Expectation of Privacy — Curtilage — Test — Open Fields

State v. Thomas G. Martwick, 2000 WI 5, 231 Wis.2d 801, 604 N.W.2d 552, reversing unpublished decision

For Martwick: Robert P. Rusch

Issue: Whether plants found on Martwick’s property were within his curtilage, and therefore subject to the warrant requirement, or in “open fields.”

Holding: The plants were in open fields, outside the curtilage, and therefore could be seized without a warrant.

The sheriff thought Martwick was growing marijuana on his property, but didn’t have enough information to get a warrant. Two deputies went out to spy on him, and found five marijuana plants 50-75 feet from his house, along a path leading to some ginseng sheds. ¶9. The four-factor curtilage test is found in United States v. Dunn, 480 U.S. 294, 300 (1987): proximity to home; existence of enclosure; use to which area put; steps taken by resident to protect area from observation. ¶30. Applying them here: Proximity militates (strongly, perhaps) in favor of curtilage. ¶34. During the term just past, the court found a truck to be within the curtilage of a farmhouse 200 feet away. State v. O’Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999). But that case is distinguishable, largely because it involved a farmhouse. ¶¶35-36. Martwick put up no enclosure around his house. ¶37. The plants were growing in an area not used “for anything in particular.” ¶41. Finally, the fact the plants were found among dense trees that shielded them observation from the street isn’t meaningful: Martwick did not himself plant the trees, and thus “simply has not exercised dominion over his woods, so as to make the woods an intimate part of his home.” ¶42.

The decision splits 4-3, with a concurrence by Justice Prosser, whose stress on the following factors ought to be closely reviewed, because he cast the deciding vote: “Martwick did not place any enclosure around his woods or take any steps to discourage public entry onto his property. He did not use the woods for the kind of lawful activities intimately associated with the home. Therefore, the circuit court was correct….” ¶60. See also U.S. v. Cousins, 10th Cir No.04-2218, 7/26/06 (to effect that even partial enclosure of area supports curtilage, but finding exception where “the unenclosed side is the expected path one would take to get to the sideyard”).

Review of a curtilage-determination is the familiar bipartite one: trial court findings of historical fact (in this context, the Dunn factors) are reviewed for clear error; but whether those facts establish curtilage is a matter of constitutional fact, reviewed de novo, ¶¶16-24. See also U.S. v. Cousins, 10th Cir No.04-2218, 7/26/06 (same).