United States District Court, N.D. California
February 8, 2005.
UNITED STATES OF AMERICA, Plaintiff,
TIMOTHY DELLAS, Defendant.
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.
I. The Premises Searched
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 Building 1, where he had been sleeping in the living
area of that structure, and was taken into custody. Id. at 4.
Later that day, Hanson left the clearing around Buildings 1 and
2 and drove in the direction of Elk Ridge Road until he found the
road leading to Building 3. Oct. 14, 2004 Tr. at 64-65 (Hanson
Testimony). He walked around the locked gate blocking vehicular
access to that road and continued until he arrived at Building 3.
Id. at 68. Using a handheld GPS unit, Hanson relayed the GPS
coordinates of his location to BLM Special Agent Pistel. Id. at
66; Pistel Decl. ¶ 2. Pistel then manually plotted these
coordinates on a 7.5-minute United States Geological Survey
("USGS") topographic quadrangle and concluded that Building 3 is
located on one of the parcels identified in the search warrant,
APN 220-301-020. Pistel Decl. ¶ 2; Oct. 14, 2004 Tr. at 129-35
(Testimony of Laurel Pistel). In reliance on Pistel's conclusion,
Hanson and the other officers proceeded to search the structure.
Id. at 89. The search yielded a total of 1,651 marijuana plants
as well as a diesel generator, high-intensity grow lights, and
other equipment typically associated with an indoor marijuana
growing operation. Opp'n at 4.
Pistel's conclusion that Building 3 is located on one of the
parcels identified in the search warrant has since been called
into doubt. At the hearing held on November 23, 2004, Barry
Kolstad, a licensed land surveyor, testified that he conducted a
field survey of the relevant parcel boundary on July 3, 2004.
Nov. 23, 2004 Tr. at 39 (Testimony of Barry Kolstad). In
conducting that survey, Kolstad located the surveyor's monuments
erected in 1972, when the property was originally subdivided, and
in 1990, when a lot line adjustment was filed with the Humboldt
County Assessor's Office. Id. Based on the location of these
monuments, Kolstad concluded that Building 3 was located
approximately 166 feet north of the northern boundary of APN
220-301-020 on one of two parcels owned by Yvonne Schad. Id. at
11-12, 15. Kolstad also raised a number of objections to the
methodology that Pistel had employed in determining the location
of the boundary between the Brown and Schad properties, citing
the limited precision of the handheld GPS unit that Hanson used,
the limitations of the assessor's parcel maps on which Pistel
relied, and the crudeness of the method that Pistel used to
compare these two sources of data (i.e., manually plotting the
data on a topographic map). Id. at 37-40.
IV. Defendant's Motion to Suppress
On July 6, 2004, defendant moved to suppress the evidence
gathered in the June 9, 2004 search of the Elk Ridge Road
property on the ground that the evidence was obtained in
violation of the Fourth Amendment of the United States
Constitution. After hearing the testimony summarized above, the
court invited the parties to submit supplemental briefs in the
form of proposed findings of fact and conclusions of law. In his
supplement brief and in the moving papers originally filed prior
to the evidentiary hearings, defendant argues that the
warrantless search conducted on the night of May 30, 2003
violated his Fourth Amendment right to be free of unreasonable
searches and seizures and thus moves to suppress evidence
gathered pursuant to the June 4, 2004 warrant, which issued in
reliance on evidence gathered in the contested search. In support
of this position, defendant first asserts that the three Humboldt
County Deputies who searched the Elk Ridge Road property on the
night of May 30, 2003 intruded upon the protected "curtilage" of
that property in violation of the principles set forth in United
States v. Dunn, 480 U.S. 294 (1987). In addition, citing Kyllo
v. United States, 533 U.S. 27 (2001), defendant contends that
the deputies' use of night vision goggles violated his reasonable
expectation of privacy in the premises searched. Alternatively,
defendant argues that the June 4, 2004 search warrant should be
invalidated on the ground that Sergeant Wayne Hanson included
false and misleading statements in his affidavit submitted in
support of that warrant. Finally, defendant contends that even if
the search of Buildings 1 and 2 was constitutionally permissible,
evidence obtained in the deputies' search of Building 3 must be
suppressed because that structure is not located on either of the
parcels identified in the June 4, 2004 warrant. The court
considers each of defendant's arguments below.
