Opinion
No. State 194.
Argued May 8, 1974. —
Decided June 4, 1974.
APPEAL from a judgment and an order of the circuit court for Grant county: RICHARD W. ORTON, Circuit Judge. Affirmed.
For the appellants there was a brief by Morse, Morse Roggensack of Lancaster, and oral argument by R. R. Roggensack.
For the respondent the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
After a jury trial, consistent with the verdicts, the defendant William H. Gedko was convicted of possessing marijuana with intent to sell and sentenced to a term of eighteen months at the state reformatory; the defendant Patricia D. Gedko was convicted of possession of marijuana and sentenced to pay a fine of $250.
On August 30, 1972, the defendants William H. Gedko and his wife Patricia were living on a 155-acre farm in the town of Castle Rock, near Muscoda, in Grant county, Wisconsin. They had resided on this farm for about two years and prior to that time had lived in Madison. The farm consisted of four 40-acre tracts arranged in tandem. The farm buildings, including the home, were approximately in the middle of the farm and were about one-half mile from County Trunk G. The land has considerable timber on it and the buildings are in a ravine and not visible from the road. The land is entirely fenced with an access gate. On the day in question the gate was open but there were at least two "No trespass" or "Keep Out" signs erected on the property line.
Sometime prior to August 30, 1972, Marion Rhodes of the Dane county sheriff's department, who is an investigator for the Madison Metropolitan Narcotics Squad, received information from an informant known as "MPD-123" that a man by the name of "Tad" was growing and harvesting marijuana on a farm near Muscoda, and that he currently had on hand a large quantity of marijuana. It was determined from police files that the nickname "Tad" was used by the defendant, William Gedko. Officer Rhodes then contacted Deputy Sheriff Perry Ahnen of the Grant county sheriff's department concerning this matter.
On August 30, 1972, Deputy Sheriff Ahnen of Grant county, Detective Rhodes of the Dane county sheriff's department, Agent Andrew Kubash of the Wisconsin department of justice, and Detective Frank McCoy, of the Madison metro narcotics squad proceeded to the Gedko farm to attempt to corroborate what the police informant had told Rhodes. Officer Ahnen testified that at the time they did not feel that they had enough evidence to obtain a search warrant. They parked their car on County Trunk G and proceeded on foot through the fields to a point near the farmhouse. They had to climb at least two fences on their way. They positioned themselves in the trees along a hillside overlooking the farm buildings at a distance of 100 to 150 yards from the house.
At the time that the officers arrived at their positions overlooking the farmhouse, an airplane piloted by two other officers, who were in radio communication with the officer on the ground, was making low altitude passes over the farmhouse. Their purpose was to detect, if they could, any marijuana growing on the farm.
Mr. Gedko was walking around outside the house. When the plane was making its last pass Mrs. Gedko ran out of the house and the officers heard her yell at Mr. Gedko to inquire as to whether he knew who the plane belonged to and that she had called Truax Field and learned that the plane was registered to the government. He yelled back, "Get the marijuana off the top of the refrigerator." He then ran to one of the sheds and came out carrying two burlap sacks filled with some material which he hid in the woods. Mrs. Gedko returned to the house and came back out carrying a brown paper bag. By this time he was making a second trip out of the shed, this time carrying a bundle of stalks. A conversation ensued as to what to do with the "stuff" and he said, "We'll pile it up and burn it."
At this point the officers left their hiding places in the trees, shouted "police officers," fired two shots into the air and ran down the hill and seized the materials. A field check revealed the bags seized contained marijuana (this was stipulated to at trial). The defendants were then placed under arrest and charged with possession of marijuana with intent to sell.
A search warrant was then obtained and the house searched. A small additional quantity of marijuana was found together with peyote buttons, cigarette papers and a smoking water pipe.
The two bags seized contained 37 pounds of marijuana and the stalks weighed 25 pounds. There was sufficient marijuana to make 17,000 cigarettes or lids with a street value of $8,000 to $12,000.
The defendants made a motion to suppress the evidence seized on the ground that it was a search in violation of their fourth amendment constitutional rights. A hearing was had on the matter and by order the motion was subsequently denied.
The case proceeded to trial by jury whereupon the jury found William Gedko guilty of possession of marijuana with intent to sell and Patricia Gedko guilty of possession of marijuana.
