COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Barrow* and Coleman 

Argued at Salem, Virginia 

BANNEY EUGENE MOORE 

v. Record No. 1649-93-3 MEMORANDUM OPINION** BY 

 JUDGE BERNARD G. BARROW 

COMMONWEALTH OF VIRGINIA MAY 9, 1995 

FROM THE CIRCUIT COURT OF DICKENSON COUNTY 

Donald A. McGlothlin, Jr., Judge 

 C. David Whaley (Anthony G. Spencer; Morchower, 

 Luxton and Whaley, on briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on 

 brief), for appellee. 

 In this appeal of a conviction for manufacturing marijuana, 

we hold that (1) the trial court erred in admitting a political 

advertisement advocating the legalization of marijuana because it 

did not tend to prove that seven months earlier the defendant 

grew marijuana; and (2) the trial court properly admitted 

evidence seized from the open fields around the defendant's 

house. 

 A month after a state trooper discovered marijuana growing 

on the defendant's property, he returned to the property, 

 

 *Judge Bernard G. Barrow participated in the hearing and 

decision of this case and prepared the opinion prior to his 

death. 

 **Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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accompanied by a game warden and a sheriff, to "eradicate" the 

marijuana. 

 Upon reaching the defendant's property, they found a locked 

gate across the road, with a "No Trespassing" sign. The road led 

to a barn approximately fifty yards away and a house about 

seventy-five yards beyond the barn. An electric wire ran between 

the house and barn. The land between the gate and the house was 

open and the surrounding area was heavily wooded. 

 From inside the gate, the defendant approached and asked 

what the officers were doing. The officers replied that they had 

reports of marijuana, asked his name and who owned the property. 

 The defendant told them the property on their side of the gate 

belonged to the gas company, but on the defendant's side belonged 

to him. He stated that they had "better have a search warrant to 

come onto his property." 

 The trooper went into a wooded area across a fence, looking 

for the plot he had seen before. He found another plot first, 

then located the known plot. Following a well-worn path, he 

located about a dozen more areas where marijuana was growing. 

The path ended close to the house. He then discovered plots one 

hundred fifty feet north of the house, one located twenty-five 

feet from the west side of the barn, and another one on a path 

thirty feet behind the barn. The marijuana was not visible from 

the roadway. He also found plants growing in pots and cups, 

along with other gardening supplies. 
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 While an investigator went to get a search warrant, officers 

took the gate off the hinges, drove onto the property, and seized 

all the marijuana plants they had discovered. The investigator 

returned with a search warrant for the house and the shed where 

they found more evidence, including seeds and plants. The 

officers seized a total of 171 marijuana plants. This evidence 

was admitted at trial over the defendant's objection. 

 Also over the defendant's objection, the trial court 

admitted testimony and evidence that, subsequent to being 

charged, the defendant had placed a political advertisement in a 

local newspaper advocating the legalization of marijuana. 

 THE POLITICAL ADVERTISEMENT

 The trial court erred in admitting evidence, because it was 

irrelevant, that seven months after his arrest, the defendant 

placed a political advertisement in a local newspaper advocating 

legalization of marijuana. A defendant's out-of-court statement 

is admissible as a party admission only if relevant. See

Alatishe v. Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 

(1991) (party admission admissible if relevant); Hogan v. 

Commonwealth, 5 Va. App. 36, 43, 360 S.E.2d 371, 375 (1987) 

(irrelevant evidence inadmissible). 

 The "admissions" contained in the advertisement do not tend 

to prove that seven months earlier, the defendant grew marijuana. 

 At most, the defendant's statement, "Pot smokers don't deserve 

to be in prison. How are we criminals?", admits marijuana use, 
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not that he might have grown or manufactured it. Further, the 

advertisement concerning "pot smokers" does not tend to prove 

knowledge and intent to grow and distribute marijuana. None of 

this evidence tends to prove that the defendant grew marijuana 

seven months before making the statement. 

