes of smoke—

the Court, citing Hester, refused to extend the Fourth

Amendment to sights seen in “the open fields.” The Court

went on to say “the field inspector was on respondent’s

property but we are not advised that he was on premises

from which the public was excluded.” (Italics ours)

In 1969, the Supreme Court of the State of Illinois

recognized the open-fields doctrine of Hester. People v.

Kushmer, 43 Tll.2d 334, involved a violation of a munici-

pal code declaring the storing of certain described ar-

ticles in a residential zone to be a nuisance. The defen-

dant had accumulated on the unenclosed yard adjacent

to his house a number of automobiles and at least four

truckloads of auto parts, iron, metal drums and barrels,

tires, twigs, lumber and miscellaneous junk. The articles

stored on defendant’s lot fit the description of those pro-

scribed by the ordinance. The condition of the premises

“could be observed from the street, sidewalk, and parti-

cularly from the alley abutting the rear of the property.”

The Court had this to say at page 338:

“The condition of the area was exposed to public

view and plainly visible from beyond the premises.

The officials in entering upon the land merely viewed

and photographed a condition already observed by

them from public areas. There was no probing into

private places and no violation of the appellant’s

privacy or his home.”

No fault is found with these cases nor with application

of the principle within the sphere of factual situations

matching those involved. However, the undisputed facts

of the Petitioner’s case are in no way similar. This is not

a case where an incident took place on another’s farm,

or in the presence of law enforcement officers who engaged

in a pursuit nor is it a ease of an officer going onto a

portion of premises open to the public, during daytime

hours, nor is it a ease of recognizable articles within

ready view from a public way or surrounding area.

In the interim between the Hester and Air Pollution

Variance Board cases, Katz v. U.S., 389 U.S. 347 was de-

cided. The Court, in that case, at page 351, said:

“What a person knowingly exposes to the public,

even through in his own home or office, is not a sub-

ject of Fourth Amendment protection (citing cases)

but what he seeks to preserve as private, even in an

area accessible to the public may be constitutionally

protected (citing cases).”

This Court thus rejected any magical formula for the

determination of a constitutionally protected area, but

with the same brush of the pen held that an open field

is not necessariiy outside the constitutionally protected

area,

witha:

Prior to Katz, the “curtilage” test was long recognized

as defining the area protected within the language of the

Fourth Amendment. As then said in Wattenburg v. U.S.,

388 F.2d 853 (9th Cir. 1968), and quoted in U.S. v. Fluker,

543 F.2d 709 (9th Cir. 1976):

“Interpreting Katz ... (I)t seems to us a more ap-

propriate test in determining if a search and seizure

adjacent to a house is constitutionally forbidden is

whether it constitutes an intrusion upon what the

resident seeks to preserve as private even in an area

which, although adjacent to his home, is accessible

to the public... .”

In a pre-Katz case where the “curtilage” test was ap-

plied, the Court, in Fullbright v. U.S., 392 F.2d 432 (10th

Cir. 1968), defined curtilage as follows:

“Whether the place searched is within the curtilage

is to be determined from the facts, including its

proximity or annexation to the dwelling, its inclusion

within the general enclosure surrounding the dwell-

ing, and its use and enjoyment as an adjunct to the

domestic economy of the family.”

Thus, in dealing with an intrusion upon a person’s

property, the definition of curtilage is not wholly dis-

similar _rom the definition of the area which a resident

seeks to preserve as private.

In another intrusion ease, U.S. v. Davis, 423 F.2d 974

(5th Cir. 1970), the defendant was placed under arrest

at his son’s home. He bolted and was pursued to his own

home, whereupon he turned to face his captors and

brandished a pistol. He was met by a fusillade of four

shots and disposed of his pistol and surrendered. Later

that night, the F.B.I. agent drove to defendant’s house to

search for the missing pistol, which was discovered in

ais SD

the yard of defendant’s home. The Court said at page

977:

“. . . where police officers trespass in order to secure

the view, we have not hesitated to find a search...

The decisions have repeatedly stressed and empha-

sized the concept that the underlying purpose of the

Fourth Amendment is to protect and shield citizens

from unwarranted intrusions into their private do-

main. Here we are dealing with a severe invasion

of privacy by the intrusion of officers into the cul-

tilage of a private home at nighttime . . . They drove

their automobile into the curtilage of his home and

proceeded, unannounced, to look for the weapon. It

was found immediately, according to the testimony

of one officer, because of the reflection of the porch

light on the surface of the gun. This was an uncon-

stitutional search in the classic sense.”

