The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
MEMORANDUM AND ORDER Re: Motion to Suppress
On July 22, 2003, a grand jury indicted defendant Timothy
Dellas for violations of the Controlled Substances Act ("CSA"),
21 U.S.C. § 801 et seq. The two-count indictment charged
defendant with knowingly and intentionally manufacturing
marijuana in violation of 21 U.S.C. § 841 (a)(1) and §
841(b)(1)(A)(vii) and with possession of marijuana with intent to
distribute in violation of the same provisions of the CSA.
Defendant now moves to suppress evidence obtained in the search
of the property located at 3500 Elk Ridge Road in Humboldt
County, California, asserting that this search violated his
rights under the Fourth Amendment of the United States
Constitution. On August 5, 2004, the court found that defendant
had made the preliminary showing required to establish that he
was entitled to an evidentiary hearing under Franks v.
Delaware, 438 U.S. 154 (1978), and the court heard testimony
from a number of witnesses on October 14, 2004, November 5, 2004,
and November 23, 2004. Having considered the parties' arguments
and the evidence presented at the Franks hearing, the court
enters the following memorandum and order.
On June 9, 2003, the Humboldt County Sheriff's Department,
assisted by agents of the Federal Bureau of Investigation ("FBI")
and the federal Drug Enforcement Agency ("DEA"), executed a
search warrant at 3500 Elk Ridge Road, a property located in an
unincorporated area of Humboldt County, California. The warrant
authorized the search of two adjacent parcels identified as
Assessors' Parcel Numbers ("APNs") 220-301-020 and 221-240-020.
Opp'n, Exh. 1 at 1. The parcels total approximately forty acres
in area and are located in a rural residential area characterized
by steeply sloped terrain and moderate-to-heavy vegetation cover.
See generally Nov. 5, 2004 Tr. at 118-60 (Testimony of Daniel
Weaver). The warrant explicitly references three structures
located in a natural clearing on the property: a round structure
that was used as a part-time residence by defendant and a number
of other individuals ("Building 1"); a large, rectangular wooden
structure used to grow marijuana and referred to as the "grow
shed" ("Building 2"); and a small round structure that housed a
diesel generator. Opp'n, Exh. 1 at 1-2. The residence and the
grow shed are separated by a distance of approximately 120 feet.
Def.'s Exh. H ¶ 4 (Decl. of Daniel Weaver).
These structures are accessed via a private dirt road that
intersects with Elk Ridge Road approximately three-fourths of a
mile from the clearing in which the buildings are located and
ends in front of Building 1. Nov. 5, 2004 Tr. at 125-26 (Weaver
Testimony).*fn1 At the time that the premises were searched,
a locked gate located approximately 300 feet from Elk Ridge Road
blocked public vehicular access to the road. Id. However,
because no fences abutted the gate on either side, pedestrians
could access the property by walking around the gate along the
shoulder of the road. Id. at 136; Oct. 14, 2004 Tr. at 47-48
(Testimony of Wayne Hanson). Beyond the gate, three signs, the
first reading "Private Road, No Trespassing," the second reading
"Private Driveway, Keep Out," and the third reading "Beware of
the Dog," were present when an investigator retained by defendant
visited the property on June 18, 2003. Nov. 5, 2004 Tr. at 119,
137-39 (Weaver Testimony).
In addition to the structures located in the clearing, a number
of other structures not referenced in the warrant are located on
or near the property. Among these structures is a two-story,
garage-like building located approximately one-half mile from the
clearing ("Building 3"). Id. at 122, 125. Access to this
structure is provided by another private dirt road that
intersects with the road to the clearing near Elk Ridge Road.
Id. at 125. A second locked gate blocks vehicular access to
that road. Id. at 126.
At all times relevant to this motion, the parcels identified in
the search warrant were owned by Edward Brown, a resident of
Buffalo, New York. Oct. 14, 2004 Tr. at 10-17 (Testimony of
Edward Brown). At the Franks hearing, Brown testified that he
had acquired the parcels in 1998 from John Mahoney, a former
student in Brown's high school English class, in what appears to
have been a gratuitous transfer. Id. Despite being the record
owner of the property, Brown testified that he played no active
role in its management and that he did not make any mortgage
payments or pay any property taxes on the land. Id. at 17,
28-29. Moreover, while Brown also testified that he received
monthly payments in the amount of $300 that he believed to be
rental income from the property, he never learned the identity of
the tenant who was the purported source of those payments. Id.
Apparently, there was no identifiable "tenant" residing at the
property. Rather, according to defendant, the Elk Ridge Road
property was used by a "cooperative" formed for the purpose of
growing marijuana. Nov. 5, 2004 Tr. at 64 (Testimony of Timothy
Dellas). As a member of the cooperative, defendant acted as a
caretaker of the property and performed various maintenance tasks
on the premises. Id. at 66, 99, 110. Often, these duties
required that defendant stay overnight at the property, and
defendant testified that he slept on the premises approximately
two to three nights per week during the ten-month period that
preceded his arrest, typically spending the night in a bedroll on
the floor of Building 1. Id. at 71, 81. Defendant further
testified that Building 1 had "all of the appurtenances of a
household," including a fireplace, a refrigerator, and a sink,
id. at 81, and that he and other members of the cooperative
prepared meals and stored food, clothes, and other belongings in
the structure, id. at 83. However, nothing in the record
suggests that defendant or any other member of the cooperative
maintained a permanent residence at the Elk Ridge Road property.