The Fourth Amendment protects citizens from unreasonable
searches and seizures. U.S. Const. amend. IV. "To invoke the
protections of the Fourth Amendment, a person must demonstrate a
subjective expectation that his activities would be private, and
he must show that his expectation was one that society is
prepared to recognize as reasonable." United States v.
Bautista, 362 F.3d 584, 589 (9th Cir. 2004) (quoting United
States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000)) (original
alteration omitted). "Having made that showing, an individual is
protected by the Fourth Amendment from warrantless searches in
the absence of probable cause." Id. (citing United States v.
Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2003); Bailey v.
Newland, 263 F.3d 1022, 1029-1030 (9th Cir. 2001)). Furthermore,
"evidence which is obtained as a result of an illegal search and
seizure may not be used to establish probable cause for a
subsequent search." United States v. Wanless, 882 F.2d 1459,
1465 (9th Cir. 1989) (citations omitted).
To prevail on a motion to suppress, a defendant challenging the
constitutionality of a search or seizure must first "demonstrate
that he personally had a legitimate expectation of privacy in the
place searched or the thing seized." United States v. Davis,
332 F.3d 1163, 1167 (9th Cir. 2003) (quoting Rakas v. Illinois,
439 U.S. 128, 143 (1978)) (internal quotation marks omitted). The
Fourth Amendment expressly recognizes that individuals have a
legitimate expectation of privacy in their own homes. U.S. Const.
amend. IV; see also Kyllo, 533 U.S. at 31 ("With few
exceptions, the question whether a warrantless search of a home
is reasonable and hence constitutional must be answered no.")
(citations omitted). In addition, courts have extended similar
protections to a variety of other dwelling places, including
hotel rooms, Nerber, 222 F.3d at 604, "makeshift" tents,
United States v. Sandoval, 200 F.3d 659, 660-61 (9th Cir.
2000), and the homes of others in which the person challenging
the search or seizure is an overnight guest, Minnesota v.
Olson, 495 U.S. 91, 96-97 (1990).
The Supreme Court has also held that persons have a reasonable
expectation of privacy in certain exterior areas of residential
property. See Oliver v. United States, 466 U.S. 170, 178-80
(1984). Nonetheless, the zone of Fourth Amendment protection
afforded to a person's home does
not necessarily extend to his or her property line; only the
"curtilage" i.e., "the land immediately surrounding and
associated with the home" is shielded from unreasonable
searches and seizures. Id. at 180 & n. 11 (citing 4 William
Blackstone, Commentaries *225); see also United States v.
Barajas-Avalos, 377 F.3d 1040, 1057 (9th Cir. 2004). What lies
beyond the boundary of the curtilage are "open fields" that
government agents may enter without regard to the constraints
imposed by the Fourth Amendment. Oliver, 466 U.S. at 179-80;
Barajas-Avalos, 377 F.3d at 1056-57.
There is no fixed formula for drawing the line between the
curtilage and "open fields." Nonetheless, in United States v.
Dunn, 480 U.S. 294 (1987), the Supreme Court identified four
factors that are relevant to this determination: (1) "the
proximity of the area claimed to be curtilage to the home"; (2)
"whether the area is included within an enclosure surrounding the
home"; (3) "the nature of the uses to which the area is put"; and
(4) "the steps taken by the resident to protect the area from
observation by people passing by." Id. at 301 (citations
omitted). At the same time, the Dunn Court cautioned that
"these factors are useful analytical tools only to the degree
that, in any given case, they bear upon the centrally relevant
consideration whether the area in question is so intimately
tied to the home itself that it should be placed under the home's
`umbrella' of Fourth Amendment protection." Id. The government
bears the burden of proving that the search was not within the
curtilage of a defendant's home. See United States v.