And, in U.S. v. Holmes, 521 F.2d 859, (affirmed on en

bane rehearing, 537 F.2d 227) (5th Cir. 1976) an officer

trespassed to peer into a shed within a curtilage. Citing

the Davis opinion above, the Court summarily stated at

page 869:

“When a law enforcement agent trespasses solely

to unearth evidence of a crime, he has no right to

be in the position to have that view.

“We are not dealing with an accidental sighting from

outside the curtilage or from within while on another,

lawful purpose. See Hester, supra, 265 U.S. 57, 44

S.Ct. 445, 68 L.Ed. 898. They entered solely to secure

evidence of crime which would support a warrant for

a later and thorough search of the area, and they did

so with no basis except speculation for believing

any illegal activity was there occurring. This action,

condemned in Brock* fares no better here,”

* Brock v. U.S., 223 F.2d 681

—

As the trial court found, whether the curtilage or rea-

sonable-expectation-of-privacy test is applied, the search

was unreasonable and in violation of Petitioner’s consti-

tutional rights. Under the evidence of the case, any other

finding would have been against the manifest weight. Un-

questionably, the area was within the curtilage and it is

uncontradicted that the Petitioner enjoyed the privacy

of the area, that he surrounded it with the same fenced

enclosure as his house and separated it from the public

road by still another fence. Under such circumstances he

indeed had a reasonable expectation of privacy in the

area. The unlawful intrusion or trespass into that area

by the Sheriff and his deputy to make their search is like-

wise not open to question.

CONCLUSION

To accord Petitioner his rights under the Constitution

of the United States, a Writ of Certiorari should issue to

review the judgment and opinion of the Appellate Court

for the Fourth District of the State of [llinois, made final

by the denial of leave to appeal to the Supreme Court of

the State of Illinois.

Respectfully submitted,

Rospert G. HecKENKAMP

HECKENKAMP AND SimHauser, P.C.

522 East Monroe Street

Springfield, Illinois

Attorney for Petitioner

—la—

APPENDIX A

ILLINOIS SUPREME COURT

Clell L. Woods, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 1, 1979

Heckenkamp and Simhauser, P.C.

Attorneys at Law

522 East Monroe Street

Springfield, Ill. 62701

No. 52265 — People State of Illinois, respondent, vs.

Dan Lashmett, petitioner. Leave to appeal, Appellate

Court, Fourth District.

The Supreme Court today denied the petition for leave

to appeal in the above entitled cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

SUPREME COURT, STATE OF ILLINOIS

October 1, 1979

Court Re-Convened at 2:00 P.M.

The following list of cases on the leave to appeal docket,

showing disposition thereof, was handed to the clerk:

No. 51714 —...

No. 519038 —...

No. 51904 — ...

No. 51916 —...

No. 51917 —...

. 91925 —...

. 51926 —...

. 51927 —...

. 51928 —...

. 51929—...

. 91930 —...

. 92256 —...

- 02257 — ...

. 52258 —...

. 52260 — ...

. 52261 — ...

. 92264 — ...

. 52265 — People State of Illinois, respondent, vs.

Dan Lashmett, petitioner. Leave to appeal, Appellate

Court, Fourth District.

Petition for leave to appeal denied.

. 52267 —...

. 52268 — ...

. 02269 — ...

. 52270 —...

. 52271 — ...

. 02272 —...

=— Ja, —

APPENDIX B

STATE OF ILLINOIS

Appellate Court

Fourth District

General No. 15192

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appeilant,

v.

DAN LASHMETT,

Defendant-A ppellee.

Agenda No. 79-71

Appeal from Circuit Court Seott County

No. 78-CF-5

Mr. JUSTICE GREEN delivered the opinion of the

court:

The State appeals from an order of the circuit court of

Scott County granting defendant Dan Lashmett’s motions

to quash search warrant and to suppress. This appeal

raises the question of the constitutionality of an aerial

observation of defendant’s property and subsequent entry

onto defendant’s land for the purpose of gathering ud-

ditional information. Information acquired in this manner

was then used to obtain a warrant to search defendant’s

property.

