CRIMINAL: Search and seizure; curtilage: PHILLIPS V. COMMONWEALTH (COA 7/18/2008)


CRIMINAL:  Search and seizure; curtilage
DATE RENDERED: 7/18/2008

Steven Phillips appeals from a conviction of cultivation of marijuana, trafficking in marijuana, possession of drug paraphernalia, and possession of marijuana. No sentence was imposed for possession of marijuana as it was a lesser included offense of the trafficking charge. Phillips waived jury sentencing and accepted a three year concurrent sentence on both the trafficking and cultivation charge. The Commonwealth cross appeals on the suppression of testimony regarding the identity of seeds found during the search of Phillips’ property. CA affirmed the judgment and sentencing of the trial court.

U.S. v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), established that: [c]urtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a “correct” answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of Fourth Amendment protection. Areas and structures within the curtilage of a home are afforded the same protection as the dwelling itself, whereas those outside the curtilage are merely “open fields” for the purpose of Fourth Amendment analysis. “[T]he government’s intrusion upon [] open fields is not one of those “unreasonable searches” proscribed by the text of the Fourth Amendment.” CA found the existence of a locked gate at the edge of Appellant’s property insufficient in light of the totality of the circumstances to establish the barn as curtilage.

The samples were properly taken at random, and the remaining samples were visually verified as marijuana. Accordingly, CA found no error in the trial court allowing the testimony that all plants seized were marijuana. TC propertly permitted the testimony of the police officers as to the approximate weight of the plants when lifted. The testimony was not offered as expert opinion but rather as lay opinion, which under KRE 701 is admissible if it is a rationally based perception helpful to the understanding of a fact in issue, in this case the total weight of the seized marijuana.

The record reflects that the trial court properly considered the probative value of the testimony that the seeds were in fact marijuana seeds versus the prejudicial effect of that testimony. Accordingly, CA found that it was within the court’s discretion to permit questioning regarding the seeds generally and to admit the seeds marked as “Panama Red” but to exclude the officer’s testimony that the seeds were in fact marijuana seeds when no seeds had been tested for that fact.

Digested by Scott C. Byrd

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