No. 83-67 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

198 3 

STATE OF MONTANA, 

Plaintiff and Respondent 

LARRY BENNETT, 

nefendant and Appellant 

Appeal from: District Court of the Thirteenth Judicial District 

In and For the County of Yellowstone 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Towe, Ball, Enright 6 Mackey, Billings, Montana 

Gregory R. Todd, Argued 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena.,Montana 

Harold F. Hanser, Argued, County Attorney, Billings, Montana 

Submitted: May 31, 1983 

Decided: July 14, 1983 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendant, Larry Bennett, appeals an order of the 

District Court of the Thirteenth Judicial District denying 

his motion to suppress dated October 28, 1982, and the 

district court's order finding Bennett guilty of criminal 

possession of dangerous drugs. 

On August 5, 1982, Deputy Sheriff George Jensen received 

any anonymous tip that Bennett was growing marijuana in his 

garden. At 6:00 a.m. on August 6, 1982, Jensen drove to 

Bennett's house. From a county road adjacent to Bennett's 

property, Jensen put a 60 power scope on the top of his truck 

and spotted marijuana plants growing in Bennett's garden. 

Bennett owned 19.7 acres of property. Bennett's house, 

garage and garden were adjacent to the county road and 

bounded by a barbed wire fence. The fence extended 175 feet 

from north to south and 228 feet from east to west. No 

evidence was presented to indicate the distance from the 

garden to the buildings. The area surrounding the fenced 

portion of Bennett's property was open fields. 

Jensen testified that he was standing on the county road 

about 60 meters from the marijuana when he used the spotting 

scope. While he could not identify the substance as 

marijuana without the scope, he could see the~garden from the 

county road with his naked eye and determined that, ". . . 

they did observe to have some qualities of wha.t a marijuana 

plant may look like. But I couldn't say for certain if they 

were or not." 

Thereafter, Jensen applied for and received a search 

warrant. On the afternoon of August 6, Jensen and two other 

detectives went to Bennett's home to conduct the search. No 
one answered the doors. One of the detectives heard a noise 

and investigated the house. From a basement window in 

Bennett's house they saw what they believed to be marijuana 

growing in a pot in the basement. A second warrant was 

obtained permitting a search of the basement. When the 

search was executed the officers seized about 600 grams of 

marijuana from both locations. In August of 1982, Bennett 

was charged with criminal possession of dangerous drugs, 

section 45-9-102, MCA. Pursuant to section 46-13-302, MCA, 

he moved for suppression of all evidence seized in connection 

with the charge. The District Court denied Bennett's motion. 

After a nonjury trial, the District Court found him guilty of 

criminal possession of dangerous drugs and ordered a two-year 

suspended sentence. Bennett appeals the order denying his 

motion to suppress and the district court's order finding him 

guilty of the charged crime. We affirm both orders of the 

District Court. 

The issue presented for review in this case is whether 

the use of a spotting scope to identify marijuana growing in 

Bennett's garden violates his reasonable expectation of 

privacy. 

The State concedes that should the first warrant be 

struck, the subsequent warrant would be invalid. Should the 

first warrant be sufficient, the evidence seized pursuant to 

that warrant is sufficient to sustain the felony conviction 

without examination of the second warrant. Therefore, we 

need only address the sufficiency of the first warrant. 

Bennett asserts the State violated the Fourth Amendment 

of the United States Constitution and Article 11, Section 11, 

of the Montana Constitution which mandates that law 

enforcement have probable cause to search. 
We have held that a warrantless search is per se 

unreasonable, unless it falls within one of the defined 

exceptions to the warrant requirement. State v. Hyem (1981), 

Mont . , 630 P.2d 202, 205, 38 St.Rep. 891, 893. 

However, when the State does not violate an individual's 

legitimate expectation of privacy, an unreasonable search has 

not taken place. United States v. Knotts (1983), U.S. 

, 103 S.Ct. 1081, 75 L.Ed.2d 55; State v. Charvat (1978), 

175 Mont. 267, 269, 573 P.2d 660, 661-2. 

In 1967 the United States Supreme Court determined that 

application of the Fourth Amendment depends on whether the 

person invoking its protection can claim that government 

activities "violated the privacy upon which he justifiably 

relied." Katz v. United States (1967), 389 U.S. 347, 353, 88 

In Smith v. Maryland (19791, 442 U.S. 7351 99 S-Ct2577, 61 L.Ed.2d 220, the United States Supreme Court further 

explained these principles: 

"Consistently with Katz, this Court uniformly has 

held that the application of the Fourth Amendment 

depends on whether the person invoking its 

protection can claim a ' justifiable, ' a 

'reasonable,' or a 'legitimate expectation of 

privacy' that has been invaded by government 

action. [Citations omitted.] This inquiry, as 

Justice Harlan aptly noted in his Katz concurrence, 

normally embraces two discrete questions. The 

first is whether the individual, by his conduct, 

has 'exhibited an actual (subjective) expectation 

of privacy,' 389 U.S. at 361--whether, in the words 

of the Katz majority, the individual has shown that 

'he seeks to preserve [something] as private.' Id., 

at 351. The second question is whether the 

individual's subjective expectation of privacy is 

'one that society is prepared to recognize as 

'reasonable,' Id., at 361--whether, in the words of 

the Katz majority, the individual's expectation, 

viewed objectively, is 'justifiable' under the 

circumstances. [Citations omitted.]" Smith, 442 

U.S. at 740-741 (footnote omitted). 
This Court has affirmed this analysis. State v. Hyem 

(19811, Mon t . , 630 P.2d 202, 38 St.Rep. 891. 

