Florida v. Riley Page 16

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Media for Florida v. Riley

Audio Transcription for Oral Argument - October 03, 1988 in Florida v. Riley

It was just home consumption?

Marc H. Salton:

--We are talking basically 44 marijuana plants, and I would submit that 44 marijuana plants does not make a commercial operation.

The court in Ciraolo indicated they had little difficulty determining that his back yard was curtilage, and that contained 73 marijuana plants.

There is absolutely no evidence in the record that Michael Riley ever distributed, sold, or intended to distribute or sell one ounce of marijuana.

Is there any testimony at all in the record on that point?

Marc H. Salton:

None at all.


So, all we know then is that the greenhouse was devoted to the raising of contraband?

The greenhouse had 44 marijuana plants.

Which are contraband.

Marc H. Salton:

--Which are illegal.


Do you think we should take that into consideration in deciding whether or not this complies with the curtilage rule?

Marc H. Salton:


Not the fact that it contained a plant that was illegal.

If we were dealing with the phencyclidine laboratory that's depicted in Dunn where sophisticated chemicals are used, trucks are going in and out, where we do have a large scale production of drugs--

What if there were hundreds of marijuana plants in this greenhouse?

Marc H. Salton:

--If there was a showing that we were dealing with the same type of situation in Dunn, then that would be a factor for the Court to consider.

But the mere presence of an illegal plant, I submit, does not take it out of the realm of the curtilage.

Does the record show anything else in the greenhouse except those 43 plants?

Marc H. Salton:

The record just shows 44 marijuana plants were in the greenhouse.

And our position is that it's a gardening activity; obviously an illegal activity, but still activity associated with the home.

Well, how is it associated with the home in the sense that the phencyclidine was not associated with the home.

They are both close physically.

Marc H. Salton:

Well, one of the factors in Dunn was the... I think the court's determination that the barn where the laboratory was, was outside the perimeter of the home, the fence perimeter of the home, and at least 60 yards form the home.

And determined that that was a factor to show that it was not connected or close to the home, like our greenhouse house is.

Well, do you think the result in Dunn would have been different if the phencyclidine operation in the barn were as close as this greenhouse?

Marc H. Salton:

I think it would be a factor that the Court would consider.

The Court indicated that it was not so that was more reason to consider it not part of the curtilage, but--

You think a marijuana garden is as connected with the domestic activities as an herb garden or a bunch of tomato plants or something like that?