Johnson, 256 F.3d 895, 901 (9th Cir. 2001) (en banc).
I. Intrusion upon Curtilage
In moving to suppress, defendant first argues that the three
Humboldt County Deputies who conducted the warrantless search the
Elk Ridge Road property on the night of May 30, 2003 intruded
upon the curtilage of that property in violation of defendant's
Fourth Amendment rights. Of course, in order to have "standing"
to assert this claim, defendant must not only establish that he
had a subjective expectation that his activities on the property
would remain private; he must also prove
that this expectation "was one that society is prepared to
recognize as reasonable." See Bautista, 362 F.3d at 589.
While the application of this standard to the instant motion
raises a number of difficult questions of Fourth Amendment law,
the court will assume without deciding that defendant has
standing to contest the deputies' search by virtue of his status
as a member of the cooperative and frequent overnight visitor to
the property.*fn3 Accordingly, the court must determine
whether the deputies' search of the exterior areas of that
property was reasonable. In making this determination, the court
applies each of the four "Dunn factors" to the facts of the
case at bar.*fn4
A. Proximity to the Dwelling
The first Dunn factor is the proximity of the area claimed to
be curtilage to the dwelling. 480 U.S. at 301. Application of
this factor requires a case-by-case inquiry into the nature of
the property searched. Johnson, 256 F.3d at 902. As the Ninth
Circuit noted in United States v. Depew, 8 F.3d 1424 (9th Cir.
1993), "there is not any fixed distance at which curtilage ends."
Id. at 1427. Nonetheless, as a general rule, the extent of
curtilage on rural properties such as the subject of the
challenged search will be greater than in a densely populated
urban setting. See Johnson, 256 F.3d at 902.
As an initial matter, the court notes that there is a dispute
as to where the three deputies who searched the Elk Ridge Road
property were standing when they made their observations of
Building 2 on the night of May 30, 2003. Sergeant Hanson's
affidavit, which is consistent with the testimony given at the
Franks hearing, places the deputies approximately 120 feet from
Building 2 at their nearest point of approach. Opp'n, Exh. 1 at
5. Defendant claims that Hanson was actually standing much closer
to Building 2, citing the following passage of Hanson's
As I was standing on the road looking at the
structure[,] Deputy Peterson, who was standing
approximately 20 yards behind me, yelled, "Car."
Deputies Dean, Peterson, and I then stepped off the
road to conceal ourselves. . . . The vehicle drove
down the road to the structure and parked.
Id. Defendant argues that because Hanson claims to have seen a
vehicle park in front of Building 1, his testimony regarding his
proximity to the structure must have been false because Building
1 is not visible from the point in the road located 120 feet from
Building 2. However, defendant's attempt to
impeach Hanson's testimony ignores what his affidavit actually
says. Contrary to defendant's assertion, Hanson's affidavit does
not state that he saw a car park in front of Building 1; rather,
it states that the car parked in front of "the structure," id.,
which from the context of the affidavit appears to refer to the
structure that he was observing i.e., Building 2. Nor is it
even clear that Hanson actually saw the car park. His affidavit
states that "[t]he vehicle drove down the road to the structure
and parked," id., which is consistent with Hanson inferring
that the car parked after he heard the engine shut off and a car
door opening without necessarily seeing where the car parked.
Furthermore, at the Franks hearing, both Hanson and Humboldt
County Deputy Mark Peterson confirmed the accuracy of the
statement in Hanson's affidavit. Oct. 14, 2004 at 48, 102, 114.
Accordingly, in the absence of any persuasive evidence to the
contrary, the court finds Hanson's testimony to be credible and
concludes that the deputies came no closer than 120 feet from
Building 2 and thus no closer than 240 feet from the residence
on the night of May 30, 2003.