Courts have consistently held that there is no 

legitimate expectation of privacy in "open fields." In 

Hester v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 

L.Ed. 898, the United States Supreme Court held that the 

special protection accorded by the Fourth Amendment to the 

people in their "persons, houses, papers and effects" is not 

extended to open fields stating that the distinction between 

an open field and a house is as old as common law. 

This Court has had several occasions to recognize this 

doctrine. State v. Perkins (1969), 153 Mont. 361, 366, 457, 

P.2d 465; State v. Johnson (1967), 149 Mont. 173, 179, 424, 

P.2d ; State v. Arnold (1929), 84 Mont. 348, 358, 275 P. 

757; State v. Ladue (1925), 73 Mont. 535, 539, 237 P. 495. 

In Perkins we stated: ''In our view the District Court 

was correct. There was no search, the calves were in a 

corral in open sight. A corral can be likened to an open 

field. . . Thus evidence obtained from viewing a corral may 

be used as direct evidence in a prosecution. [Citations 

omitted] .I1 Perkins, 153 Mont. at 366, 457 P.2d at 467-468. 

We have further held that: ". . . evidence obtained 

from an open field, farmland, or a corral may be used as 

direct evidence in a prosecution." Charvat, 175 Mont. at 

269, 573 P.2d at 661. 

Where no reasonable expectation of privacy exists, there 

is neither a "search" nor a "seizure" within the 

contemplation of the Fourth Amendment of the United States 

Constitution or Article 11, Section 11 of the Montana 

Constitution. Id. at 269. 
Similarly, in the present case, the marijuana was in an 

open field. Therefore, there was no search and the evidence 

obtained was properly used as direct evidence in this 

prosecution. 

In a recent case the United States Supreme Court held 

that a beeper device, planted in a container of chloroform, 

used to track the activities of the defendant, did not invade 

any legitimate expectation of privacy a.nd thus there was 

neither a "search" nor a "seizure" within the contemplation 

of the Fourth Amendment. Knotts, 103 S.Ct. at 1087. 

The Court determined: 

"Nothing in the Fourth Amendment prohibited the 

police from augmenting the sensory faculties 

bestowed upon them at birth with such enhancement 

as science and technology afforded them in this 

case. . . Insofar as respondent's complaint appears 

to be simply that scientific devices such as the 

beeper enabled the police to be more effective in 

detecting crime, it simply has no constitutional 

foundation. We have never equated police 

efficiency with unconstitutionality and we decline 

to do so now." Knotts, 103 S.Ct. at 1086. 

In Knotts, the container of chloroform was placed in an 

automobile and eventually used to manufacture a controlled 

substance. The detectives tracked the automobile to 

defendant's cabin where the drugs were being manufactured. 

The United States Supreme Court determined that the use of 

the beeper, even when the automobile was out of sight, was 

legitimate. Similarly, the use of the scope to detect 

marijuana that may have been difficult to see from the county 

road was not improper. 

The use of binoculars a.nd other visual enhancement 

devices has been determined to be legitimate: 

". . . the police may observe people or places 

aided through use of a variety of tools which 

materially enhance or assist the senses, without 

first having to secure a search warrant . . . 
'Binoculars. . . contribute to surveillance without 

violation of the Fourth Amendment in the usual 

case. " United States v. Dubrofsky (9th Cir. 

1978), 581 F.2d 208, 211. United States v. Allen 

(9th Cir. 1980), 675 F.2d 1373, 1380. 

In United States v. Lee (1927), 274 U.S. 559, 47 sect. 

746, 71 L.Ed. 1202, the United States Supreme Court stated: 

"But no search on the high seas is shown. The 

testimony of the boatswain shows that he used a 

searchlight. It is not shown that there was any 

exploration below decks or under hatches. For 

aught that appears, the cases of liquor were on 

deck and, like the defendants, were discovered 

before the motor boat was boarded. Such use of a 

searchlight is comparable to the use of a marine 

glass or a field glass. It is not prohibited by 

the Constitution." 274 U.S. at 563. 

Bennett voluntarily exposed the marijuana to public 

viewing by growing it in a garden near a county road open to 

scrutiny. 

Bennett argues that he had a subjective expectation of 

privacy because he placed corn in an L-shape tract around the 

marijuana and because the marijuana could only be seen with 

the aided eye. 

We find no merit to this contention. Bennett may or may 

not have had a subjective expectation of privacy, but we are 

not convinced that his subjective expectation of privacy is 

one that society is prepared to recognize as reasonable. 

The corn did not obstruct Jensen's view of the 

marijuana; the plants were stationary and open to public 

viewing anytime of the day or night; his garden was 

surrounded by open fields; Bennett had merely strung a barbed 

wire fence around the area and Jensen was able to view the 

marijuana from a county road. The plants wre not in an area 

where an expectation of privacy exists. Therefore, a search 

warrant was not required in this case. 
We affirm the conviction of Larry Bennett. ,/3" & .2&*3, 

Justice 

We Concur: 

3AH.ec4. 

Chief Justice