The defendants contend that the conduct of the police in this case constituted an unlawful search in violation of the fourth amendment. The facts of this case are markedly similar to Hester v. United States (1924), 265 U.S. 57, 58, 59, 44 Sup. Ct. 445, 68 L.Ed. 898, wherein the United States Supreme Court stated:
"The witnesses whose testimony is objected to were revenue officers. In consequence of information they went toward the house of Hester's father, where the plaintiff in error lived, and as they approached saw one Henderson drive near to the house. They concealed themselves from fifty to one hundred yards away and saw Hester come out and hand Henderson a quart bottle. An alarm was given. Hester went to a car standing near, took a gallon jug from it and he and Henderson ran. One of the officers pursued, and fired a pistol. Hester dropped his jug, which broke but kept about a quart of its contents. Henderson threw away his bottle also. The jug and bottle both contained what the officers, being experts, recognized as moonshine whiskey, that is whiskey illicitly distilled; said to be easily recognizable. The other officer entered the house, but being told there was no whiskey there left it, but found outside a jar that had been thrown out and broken and that also contained whiskey. While the officers were there other cars stopped at the house but were spoken to by Hester's father and drove off. The officers had no warrant for search or arrest, and it is contended that this made their evidence inadmissible, it being assumed, on the strength of the pursuing officer's saying that he supposed they were on Hester's land, that such was the fact. It 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. This evidence was not obtained by the entry into the house and it is immaterial to discuss that. The suggestion that the defendant was compelled to give evidence against himself does not require an answer. The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination 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 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. 4 Bl. Comm. 223, 225, 226."
The defendants argue that Hester, supra, is no longer valid and that the concept of the "open fields" doctrine has been modified by Katz v. United States (1967), 389 U.S. 347, 88 Sup.Ct. 507, 19 L.Ed.2d 576, so as to exclude from the concept of open fields those areas where the person had a reasonable "expectation of privacy." However, as pointed out by Mr. Justice HEFFERNAN in the recent case of Conrad v. State, ante, p. 616, 218 N.W.2d 252, the limitation of Katz is not on the concept of "open fields" but rather on those areas traditionally thought to be protected by the fourth amendment such as one's home and the curtilage surrounding it. The opinion concludes that, "The viability of Hester was not weakened by the holding of Katz," Conrad, supra, and is controlling here.
Thus, under Hester and Conrad, supra, there was no violation of the defendants' fourth amendment rights.
At oral argument the defendants cited a recent California case, People v. Sneed (1973), 32 Cal.App.3d 535, 108 Cal.Rptr. 146 . The case is not consistent with our opinion in Conrad, supra, and we are not bound by it. The principle is well established that while the various states may not establish standards that are below those announced by the United States Supreme Court in federal constitutional rights issues, they may expand those rights if they so choose. See Lego v. Twomey (1972), 404 U.S. 477, 489, 92 Sup. Ct. 619, 30 L.Ed.2d 618. Conrad, supra, is consistent with the federal rule and we adhere to it.
The defendant William H. Gedko contends the evidence is not sufficient to sustain a conviction of possession with intent to sell.
This issue was raised in motions after verdict in the trial court. The trial court thoroughly reviewed and considered the evidence. It was its conclusion there was ample credible evidence in the record to sustain the jury's finding. We agree.
The quantity of marijuana seized was about 60 pounds, with a value of $8,000 to $12,000. This quantity was sufficient to produce about 17,000 marijuana cigarettes. It is hardly reasonable to believe that these defendants would have that amount in their possession for their own personal use. Other probative evidence was discussed by the trial court — the activities and antics of the defendants when they were fearful that they might be apprehended by hiding some and attempting to burn the rest of the marijuana in an effort to destroy incriminating evidence. The fact that marijuana was found in several forms — some raw, some processed, some made into cigarettes and some in peyote buttons; and Patricia's statement to the officers that she had, in effect, told "Tad" that he could get into trouble if he kept "messing" with this stuff.
We are of the opinion that a reasonable jury could draw inferences from this evidence that convinced it beyond a reasonable doubt that defendant William H. Gedko had this marijuana in his possession with intent to sell. By the Court. — Judgment and order affirmed.
See State v. Christel (1973), 61 Wis.2d 143, 159, 211 N.W.2d 801.