Standing in isolation, the fact that the deputies were
approximately 240 feet from Building 1 does not rule out the
possibility that the deputies intruded upon the curtilage. As the
Second Circuit has observed, "[o]n a large parcel of land, a pond
300 feet away from a dwelling may be as intimately connected to
the residence as is the backyard grill of the bloke next door."
United States v. Reilly, 76 F.3d 1271, 1277, on reh'g,
91 F.3d 331 (2d Cir. 1996). Nonetheless, even in rural areas, it is
rare for curtilage to extend more than 100 feet beyond the home.
See, e.g., Dunn, 480 U.S. at 297, 302 (holding that
deputies who approached within 90 feet of a rural residence were
not within the boundaries of the curtilage); United States v.
Van Damme, 48 F.3d 461, 464 (9th Cir. 1995) (200 feet is outside
of the curtilage); United States v. Brady, 993 F.2d 177, 178
(9th Cir. 1993) (45 feet is outside of the curtilage); United
States v. Traynor, 990 F.2d 1153, 1158 (9th Cir. 1993) (70 to 75
feet is outside of the curtilage); United States v. Calabrese,
825 F.2d 1342, 1350 (9th Cir. 1987) (50 feet is outside of the
curtilage). But cf. United States v. Furrow, 229 F.3d 805,
817 (9th Cir. 2000) (holding that the district court to not
clearly err in finding that a distance of 100 feet is within the
curtilage); Depew, 8 F.3d at 1427 (distance of 50 to 60 feet is
within the curtilage). Thus, even though the deputies' proximity
to the residence located on the property searched is not
dispositive, the fact they were standing approximately 240 feet
from that residence favors a finding that they were outside of
The second Dunn factor requires the court to consider whether
the area searched is included within any enclosure surrounding
the home. 480 U.S. at 301. As the Court observed in Dunn, the
boundaries of the curtilage will typically be "clearly marked"
and "easily understood from our daily experience." Dunn,
480 U.S. at 302. The most commonly encountered lines of demarcation
are gates and fences, which the Court characterized as "important
factors in defining the curtilage." Id. at 301 n. 4; see also
Johnson, 256 F.3d at 902. Even in rural areas, where fences may
be absent, "natural boundaries such as thick trees or shrubberies
may also indicate an area `to which the activity of home life
extends.'" Johnson, 256 F.3d at 902 (quoting Dunn,
480 U.S. at 302).
Here, Buildings 1 and 2 are located in a natural clearing
surrounded by dense vegetation. Under the rationale advanced in
Dunn and applied by the Ninth Circuit in Johnson, the natural
enclosure that surrounds these structures favors a finding that
the area within the clearing is part of the curtilage and that
those areas outside the clearing are not. As noted above, the
point in the road at which the deputies stopped walking on the
night of May 30, 2003 was not within the clearing. Thus, the
court finds that this factor also weighs against
C. Uses of Area Searched
The third Dunn factor is the nature of the uses to which the
area searched was put. 480 U.S. at 301. In applying this factor
to the instant motion, the court is mindful that the curtilage
analysis is directed toward determining "whether the area in
question is so intimately tied to the home itself that it should
be placed under the home's `umbrella' of Fourth Amendment
protection." Id.; see also Depew, 8 F.3d at 1427 n. 2.
Here, the area searched was a dirt road. No part of the residence
was visible from where the deputies were standing. Indeed, the
only structure that the deputies were able to observe was
Building 2, a garage-like building that was used for the purpose
of growing marijuana. Accordingly, it would appear that the
search at issue here does not implicate the interests served by
extending Fourth Amendment protections to the curtilage.
