OH5: Helicopter flyover discovery of MJ plants didn’t justify warrantless entry into curtilage; open fields search valid

The helicopter flyover of defendant’s property gave probable cause but no exception to the warrant requirement. The officers could enter up the driveway, and then consent to enter was given. The marijuana plants in the woods were in open fields. State v. Woolley, 2017 Ohio App. LEXIS 1114 (5th Dist. Jan. 30, 2017):

The spotting of the potted marijuana from the air does not change this conclusion. The curtilage enjoys greater constitutional protection, including in the matter of searches by air. “The curtilage is an area around a person’s home upon which he or she may reasonably expect the sanctity and privacy of the home. For Fourth Amendment purposes, the curtilage is considered part of the home itself.” Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The only areas of the curtilage where officers may lawfully go are those impliedly open to the public, including walkways, driveways, or access routes to the house. State v. Cook, 5th Dist. Muskingum Nos. 2010-CA-40, 2010-CA-41, 2011-Ohio-1776, ¶ 65, citing State v. Birdsall, 6th Dist. Williams No. WM-09-016, 2010-Ohio-2382, ¶ 13. Because the curtilage of a property is considered to be part of a person’s home, the right of the police to come into the curtilage is highly circumscribed. State v. Woljevach, 160 Ohio App. 3d 757, 2005-Ohio-2085, 828 N.E.2d 1015, at ¶ 29. We agree with the trial court that the potted marijuana in the rear of the house, within the curtilage, is not subject to any exception to the warrant requirement. It was unreasonable for law enforcement to enter the backyard and seize evidence without a warrant. State v. Littell, 9th Dist. No. 27020, 2014-Ohio-4654, 21 N.E.3d 675, ¶23 [aerial observation of marijuana within curtilage provided probable cause for search warrant but not authority to enter property to seize marijuana], citing State v. Mims, 6th Dist. Ottawa No. OT-05-030, 2006-Ohio-862, 2006 WL 456766, ¶ 14-26 [aerial observation of marijuana provided probable cause for search warrant but did not establish basis for warrantless search or exigent circumstances]; State v. Vondenhuevel, 3d Dist. Logan No. 8-04-15, 2004-Ohio-5348, 2004 WL 2260102, ¶ 15-20 [aerial observation of marijuana in curtilage does not constitute exigent circumstances justifying warrantless search].

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We thus arrive at the same conclusion reached by the trial court. The officers’ entry into the driveway did not require a warrant. Juanita impliedly consented to Smart’s entry into the garage to knock on the door, leading to appellant’s voluntary admissions and surrender of the dried marijuana. The helicopter “spotting” of the potted marijuana in the curtilage of the house does not provide an exception to the warrant requirement which would permit officers to enter the backyard and seize the plants. The potted marijuana was not subject to warrantless seizure. Finally, based upon the evidence in the record before us, appellant had no expectation of privacy in the marijuana growing in the woods, which was properly subject to warrantless seizure.