The complaint for search warrant filed April 12, 1978,

by the Scott Company sheriff before a circuit judge of that

county stated the following: On March 16 and 18 and

April 1, 1978, the Scott County sheriff’s office received

reports that farm equipment was missing from four dif-

ferent Scott County farms, namely, a John Deere model

4020 diesel farm tractor, a red International 20 foot 6 inch

wide folding wing disc, a John Deere semi-mounted plow

ead

and a John Deere model 6600 hillside combine with a

4-row cornhead. The sheriff drove through Scott County

looking for the missing machinery and instructed his de-

puties to do likewise. He also placed notices in county

newspapers. On March 22, 1978, he questioned a local resi-

dent who stated that on March 10, 1978, he observed a

John Deere model 4430 or 4630 farm tractor pulling an

International fold-up wing type wheel dise ‘‘being the

same type dise as reported missing’’ on a gravel road

north of Winchester waiting to cross highway U.S. 36 and

that the person driving the tractor was or looked like a

person he knew to be the son of Dan Lashmett. The sher-

iff also interviewed another person who stated that he had

observed a John Deere model 4430 farm tractor on the

Dan Lashmett farm on Friday afternoon, March 10, 1978,

and at other times prior to that date. The complaint

recited why the sheriff considered those people to be re-

liable informants. On April 11, 1978, the sheriff received

an offense report from the Pike County sheriff that parts

from a John Deere model 4020 diesel farm tractor, in-

cluding a vehicle identification plate, were missing from

that county.

The complaint further stated that on April 11, 1978, the

sheriff ‘‘chartered an airplane and flew over the entire

territory of Scott Count, Illinois in search of equipment

matching the general description of the said missing farm

machinery.’’ During this flight, he observed on the prem-

ises of Lashmett Industries ‘‘what appeared to be a red

wheel dise similar to the above-described missing wheel

disc.” He also observed a green tractor he believed to be

a John Deere model 4020 or 4010 in an open feedlot on

the farm of Dan Lashmett. Also on the Lashmett farm, in

places not visible from the public road, he observed a 4-

row John Deere cornhead, a large model John Deere com-

bine, a red wheel dise and a semi-mounted plow. After the

above-described aerial investigation, the sheriff personally

went on Lashmett’s property and observed the identifica-

tion plate on the John Deere model 4020 farm tractor

= on

which bore the same vehicle identification number as the

identification plate missing from Pike County.

On the basis of the sheriff’s complaint, a warrant to

search defendant’s farm including lands, feedlots, timbers,

fields, and all nonresidence buildings thereon was issued

at 7:15 a.m. on April 12, 1978. It authorized seizure of an

Iniernational wheel disc and the following John Deere

machinery: a 4020 diesel farm tractor, 6600 hillside com-

bine, 4-row cornhead, semi-mounted plow, and parts to a

4020 tractor. Pursuant to the warrant, the tractor, disc,

plow, combine and cornhead were seized as well as a

3-point John Deere fasthitch and a hood for a John Deere

4020 tractor.

Defendant was then indicted on 6 counts of theft of

property with a value over $150, each count charging the

theft of a different piece of farm machinery.

Defendant’s motion to quash search warrant and motion

to suppress alleged that the search and seizure of the

above items pursuant to the warrant was illegal and vio-

lated his constitutional rights, in part, because information

supporting the complaint for search warrant was obtained

by an illegal trespass on defendant’s land.

The State argues that even if the entry onto defendant’s

land constituted an illegal search, the aerial observation

did not, and that the complaint for search warrant, minus

any information obtained by entry onto defendant’s land,

was sufficient to establish probable cause to issue a

search warrant. No Illinois cases involving aerial investi-

gations have been called to our attention, but we do not

deem the aerial observation here to have been an illegal

search. When the sheriff observed the farm machinery

from the airplane, he was in a place where he had a right

to be and the machinery was im clear view from that

vantage point.

Defendant cites People v. Sneed (1973), 32 Cal. App.

3d 535, 108 Cal. Rptr. 146, where the California appellate

court ruled that an observation from a helicopter of mari-

—

juana being grown on property rented by defendant was

an unconstitutional search. The court noted that the heli-

copter activity was ‘‘manifestly exploratory’’ in nature

and that its position 20-25 feet above the ground was an

‘“‘obtrusive invasion of privacy’’ and probably illegal. In

dictum, though, the court stated that defendant would

certainly have no reasonable expectiation of privacy ‘‘from

airplanes and helicopters flying at legal and reasonable

heights.’’ (32 Cal. App. 535, 542-43, 108 Cal. Reptr. 146,

151.) Here, at the hearing on the motions to quash and to

suppress, the sheriff testified without objection that the

airplane was flying 2400 feet above the ground.