Although one might think that the inquiry into the nature of
the uses of the premises searched would end there, the Ninth
Circuit has held that the this factor implies that a government
agent must possess "prior objective knowledge of the property's
use" before approaching a structure "free of Fourth Amendment
constraints." Johnson, 256 F.3d at 903 (citing Depew,
8 F.3d at 1426-27; Calabrese, 825 F.2d at 1350). In many cases, the
extent of objective knowledge possessed by the officers
performing the search is dispositive. For example, in United
States v. Shates, 915 F. Supp. 1483 (N.D. Cal. 1995) (Henderson,
C.J.), the court considered the constitutionality of a
warrantless search of a large rural property in which the
officers conducting the search had approached within 150 feet of
the defendant's home. Id. at 1499-50, 1503. In upholding the
validity of this search, the court relied heavily on the fact
that the officers initiated the search only after they have
received a tip from a "reliable" informant concerning illegal
drug manufacturing activities that had taken place on the
property. Id. at 1487-88, 1498. The officers also were able to
smell methamphetamine as they approached the area where the
search was carried out. Id. at 1498. The court found this
objective information highly relevant in determining the extent
of the curtilage, observing that the Fourth Amendment protections
associated with a particular area "may stretch or contract based
on the amount of objective information possessed by the law
enforcement officers." Id. Thus, the court concluded that even
though the search "may well have been within in the curtilage" in
the absence of such objective information, the fact that the
officers had "grounds to believe that they were not intruding on
the curtilage of the property" required the court to deny the
defendant's motion to suppress. Id. at 1498, 1503.
In reaching this conclusion, the Shates court distinguished
the Ninth Circuit's decision in Depew. In that case, law
enforcement officials had received a tip from an informant that a
man named "Pepe" had aided the defendant in launching a marijuana
growing operation. 8 F.3d at 1425. In reliance on this tip and
without obtaining a warrant, a police officer conducted a search
of the area around the defendant's home. Id. at 1426. In
carrying out the search, the officer walked down the defendant's
driveway and was able to smell marijuana from a point
approximately fifty to sixty feet from the defendant's house (and
within five to six feet of his garage). Id. The officers
obtained and executed a search warrant and confiscated more than
1,000 marijuana plants. Id. The defendant's motion to suppress
evidence gathered pursuant to that warrant was denied by the
district court. Id. The Ninth Circuit reversed, holding that
the officer conducting the warrantless search of the defendant's
property intruded upon the curtilage associated with his home.
Id. at 1429.
As in Shates, this court finds that the facts of Depew are
distinguishable from the case at bar. Unlike the search at issue
here, the warrantless search in Depew was conducted prior to
obtaining any information that tied the defendant's unlawful
conduct to the property searched. Id. at 1429. In contrast, the
search of the Elk Ridge Road property was prompted by an
informant's detailed statement regarding an indoor marijuana
growing operation located on the premises. While that statement
may not have been sufficient to establish probable cause to
search the premises in its entirety, it is material to
determining whether the deputies entered the curtilage during the
May 30, 2003 search. In light of this fact and in the absence of
any suggestion that the area searched harbored any "intimate
activities associated with domestic life and the privacies of the
home," Dunn, 480 U.S. at 301 n. 4, the court concludes that the
nature of uses to which the area searched was put weighs against
D. Steps Taken to Protect Area from Observation
The fourth and final Dunn factor requires the court to
consider "the steps taken by the resident to protect the area
from observation by people passing by." Dunn, 480 U.S. at 301.
While the language used by the Dunn Court appears to suggest
that the individual objecting to the search must take affirmative
steps to shield his or her activities from public view, the Ninth
Circuit has on occasion observed that the secluded nature of
residential areas on large rural properties weighs in favor of
finding that those areas are within the curtilage. See
Johnson, 256 F.3d at 903; Depew, 8 F.3d at 1428. There is no
dispute that the residence on the Elk Ridge Road property is in a
remote area that is unlikely to be observed by casual passers-by.