 Further, the defendant's placing this advertisement does not 

tend to show "consciousness of guilt." See Hope v. Commonwealth, 

10 Va. App. 381, 386, 392 S.E.2d 830, 834 (1990) (flight or 

efforts to conceal guilt admissible). Nor is the statement 

admissible as character evidence. See Gravely v. Commonwealth, 

13 Va. App. 560, 564, 414 S.E.2d 190, 192-93 (1992) (character 

evidence of conduct occurring after offense inadmissible); 

Ginger v. Commonwealth, 137 Va. 811, 814-15, 120 S.E. 151, 152 

(1923). Therefore, we hold that the advertisement was 

inadmissible. 

 Because the evidence of the political advertisement may have 

been used by the jury to infer that the defendant was the person 

growing the marijuana or may have used the evidence when they 

recommended punishment, we hold that the error was not harmless. 

For this reason, we reverse and remand for a new trial. See

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 

911 (1991) (en banc). 

 THE SEARCH AND SEIZURE

 We hold that the trial court properly admitted into evidence 

the marijuana plants and other evidence seized from the open 
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fields near the defendant's home. 

 The Fourth Amendment provides the "right of the people to be 

secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures." The curtilage -- the "area 

around the home to which the activity of home life extends" -- is 

considered part of the home itself for Fourth Amendment purposes. 

Oliver v. United States, 466 U.S. 170, 182 n.12 (1984). 

Traditionally defined in terms of the factors used to determine 

the defendant's reasonable expectation of privacy, the curtilage 

is the "space necessary and convenient, habitually used for 

family purposes and the carrying on of domestic employment; the 

yard, garden or field which is near to and used in connection 

with the dwelling . . . whether enclosed with an inner fence or 

not." Wellford v. Commonwealth, 227 Va. 297, 302-03, 315 S.E.2d 

235, 238 (1984). 

 "Open fields," on the other hand, are not subject to Fourth 

Amendment protection. Id.; see United States v. Dunn, 480 U.S. 

294 (1987). An open field may be "neither 'open' nor a 'field.'" 

Oliver, 466 U.S. at 180, n.11. "[S]teps taken to protect 

privacy," such as gates and "no trespassing" signs, do not 

"establish that expectations of privacy in an open field are 

legitimate." Id. at 183. Because property rights are not 

determinative of Fourth Amendment protection, "the law of 

trespass [has] little or no relevance to the applicability of the 

Fourth Amendment." Id. at 183-84. 
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 In this case, the evidence supported a finding that the area 

searched was an "open field," and, therefore, that the police 

conduct did not implicate the Fourth Amendment. The areas in 

which the plots of marijuana were discovered were not part of the 

curtilage of the house, but were in "open fields." Most of the 

plots were located on the opposite side of the road from the 

house, in a wooded area surrounding the clearing in which the 

house stood. The remaining plots were in the clearing, at least 

fifty yards from the house. The connection of an electrical wire 

from the house to the barn seventy-five yards away did not extend 

the curtilage to include the barn. Further, neither the gate, 

nor the "No Trespassing" sign, nor even the defendant's 

statements to the officers that they were trespassing, created an 

expectation of privacy sufficient to trigger Fourth Amendment 

protection. Id.1

 For the foregoing reasons, the judgment of conviction is 

reversed, and the matter remanded for a new trial, should the 

Commonwealth so elect. 

 Reversed and remanded. 

 

 1Contra State v. Barnett, 703 P.2d 680, 684 (Haw. 1985) 

(holding Oliver inapplicable where owner of land told officers to 

leave the property). We are troubled by the common law criminal 

trespass element of a threatened breach of peace where, as in 

this case, the owner is actually present and directs the officers 

not to trespass. However, we are bound by Oliver's conclusion 

that property rights and trespass have "little or no relevance" 

in Fourth Amendment analysis.