Assuming, arguendo, that the information obtained as

a result of the entry onto defendant’s land can be sepa-

rated from the other allegations of the complaint for

search warrant (contra, United States v. Nelson (6th Cir.

1972), 459 F. 2d 884), we do not believe the remaining

information was sufficient to support the issuance of a

search warrant. Absent the incriminating allegation that

the tractor on defendant’s property had a vehicle identi-

fication plate bearing the same number as a plate reported

missing from an adjacent county, the complaint alleged

only that the sheriff had observed on defendant’s proper-

ty, an assemblage of farm machinery of the same general

type and brand as those reported stolen. The record does

not indicate that any of the missing equipment would not

be used in normal farming operations and no doubt many

farmers in the area owned John Deere and International

Harvester implements. Nor do we consider anything un-

usual or unique about this combination of equipment.

We believe that the information acquired by the sheriff

by his entry onto defendant’s land was necessary to sup-

port the issuance of the search warrant in this case. The

constitutionality of the sheriff’s actions in obtaining this

information presents a much more difficult question.

Without objection, the sheriff and one of his deputies

testified that at 2 a.m. on the morning following the aerial

saree

—_— Pe

observation, one of the deputies drove the sheriff and

Deputy Bryan to the northeast corner of defendant’s

property which bordered a county road. The sheriff and

Bryan climbed or stepped over a fence and walked across

defendant’s field to a waterway where they saw the corn-

head. The sheriff did not know where the serial number

was and could not find it. They then walked 100 yards or

less to the tractor, crossing another gate or fence in the

process. The tractor was located near a hog shed, near the

end of a private driveway which ran from defendant’s

house out to the hog shed, other outbuildings and a private

fishing and swimming pond. The entire area was sur-

rounded by a fence and there were no gates or fences

between the house and the tractor. Both the sheriff and

defendant testified that the tractor was 100 to 125 yards

from the house. The sheriff saw that the number on the

tractor’s vehicle identification plate matched one that had

been reported missing from Pike County. They then went

back to the squad car and returned to town. The sheriff

contacted the State’s Attorney and sent the two deputies

back to defendant’s farm to keep it under surveillance.

The sheriff stated that to his knowledge, neither he nor

any of the deputies had asked defendant or his family for

permission to be on the property.

The State argues that the sheriff’s entry onto defen-

dant’s land to obtain additional information was permis-

sible under the doctrine of ‘‘open fields’’ first enunciated

by Justice Holmes in Hester v. United States (1924), 265

U. S. 57, 68 L. Ed. 898, 44 S. Ct. 445. There, revenue

officers acting on information approached the house where

defendant lived. Seeing a man drive up, they concealed

themselves and saw defendant come out and hand him a

quart bottle. An alarm was given, defendant took a gallon

jug from a nearby car, and both men ran. As they did so,

they dropped or threw away the containers, which broke.

The officers recognized the contents as moonshine whiskey.

Qutside the house, they also found a broken jar contain-

ing whiskey. On appeal, the Supreme Court rejected de-

a= §Q, ==

fendant’s argument that failure to exclude the testimony

of those officers violated his rights under the Fourth and

Fifth Amendments,

‘Tt is obvious that even if there had been a trespass,

the above testimony was not obtained by an illegal

search or seizure, The defendant’s own acts, and those

of his associates, disclosed the jug, the jar and the

bottle — and there was no seizure in the sense of the

law when the officers examined the contents of each

after it had been abandoned, * * * The only shadow

of a ground for bringing up the ease is drawn from

the hypothesis that the examination took place upon

Hester’s father’s land, As to that, it is enough to say

that, apart from the justification, the special protec-

tion accorded by the Fourth Amendment to the people

in their ‘persons, houses, papers, and effects,’ is not

extended to the open fields, The distinction between

the latter and the house is as old as the common law,”’

(Emphasis added.) 265 U.S, 57, 58-59, 68 LL, Bd, 898,

900, 44 8, Ct, 445, 446,

The ‘open fields’’ doctrine was followed in Martin vy.