The locked gate blocking vehicular access to the driveway and the
presence of "No Trespassing," "Private Road," and "Beware of the
Dog" signs are additional evidence of defendant's understandable
desire to exclude the public from the area searched. Accord
Depew, 8 F.3d at 1428 (noting that "[t]he posting of `No
Trespassing' signs is
significant in terms of constituting an effort to protect the
inner areas of a parcel from observation") (citing Dunn,
480 U.S. at 301). Thus, the court finds that the fourth Dunn factor
In summary, the court finds that the first three Dunn factors
favor the government, while the fourth favors defendant. In
assigning weight to these factors, the court is guided by the
nature of the privacy interest advanced by extending Fourth
Amendment protections to the curtilage. As the Supreme Court has
repeatedly made clear, the Fourth Amendment borrows from the
common law notion that the curtilage is an extension of the home.
See Oliver, 466 U.S. at 180. For that reason, a homeowner's
reasonable expectation of privacy extends beyond the walls of the
home to include the areas "associated with the sanctity of a
[person's] home and the privacies of life." Id. (quoting Boyd
v. United States, 116 U.S. 616, 630 (1886)). However, an intent
to maintain privacy does not necessarily establish a
constitutionally protected private space. Van Damme,
48 F.3d at 464. Thus, an area that lacks any "indicia of activities commonly
associated with domestic life" is not entitled to the full
panoply of Fourth Amendment protections that have been afforded
to such activities. Id.
In light of these considerations, the court finds that the area
of the Elk Ridge Road property searched on the night of May 30,
2003 falls outside the curtilage of that property. At all times
during the search, the deputies remained on or near the road
leading to Buildings 1 and 2. The use of this road i.e.,
transportation can hardly be considered an "intimate activity."
Moreover, the only structure that the deputies observed was used
for the purpose of growing marijuana. Considering these facts,
along with evidence of the substantial distance that the deputies
maintained between themselves and the residence and the fact that
search took place outside the natural "enclosure" surrounding the
clearing, the court is compelled to conclude that the deputies
did not enter the curtilage of the property.*fn6 The court
thus finds no basis for granting defendant's motion to suppress
on that ground.
II. Night Vision Goggles
Defendant next argues that even if the deputies were outside of
the curtilage on the night of May 30, 2003, their use of night
vision goggles to aid their observations of Building 2 violated
the Fourth Amendment. As a general rule, the observation of a
constitutionally protected area by a government agent standing in
an open field or a public space does not constitute a "search"
within the meaning of the Fourth Amendment. Barajas-Avalos,
377 F.3d at 1055-56 (citing Dunn, 480 U.S. at 298, 304). However,
an exception to this rule was recognized by the Supreme Court in
Kyllo. In that case, the defendant moved to suppress evidence
obtained pursuant to a warrant issued in reliance on the results
of a thermal imaging scan of his home. Kyllo,
553 U.S. at 29-30. The scan, conducted from a public right-of-way, revealed
temperature gradients in the interior of the home that were
consistent with (and were in fact caused by) high-intensity
lights used in an indoor marijuana growing operation. Id. The
Court held that the search violated the defendant's reasonable
expectation of privacy, concluding that "[w]here, as here, the
Government uses a device that is not in general public use? to
explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a
`search' and is presumptively unreasonable without a warrant."
Id. at 40.
There can be no serious dispute that there are significant
technological differences between the thermal imaging device at
issue in Kyllo and the night vision goggles used by the
deputies during the search of the Elk Ridge Road property. While
a thermal imaging scanner enables authorities to infer the
presence of any relatively warm object (including a person)
behind walls and other opaque barriers, id. at 35-36, night
vision goggles merely amplify ambient light to allow the wearer
to see in relative darkness. The ability to "`see' through walls"
that so concerned the Kyllo Court simply does not arise when
government agents conduct a search using night vision goggles.
Cf. id. at 36 n. 3. In light of such differences, several
lower courts have held that Kyllo is inapplicable to searches
that employ night vision equipment. See, e.g., Baldi v.
