                  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.
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.



     1
      Contra 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.



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