United States (Sth Cir, 1946), 155 F. 2d 508, where in-

vestigators acting on information hid behind a shack and

watched defendants through large eracks in the wall, The

defendants left the shack and approached their car which

was parked near the porch, When lights from a passing

car illuminated the area, one defendant put the jug he had

been carrying on the ground under the ear, As he walked

away, he was placed under arrest, The jug was found to

contain tax-unpaid whiskey, Applying the open fields

doctrine, the court on appeal ruled that the officer's

examination of the jug did not violate the Fourth Amend-

ment because the jug was in an unenclosed area around

the shed,

The doctrine was also recited in Janney v, United States

(4th Cir. 1953), 206 F. 2d 601, where revenue agents hid

near a hog pen and observed defendant and another man

au 9g, a=

carry cartons of the type used in the illicit liquor trade

from a pickup parked inside a barn to a car just outside,

A fence located about 100 yards away from the house

separated the agenta from the house, the barn and other

outbuildings, The court ruled that seizure of the eartons

was made incident to a lawful arrest and that the agents’

observations as well as other knowledge they already

possessed constituted probable cause for the warrantless

arrest,

An analogy to the doctrine was discussed in United

States v, Romano (2d Cir, 1964), 330 F, 2d 566, where

revenue agents acting on information entered an indus-

trial complex through a hole in the fenee and proceeded

through a series of unoccupied and unleased buildings

until they came to an alleyway where they detected the

odor of fermenting mash coming from a nearby building,

They then obtained a search warrant on the basis of that

information plus information obtained by another agent

who stood outside the complex and used binoculars to

observe the inside of the building, Although the court up.

held the search on the basis that defendants did not have

sufficient interest in the ground over which the agents

trespassed, the court also noted that the fourth amendment

protection does not extend to unoceupied buildings just

as it does not extend to open fields,

This state has recognized the doetrine in City of Deca-

tur v. Kushmer (1969), 48 TIl, 24 884, 253 N.V.2d 42h,

where the defendant asserted that city officials unlawfully

invaded his land without a search warrant and took pho-

tographs of his property, The land in question was a large

unenclosed yard adjacent to defendant’s house where de-

fendant had aceumulated serap metal, old autos and other

junk, The condition of the premises could he observed

from the street, sidewalk and an alley at the rear of the

property, The court ruled,

‘The activities by the appellee’s agents did not

constitute a search, ‘A search implies a prying into

— 10a —

hidden places for that which is concealed, and it is

not a search to observe that which is open to view, A

search implies an invasion and quest with some sort

of force, either actual or constructive.’ (People vy.

Marvin, 358 Ill, 426, 428; People v. McCracken, 30

Tl, 2d 425, 429; People v. Davis, 33 Til, 2d 184, 188.)

The condition of the area was exposed to public view

and plainly visible from beyond the premises, The of-

ficials in entering upon the land merely viewed and

photographed a condition already observed by them

from public areas, There was no probing into private

places and no violation of the appellant’s privacy or

his home, [/Tester, Janney, Martin.] Wurther, the fact

that the officials may have trespassed by entering

the land would not, of itself, transform their viewing

into an unreasonable search, [Hester, Janney, Roma-

no.| Under the cireumstances here we find no in-

fringement of the appellant’s constitutional assurance

against unreasonable searches and seizures,’’ 48 Tl.

2d 334, 338-89, 253 N.B.2d 425, 428,

Fairly recently, in Air Pollution Variance Board vy.

Western Alfalfa Corp, (1974), 416 U.S, 861, 40 L. Bd, 2d

607, 94 8, Ct, 2114, the United States Supreme Court in-

dicated that the ‘‘open fields’’ doctrine still has viability,

An inspector for the Colorado Department of Health en-

tered the outdoor premises of respondent without its con-

sent or knowledge in order to conduct a visual pollution

test of the smoke emitted from respondent’s chimneys.

