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October 27, 1995


The opinion of the court was delivered by: LANGFORD



 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


 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


 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.


 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, Deputy Sheriff Miller took those photographs listed as Government Exhibits 16(a)-(e). (Miller Decl. P 8. RT 1:34-37).

 Prior to May 28, 1992, S.A. Russell and the informant went to the western edge of the Ranch, and from Clow Ridge Road, the informant identified a structure with a green tar paper roof as the methamphetamine lab (this structure later proved to be the "grow structure" where marijuana was grown). (Russell Decl. PP 9-10.)

 On May 28, 1992, at approximately 10:00 p.m., S.A. Russell led a group of S.A.'s from the Department of Justice, Bureau of Narcotics Enforcement ("DOJ"; "BNE") on a surveillance of the Ranch in an attempt to locate a hidden methamphetamine lab. (Russell Decl. P17.) While seven officers went up Clow Ridge Road, only S.A.'s Russell, Calvert, Nishiyama and Sypnicki breached the outer fence and entered the Ranch by crossing a dilapidated fence next to a gate at the south-east corner of the property. (Govt's Exhs. 1, 7(a)-(b).) The activities of the other agents are not relevant, since they waited at the road and did not participate in the reconnaissance. Based on the information discovered that evening and on the information from the C.R.I., Deputy Sheriff Miller obtained a search warrant on June 16, 1992. The warrant was executed at approximately 7:00 a.m. on June 26, 1992. Agents seized 1,433 marijuana plants in various stages of growth. Norris Shates was subsequently arrested and charged under 21 U.S.C. ยง 841(a)(1), cultivation of marijuana, and possession of marijuana with intent to distribute, under the same statute. CHRONOLOGY April 29, 1992 -- Deputy Miller takes first aerial photos. (Govt's Exhs. 16 (a)-(e).) May 28 -- Russell and other S.A.'s visit the Ranch. June 16 & 18 -- Deputy Miller takes a second set of aerial photos. (Govt's. Exhs. 6(a)-(f).) June 26 -- Warrant executed.


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