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UNITED STATES v. SHATES

October 27, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
NORRIS SHATES, Defendant.



The opinion of the court was delivered by: LANGFORD

 INTRODUCTION

 Defendant Norris Shates (Shates") has moved to suppress all evidence gathered during a warrantless, night-time search of his property by law enforcement officers on May 28, 1992. The information gathered was relied upon to establish probable cause in an affidavit supporting a search warrant for his property. The search warrant was issued on June 16, 1992, and resulted in Shates' arrest on drug charges.

 Shates now seeks suppression of all evidence seized as a result of the execution of the search warrant, including the 1,433 marijuana plants, on grounds that the agents obtained the information supporting probable cause for the warrant by conducting an illegal search. Specifically, Shates claims that when the agents conducted the reconnaissance and made the observations establishing probable cause, they were within the curtilage of his home, and thus were in an area in which he had a reasonable expectation of privacy. Shates therefore contends that the agents' warrantless entry into the area constituted an illegal search in violation of the Fourth Amendment.

 The government opposes Shates's motion. The agents obtained probable cause to believe that marijuana was being cultivated on the property when they smelled the strong odor of marijuana, heard the sound of a generator, and verified the direction from which the marijuana odor was coming. They made these observations in two locations: in a brushy, unmaintained, and unused area well away from the living quarters on the property, and on the road passing the property. Neither of these areas was within the curtilage of Shates's home on the property. Accordingly, no warrant was required for entry into these areas.

 Further, when the agents corroborated their observations by approaching the building housing the marijuana cultivation operation, they still did not enter the curtilage of Shates's home. The building was devoted to the purpose of conducting a commercial marijuana cultivation operation and was a substantial distance away from the trailer in which Shates was residing. Thus, the agents' observations while alongside the building were properly included in the search warrant

 PROCEDURAL BACKGROUND

 This case was referred by the District Court (Hon. Thelton B. Henderson) for findings and recommendations regarding the extent of the curtilage of the Roderick Ranch ("Ranch"). An evidentiary hearing was conducted on June 19, 20, 22 and 23, 1995. Appearing for the Government was Assistant U.S. Attorney Susan Badger. Appearing for defendant was Richard Ingram, Esq. and Ann C. Moorman, Esq. The parties submitted proposed findings and recommendations to the court

 OVERVIEW

 A determination of curtilage relies heavily on the nature and use of the property in question. Accordingly, this Court analyzes each structure on the property and the property itself in some detail.

 The extent of the curtilage is also intimately related to the activities of the law enforcement personnel during two time periods: (1) prior to the May 28, 1992 evening reconnaissance of the Ranch, and (2) on the May 28, 1992 evening reconnaissance of the Ranch. These findings of fact are discussed in some detail for both time periods to establish the state of mind of the law enforcement personnel and, therefore, the extent of the curtilage. The extent of curtilage is largely a subjective evaluation which is explained and discussed below in further detail.

 BACKGROUND

 The Ranch is a 160 acre property located on Clow Ridge Road in rural Mendocino County (RT 459:8-10, 460:1). Norris Shates resided on that property for approximately 18-30 months (January of 1991 - June 1992). (RT 459:1, corrected in Defendant's Proposed Findings at 3:7). Mr. Shates leased the property from Larry Roderick. (RT 459:11-15).

 Sometime prior to April 29, 1992, Special Agent ("S.A.") Russell (of the Mendocino County-Wide Narcotics Task Force ("MNTF")) learned from a confidential reliable informant ("C.R.I.") that there was a methamphetamine lab in operation on the Ranch. RT 2:195-197, 204-206. Sometime on or about April 27, 1992, S.A. Russell requested that Mendocino County Deputy Sheriff Dennis Miller take aerial photographs of the Ranch. (Miller Decl. P 8. RT 1:34, 2:206) On April 29, 1992, ...


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