Amadon, No. Civ. 02-313-M, 2004 WL 725618, at *3 (D.N.H. Apr 5,
2004); People v. Katz, No. 224477, 2001 WL 1012114, at *2 n. 4
(Mich.App. Sept. 4, 2001) (per curiam), appeal denied by
640 N.W.2d 877 (2002).
For purposes of the instant motion, the court need not go so
far as to hold that the rationale set forth by Kyllo could
never apply to an open-field search conducted using night vision
goggles. Rather, it is sufficient to note that the facts of this
case are particularly unpromising terrain on which to test such a
theory. The Kyllo Court made clear that its holding was
premised on the heightened protection that the Fourth Amendment
afforded to the intimate activities that occur within a home.
See, e.g., 533 U.S. at 37 ("In the home, . . . all details
are intimate details, because the entire area is held safe from
prying government eyes.") (emphasis in original); 533 U.S. at 40
(observing that "the Fourth Amendment draws `a firm line at the
entrance to the house'" and that such a line "must not only be
firm but also bright") (quoting Payton v. New York,
445 U.S. 573, 590 (1980)). The search at issue here involved the use of
night visions goggles to observe an outbuilding used for the
purpose of growing marijuana. The structure was not anyone's
home, nor was it intended or used for human habitation in any
way. Thus, even assuming that Kyllo might impose some limit on
the constitutionality of a government agent's use of night vision
goggles to observe residential structures from open fields, the
facts that would implicate such a limitation are simply not
presented in the case at bar. The court therefore holds that the
deputies' use of night vision goggles did not violate defendant's
reasonable expectation of privacy in the Elk Ridge Road property.
III. Probable Cause for Issuance of the Warrant
Having concluded that defendant's Fourth Amendment rights were
not violated by the search of the Elk Ridge Road property
conducted on the night of May 30, 2003, the court need only find
that the evidence gathered in that search, along with the
information provided to Hanson by the confidential informant, was
sufficient to support a finding of probable cause for a search
warrant to issue. "An affidavit in support of a search warrant
demonstrates probable cause if, under the totality of the
circumstances, it reveals a fair probability that contraband or
evidence of a crime will be found in a particular place." United
States v. Celestine, 324 F.3d 1095, 1102 (9th Cir. 2003) (citing
Illinois v. Gates, 462 U.S. 213, 238 (1983)). "A court must
uphold a warrant if, `under the totality of the circumstances,
the magistrate had a substantial basis for concluding that
probable cause existed.'" Id. (quoting United States v.
Schmidt, 947 F.2d 362, 371 (9th Cir. 1991)).
Defendant does not dispute that Sergeant Hanson's affidavit is
on its face sufficient to support a finding that probable cause
to search the Elk Ridge Road property existed. Rather, defendant
contends that the affidavit contains false and misleading
statements that undermine the magistrate's finding of probable
cause. As the Supreme Court held in United States v. Leon,
468 U.S. 897 (1984), suppression of evidence gathered pursuant to a
search warrant is required if the magistrate issuing warrant was
misled by statements in the affidavit that the affiant knew to be
false or that the affiant made with reckless disregard of the
truth. Id. at 914 (citing Franks, 438 U.S. at 154). Here, the
court has already discussed and rejected defendant's attempt
to cast doubt upon Hanson's testimony regarding the deputies'
proximity to Building 2 on the night of May 30, 2003. Defendant
also identifies a number of other purportedly willful
representations or omissions in Hanson's affidavit, including:
(1) representations as to when the confidential informant had
been on the property; (2) Hanson's description of the light
emanating from Building 2 as "extremely bright"; (3) Hanson's
testimony as to when he and the other deputies left the Elk Ridge
Road property; and (4) Hanson's failure to inform the magistrate
that the property was not connected to the electrical grid (and
thus would need a generator to provide electric power for
ordinary household uses). However, it is far from clear that any
of these statements are materially false or misleading, and
defendant's claim that they were made willfully or with reckless
disregard as to their truth is nothing more than speculation.