See id. at 81-84.
The circumstances under which that cooperative obtained
permission to use the Elk Ridge Road property remain unclear.
According to defendant, one of the members of the cooperative,
who defendant identified as the de facto owner of the property,
gave the cooperative "implicit" permission to use the premises
for the purpose of growing marijuana. Id. at 90-93. However,
because defendant refused to provide the names of other members
of the cooperative despite being instructed by the court to do
so, the record is silent as to the identity of that individual.
In any event, defendant professed to have no knowledge of any
arrangement that the cooperative might have made to rent the
property from Edward Brown, id. at 90, 92, and Brown was not
aware that his property was being used by the cooperative, Oct.
14, 2004 Tr. at 24-25 (Brown Testimony).
II. Investigative Activities
While the record is unclear as to how the cooperative obtained
permission to use the Elk Ridge Road property, the fact that the
property was used for the purpose of growing marijuana is
undisputed. The Humboldt County Sheriff's Department was first
alerted to this possibility when a confidential informant
contacted Sergeant Wayne Hanson on May 1, 2003. Opp'n, Exh. 1 at
3. The informant, who Hanson identified as a local resident
concerned about the environmental impact of the diesel fuel
stored on the property, reported that she*fn2 had walked
onto the property in February or March 2003 and had observed a
70-kilowatt diesel generator used to supply power to an indoor
marijuana growing operation. Id. The resident also reported
that she smelled the odor of marijuana on the premises and that a
structure on the property (which appears to have been Building 2)
contained approximately ninety high-intensity "grow lights."
Id. However, she was unwilling to disclose how she gained
access to the interior of that structure. Id. On May 13, 2003,
Humboldt County Deputies drove to the entrance of the property
and determined its location using a handled global positioning
system ("GPS") unit. Id. at 4. Upon receipt of this
information, Bureau of Land Management ("BLM") Special Agent
Laurel Pistel determined the address corresponding to the
deputies' location to be 3500 Elk Ridge Road. Id.
At approximately 1:00 a.m. on May 30, 2003, Hanson and two
other Humboldt County Deputies, Mark Peterson and Joel Dean,
returned to the property to investigate further. Id. at 5; Oct.
14, 2004 Tr. at 46-47 (Hanson Testimony). Equipped with night
vision goggles, the deputies walked down the dirt road leading to
Buildings 1 and 2, around the locked gate, and continued up the
road for approximately three-fourths of a mile, at which point
the diesel generator located in the clearing became audible. Oct.
14, 2004 Tr. at 47-48. According to his testimony, Hanson then
walked approximately thirty to sixty feet ahead of the other two
deputies and stopped approximately 120 feet from Building 2.
Id. at 48 (Hanson Testimony); see also id. at 102, 114
(Testimony of Mark Peterson). Hanson further testified that from
that point in the road, he donned his night visions goggles,
allowing him to see what he described as an "extremely bright
light" coming from the corner of that structure. Id. at 48,
75-76 (Hanson Testimony)
As Hanson was standing in the road observing Building 2, a car
approached the deputies from the direction of Elk Ridge Road.
Id. at 50; Opp'n, Exh. 1 at 5. The deputies concealed
themselves along the side of the road until the car had passed.
Oct. 14, 2004 Tr. at 47-48 (Hanson Testimony). After the vehicle
had parked, the officers left the area. Id. According to
Hanson, he did not see any other structures on the property
during the search. Id. at 49, 78-79.
Testimony at the Franks hearing subsequently established that
the location from which Hanson claims to have observed Building 2
is located approximately 240 feet from Building 1, the residence.
Id. at 51. From that vantage point, Building 1 is obscured from
view by a hill that rises along the left-hand side of the road.
Id. at 52. In addition, testimony regarding the configuration
of the property made clear that this point is the road is located
outside of the natural clearing surrounding Buildings 1 and 2.
See Nov. 5, 2004 Tr. at 140-45 (Weaver Testimony).
III. Execution of the Warrant
Based on the evidence gathered on the night of May 30, 2003,
the Humboldt County Superior Court issued a warrant authorizing
the search of the two parcels that the officers had identified as
corresponding to the address of 3500 Elk Ridge Road. Opp'n, Exh.
1. The warrant was supported by Hanson's affidavit, which set
forth the information provided to him by the confidential
informant and recounted his own observations from the May 30,
2003 search. Id. at 3-5.
On the morning of June 9, 2003, deputies from the Humboldt
County Sheriff's Department and agents of the FBI and DEA
executed the warrant. The search of Building 2 yielded a total of
2,412 marijuana plants in several grow rooms, as well as
twenty-one pounds of packaged marijuana. Opp'n at 3. In searching
Building 1, the officers found an additional 1,593 marijuana
clones in one of the bedrooms. Id. at 3-4. Defendant was also
found in ...