The Supreme Court stated that this was not a violation

of respondent’s Fourth Amendment rights, that the in-

spector had sighted plumes of smoke which anyone in the

city near the plant could see in the sky. The court ruled

that although the inspector was on respondent's property,

the court was not advised that he was on premises from

Which the public was excluded, Tt ruled that the inapector

was well within the ‘‘open fields’? exception to the Fourth

Amendment approved in Hester,

a

— lla —

Decisions of the Federal Cireuit Courts of Appeal, how-

ever, have placed some limitations on the doetrine, Begin-

ning with Rosencrane v. United States (lat Cir, 1966),

356 F, 2d 310, those courts have ruled that the area of a

farm protected by the Fourth Amendment includes not

only dwelling house but also the ‘‘eurtilage,’’ ic, the

immediately surrounding area of yards, barns, outbuild-

ings, ete. In Mullbright v, United States (10th Cir, 1968),

392 I", 2d 432, 435, the court quoted from Care v, United

States (10th Cir, 1956), 231 I. 2d 22, 25, to define the

term curtilage as follows:

‘Whether the place searched is within the curtilage

is to be determined from the facts, including its prox-

imity or annexation to the dwelling, its inclusion

within the general enclosure surrounding the dwelling,

and ite use and enjoyment as an adjunct to the do-

mestic economy of the family.’’

In United States v, Davis (5th Cir, 1970), 423 F, 2d

974, 977-78, the defendant ran when placed under arrest

and was pursued to his own home where he brandished

a pistol, The officers fired at him, he threw down the pis-

tol and surrendered, Hours after the arrest, an officer

returned to defendant’s property to search for the pistol

and found it in the yard, The distriet court ruled that the

gun had been found ‘‘in plain view.’’ The court on appeal

reversed ruling that the first consideration is whether the

officer had the right to be in a position to have the view,

It stated, ‘‘The government will not be heard to say that

the ‘plain view’ rule applies where the observing officer

has physically invaded a constitutionally protected area in

order to secure the view.’’ (Mmphasis added.)

In United States v. Fluker (9th Cir, 1976), 543 FY, 2d

709, the court was required to determine whether a Federal

law requiring its agents to give notice of their authority

and purpose and be denied admission before they can

break down a door as applied to apartment houses had

reference only to the doors of individual apartments or

— >

to the outer door to the building as well. In ruling that

it was applicable to the outer door there because the

building had only three apartments and the outer door

was kept locked with only the landlord and tenants having

keys, the court noted that it had held in Wattenburg v.

United States (9th Cir. 1968), 388 F. 2d 853, that the ‘‘cur-

tilage’’ test was no longer applicable in determining the

extent of the area protected by the Fourth Amendment.

Interpreting Katz v. United States (1967), 389 U.S. 347,

19 L. Ed. 2d 576, 88 S. Ct. 507, the earlier opinion stated:

** *{T]t seems to us a more appropriate adjacent test

in determining if a search nad seizure adjacent to a

house is constitutionally forbidden is whether it con-

stitutes an intrusion upon what the resident seeks to

preserve as private even in an area which, although

adjacent to his home, is accessible to the public.’ ’’ 543

F. 2d 709, 716, quoting 388 F. 2d 853, 857.

In United States v. Holmes (5th Cir. 1975), 521 F. 2d

859, an officer trespassed to peer into a shed near a farm

house. Citing its opinion in Davis the court stated:

*“When a law enforcement agent trespasses solely to

unearth evidence of a crime, he has no ‘right to be in

the position to have that view.’’’ (521 F. 2d 859,

869.)

The court later stated,

*“The government would have us ignore the character

of the Moody property. Whatever precautions a home-

owner in an urban area might have to take to protect

his activity from the senses of a casual passerby, a

dweller in a rural area whose property is surrounded

by extremely dense growth need not anticipate that

government agents will be crawling through the under-

brush by putting up signs warning the government

to keep away.’’ 521 F. 2d 859,870.

—13a—

Here, the search of the tractor to determine its serial

number took place some 100 to 125 yards from the dwell-

ing house but was near a hog house. In Hester the

searches and seizures apparently took place just outside

a farm house. Unlike in Kushmer the land here was en-

closed by an outer fence and an inner fence both of which

the sheriff had crossed to get to the tractor. Also unlike

in Kushmer the property could not be seen plainly from

adjacent public ways but it could be seen without intrusion

upon defendant’s land by flying over in a plane at a

reasonable and legal height. Of course, the serial numbers

on the equipment could not be seen from the air but it

is notable that in Air Pollution Variance Board the smoke

in question was plainly visible from off the defendant’s

property but the government agent had to go on the prop-

erty to take the incriminating test of the smoke.

The search of the tractor took place in an area farther

removed from the dwelling than the search on any of the

rural properties described in Davis and Holmes. It cannot

be said to be adjacent to the home as in Wattenburg.

