¶1dissenting, with whom CARDINE, Justice, joins.
¶2I dissent to the holding by the majority that Curtis Tompkins had no expectation of privacy in the property searched by deputy sheriffs and, therefore, had no standing to object to the constitutionality of the search.
¶3In an effort to obtain probable cause of the commission of a crime, two deputy sheriffs crawled through a fence surrounding the Tompkins land and searched the enclosed property. Appellant Curtis Tompkins, his brother and his sister resided on that property in separate cabins. Curtis Tompkins argues on appeal that he had an expectation of privacy in that fenced property on which he lived with his family.
¶4It is well settled that an individual has a legitimate expectation of privacy in his home, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and in the grounds and buildings associated with his home. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Such areas deserve the most scrupulous protection from governmental invasion. Payton v. New York, supra.
¶5Furthermore, a defendant’s lack of legal title of ownership to the searched property does not diminish his reasonable expectation of privacy in that property. We held in Parkhurst v. State, Wyo., 628 P.2d 1369 (1981), that a guest in an automobile owned by another could reasonably expect freedom from state encroachment and, therefore, had standing to protest the search of the car’s trunk.
¶6The majority do not dispute these basic rules of standing, but conclude that Curtis Tompkins had no expectation of privacy in the homes of his brother and sister. The search objected to by appellant, however, is the search of the fenced property as a unit, shared by family members. The family resided on the property, enclosed it, and each member had a legitimate expectation of privacy in the living areas, including the *845greenhouse. It is unrealistic and unjust to analyze the privacy interests in this case as though the individuals involved were mere neighbors residing on distinct pieces of property.
¶7Curtis Tompkins had a reasonable expectation of privacy in the areas unlawfully invaded by officials searching for marijuana plants. Therefore, he had standing to object to the constitutionality of the search. I would have reversed the judgments entered against both Curtis Tompkins and Wayne Tompkins.
¶8dissenting.
¶9I dissent.
¶10The county court judge, on September 14, 1983, denied issuance of a search warrant for Kathleen Tompkins-Taylor’s property and suggested further investigation. On September 28, 1983, two deputies undertook further investigation — surreptitiously, at night, without permission or authority and unlawfully in trespass — by entering through a fence onto the private property of Kathleen Tompkins-Taylor. They pried back a panel on the wall of her greenhouse and peered in observing what they believed was marijuana. Kathleen was not home, and now deputies urgently needed to find Kathleen. They continued a search of the property. While searching for Kathleen, they stumbled onto Wayne’s house, also located within the fenced property. The deputy peeked in a window of Wayne’s house still looking for Kathleen and instead inadvertently observed marijuana plants.
¶11The deputies, wanting to check on potatoes that were frying, proceeded to Curtis’ house, which was also within the same fenced, enclosed area as Kathleen’s house. The deputies found the potatoes and also a small amount of marijuana at Curtis’ house.
¶12Charges against Kathleen were dismissed because of the unlawful search of her house. Wayne entered a conditional plea of guilty reserving the right to appeal the constitutional issues relating to the search of his property. We held that Rule
¶1315, W.R.Cr.P., did not permit a conditional plea to obtain an evidentiary ruling and remanded Wayne’s case for re-pleading. I concur in the opinion of the court as to Wayne.
¶14Curtis went to trial upon a charge of aiding and abetting Wayne in the possession of a controlled substance with intent to deliver. The majority opinion correctly recites that the State had the burden of proving that Wayne unlawfully possessed a controlled substance with intent to deliver and that Curtis knowingly aided and abetted Wayne in the endeavor. The State proved that Wayne unlawfully possessed a controlled substance with intent to deliver by putting into evidence Wayne’s plea of guilty and informing the jury on several occasions that the plea established the necessary elements and was proof, in the words of the prosecutor, that the “marijuana was heading for delivery.” Now we have vacated Wayne’s plea of guilty. The status of the record in Curtis’ ease now is that, without Wayne’s guilty plea, there simply is no evidence at all that Wayne unlawfully possessed marijuana with intent to deliver. Such evidence may or may not exist. These necessary elements, possession with intent on the part of Wayne to deliver, may, in the absence of his guilty plea, be incapable of proof. I would, therefore, also reverse Curtis’ conviction and remand for further proceedings.
¶15With respect to the claim of both Wayne and Curtis that results of the search should be excluded as “fruit of the poisonous tree,” both Wayne and Curtis moved to suppress the evidence seized. Their motions were denied, but the effect was to preserve the right to raise the question of unlawful search on appeal without having to invoke the doctrine of harmless error.
¶16For the reasons stated, I concur in the reversal as to Wayne but would also reverse as to Curtis.