Although the tractor was close to a shed, defendant’s pho-

tographic exhibits indicate that the shed was isolated from

the other farm buildings, negating that it was part of the

enclosure surrounding the dwelling or ‘‘an area used as

an adjunct to the domestic economy of the family.’’ Al-

though the sheriff climbed over two fences to get to the

tractor, it was not shown that he had been required to

sneak through thick underbrush as in Holmes. The dis-

tance between the shed and the house and the open nature

of the land between also negates an expectation of privacy

by defendant in the area of the tractor.

The trial court indicated that whether the test of the

search was the defendant’s expectation of privacy or the

curtilage exception to the ‘‘open fields’’ doctrine the

search was unreasonable. We disagree.

In Hester, the United States Supreme Court considered

the farmyard to be an open field. Hester has never been

sitll i

overruled and was cited with approval in Air Pollution

Variance Board. The opinion in that case stated that the

agents actions were ‘‘well within the ‘open fields’ excep-

tion to the Fourth Amendment approved in Hester.’’ (416

U. S. 861,865, 94 S. Ct. 2114, ........ , 40 L. Ed. 2d 607,611.)

The Illinois Supreme Court adopted the ‘‘open fields’’

doctrine in Kushmer permitting entry onto a defendant’s

land to take pictures at closer range than could have been

taken from outside the land. The more recent cases of the

various circuit courts of appeal cited by defendant are not

binding precedent upon us. More importantly, the searches

involved in those cases concerned different circumstances.

None involved the search taking place as far as 100 yards

from the dwelling house in question. No case describing

the ‘‘open fields’’ doctrine indicates that it concerns only

searches in areas completely isolated from buildings.

We determine the trial court’s finding that the instant

search was violative of defendant’s Fourth Amendment

rights to be contrary to the manifest weight of the evi-

dence. The order suppressing the evidence is reversed and

the case is remanded to the trial court for further pro-

ceedings.

Reversed and remanded.

MILLS and TRAPP, JJ., concur.

—15a—

APPENDIX C

CONSTITUTION OF THE UNITED STATES

AMENDMENT IV - SEARCH AND SEIZURES

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 af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT V - CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE PRO-

CEES; JUST COMPENSATION FOR PROPERTY.

No person shall be . . . nor be deprived of life, liberty,

or property, without due procees of law;...

AMENDMENT XIV - CITIZENSHIP; PRIVILEGES

AND IMMUNITIES; DUE PROCEES; EQUAL PRO-

TECTION.

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due procees of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws, ;

— 1l6a—

CONSTITUTION OF THE STATE OF ILLINOIS

ARTICLE 1, SECTION 6 - Searches, Seizures, Privacy

and Interceptions.

The people shall have the right to be secure in their

persons, houses, papers and other possessions against un-

reasonable searches, seizures, invasions of privacy or in-

terceptions of communications by eavesdropping devices

or other means. No warrant shall issue without probable

cause, supported by affidavit particularly describing the

place to be searched and the persons or things to be seized.

ILLINOIS REVISED STATUTES

Chapter 110A, Section 604.

Appeals from Certain Judgments and Orders.

(a) Appeals by the State.

(1) When State May Appeal. In criminal cases the

State may appeal only from an order or judgment the

substantive effect of which results in dismissing a charge

for any of the grounds enumerated in section 114-1 of the

Code of Criminal Procedure of 1963; arresting judgment

because of a defective indictment, information or com-

plaint; quashing an arrest or search warrant; or suppres-

sing evidence.

— an

ee eo ne eS oe

—17a—

APPENDIX D

(Report of proceedings, Trial Court, pp. 103-108)

The Court: Gentlemen, as you know before I came

over here, I had the Clerk forward to me the Motion to

Dismiss that had been filed, along with the other plead-

ings; and I also had an opportunity to do some indepen-

dent research as to the law, and many of the cases that

both counsel cite are the cases that I also read before

coming over here. So, I am somewhat familiar with the

propositions that both of you have talked about to the

Court.

I have now had the further benefit of the testimony

that has been adduced in this case, and I think the Court

is in a position at this time to render an opinion.

This doctrine that we have been talking about, the doc-

trine of open fields, and as it was announced in the Hes-

ter case, I think we go back to the original doctrine, and

I am going to start with that proposition. Or, no, I am

going to talk about the proposition you didn’t have to

argue, Mr. Cherry, and that is the description that Mr.

Heckenkamp says is vague and inaccurate and can not

stand.

” ” * ” *”

But, getting back to the search warrant itself. The com-

plaint upon which it was issued, I think it is correct that

at one time the ancient doctrine of open field was to the

effect that if it wasn’t involved in the domestic use of the

farmer, then it wasn’t, it did not violate the 4th Amend-

ment. That was a harsh doctrine because it permitted the

— 18a —

city dweller to have his garage protected against unrea-

sonable search and seizure, but the farmer could not have

his barn protected because it was not used for domestic

purposes. And, I think the Courts have gotten away from

the Hester case, and they started that in the Katz case;

and it is really based upon a different principle, as this

Court views it, it’s not based upon what is curtilage, but

where you have a right to reasonably expect the privacy,

the right of privacy, and when you read the Olmstead

case, the dissent in there by Justice Brandeis on the right

of privacy, I think we come to appreciate that what he

was saying as to what is one of the most important con-

stitutional rights we have, possibly, is our right of pri-

vacy; and this is what so many people are feeling so

closely today, with computer systems that can violate all

of our rights of privacy, if there aren’t some restrictions

on it.

In this particular case, looking at the facts that were

taken before this Court today, and looking at the affidavit

or the complaint made by the Sheriff at the time that he

asked for his search warrant, I recognize, and I think

all of us that are involved in the Judicial System and jus-

tice, do not expect police officers, on the job that they

have to do, to be able to sit back and casually or studi-

ously read all of the cases to decide whether or not a

search warrant should be issued. They have to take what

they got in a hurry and come to the Courts and get a

warrant. And, the judge, as indicated here, issued it at

5:00 o’clock, or 6:00 o’clock in the morning, and I am

sure he didn’t have an opportunity to spend two or three

weeks reading cases, so that’s why we have the provision

in the law that provides that after the search warrant is

served that the defendant can come in and file a motion

eS ee

— 19a —

to quash; and some distance away from the excitement

and the immediacy of the action, the Court can look at

it and determine whether or not anyone’s constitutional

rights have been violated.

As this Court read the Complaint for Search Warrant

and heard the testimony of Sheriff King, he said that he

had information that there had been some purported farm

equipment disapeared in Scott County; he searched in

all of the highways and couldn’t find any farm equipment;

he then went to the airways, and while he was in the air,

he saw over the defendant’s farm equipment; he testified

that he could not’ tell what this, if this equipment was

actually the one that was missing, or this equipment that

was missing; and even in his affidavit and complaint for

search warrant, he stated that he observed a green trac-

tor he believed to be a John Deere Tractor sitting in a

feed lot; he also observed a four row John Deere corn-

head for a Join Deere combine; he said that these were

not visible from the public road, but were only visible by

the, from the air. Now what does the Sheriff do next?

He lands that plane, and I know he landed it before 2:00

A.M., because he saw this in the day light; there was

no evidence here that there were spot lights coming out

of the plane; but at 2:00 A.M. he goes back to the farm

with a deputy to check this out. Now we can call that,

and I forgot what counsel termed it, it wasn’t a search,

but it was an investigation; but a rose is a rose and a rose

can not change names. The Sheriff, I am sure, with the

deputy didn’t go out to this farm at 2:00 A.M. to confirm,

he went out to make a search to determine whether or

not this equipment was in fact the equipment he was

looking for. To get there, as shown by, on Defendant’s

Exhibit 4, he stopped on the main highway, he crossed

=

a fence, he crossed another fence, and he was on the prop-

erty of this defendant. He left a deputy there to watch

it, or subsequently had a deputy go out there to watch

to see that this property would not be removed. The

deputy, Mr. Bryan said that where he was standing to

watch this property was close to the residence, about

100 to 125 yards; he further testified that from where

he was situated he could see the defendant’s house. On

this point now, those factual matters would lead this

Court to but one conclusion, that this defendant, where

this property was believed to be in a place of privacy,

that whether you look at it as part of the curtilage, or

whether you look at it as part of his right to believe

that he intended to have privacy, whichever way you

look at it, this Court can only conclude that there was a

warrantless search by the police and that the fruit of

that warrantless search caused a search warrant to be

issued; and there was an unreasonable search and seizure;

and, therefore, this Court has no alternative but to grant

the Motion to Quash and to Suppress the Evidence which

is the fruit of this search; and that will be the ruling of

the Court; and the docket entry will include the remarks

that this Court has made.