Indeed, Hanson's testimony in this court corroborates the
essential details of his affidavit. Seeing no reason to doubt the
credibility of this testimony, the court rejects defendant's
contention that Hanson lied to the magistrate in order to obtain
the warrant authorizing the search of the Elk Ridge Road
property. The court thus holds that the warrant issued by the
Humboldt County Superior Court on June 4, 2003 validly authorized
the search of the property identified by APNs 220-301-020 and
221-240-020. Because defendant does not dispute that Buildings 1
and 2 are located on these parcels, the court denies defendant's
motion to suppress the evidence gathered in the search of those
IV. Search of Building 3
Having concluded that the search of Buildings 1 and 2 was
constitutionally permitted, the court turns to defendant's
remaining argument, which pertains only to the search of Building
3. With respect to that structure, defendant argues that even if
the warrant issued on June 4, 2003 is valid as to Buildings 1 and
2, evidence obtained in the search of Building 3 must nonetheless
be suppressed because that structure was not located on either of
the parcels identified by the warrant. The government disputes
this assertion and continues to maintain that Building 3 is in
fact located on one of the two parcels identified in the June 4,
2003 warrant, parcel APN 220-301-020. However, the survey of the
relevant property line conducted by Barry Kolstad leaves little
doubt that Building 3 is located more than 100 feet north of APN
220-301-020 on the property of Yvonne Schad. Accordingly, the
court agrees with defendant that the search of that structure was
not authorized by the June 4, 2003 warrant.
Seizing on this fact, defendant argues that the search of
Building 3 conducted by Humboldt County Deputies and federal
agents on June 9, 2003 violated his Fourth Amendment rights. Once
again, the court assumes without deciding that defendant had a
reasonable expectation of privacy in the premises searched in
this case, the interior of Building 3.*fn7 Thus, the court
must consider whether the "good faith exception" saves the
evidence gathered in the search of Building 3 from suppression.
Under this exception to the requirements of the Warrant Clause of
the Fourth Amendment, evidence obtained in a warrantless search
of a constitutionally protected area need not be suppressed if
the government agent who conducted the search acted in good faith
reliance on a facially valid warrant. Leon, 468 U.S. at 922;
United States v. Huggins, 299 F.3d 1039, 1044 (9th Cir.),
cert. denied, 537 U.S. 1079 (2002). The exception applies
unless (1) the searching officer's reliance on the warrant was
not "objectively reasonable"; (2) the magistrate who issued the
warrant "wholly abandoned his [or her] judicial role"; or (3) the
officer who obtained the warrant acted in bad faith by misleading
the magistrate. Leon, 468 U.S. at 922-23; Huggins
299 F.3d at 1044.
The court has already concluded that the warrant authorizing
the search of APNs 220-301-020 and 221-240-020 was facially valid
and that Hanson did not intentionally or recklessly mislead
the magistrate. Nonetheless, defendant argues that Hanson acted
unreasonably and in bad faith when he authorized the search of
Building 3 on June 9, 2003. As noted above, Hanson discovered
Building 3 after the deputies had served the warrant and had
begun to inventory the evidence recovered from Buildings 1 and 2.
Oct. 14, 2004 Tr. at 64-65, 68 (Hanson Testimony). Upon making
this discovery, he contacted BLM Special Agent Laurel Pistel and
requested her assistance in determining whether the structure was
located on one of the parcels identified by the warrant. Id. at
66. Using the reading from Hanson's handheld GPS unit to
determine his location and the data from the Humboldt County
Assessor's Office to determine the parcel boundaries, Pistel
manually plotted this data on a USGS quadrangle map. Id. at
129-35 (Pistel Testimony). Her conclusion that Building 3 was
located on APN 220-301-020 turned out to be wrong. However,
Hanson's effort to determine whether Building 3 was located on
the premises to be searched was reasonable under the
circumstances. While it certainly would have been more accurate
to retain a surveyor to determine the precise location of the
property boundary, the time and expense required to do so would
go well beyond the bounds of ordinary prudence.
Nor is there any serious dispute that Hanson acted in good
faith. Once again, defendant's assertion to the contrary he
appears to argue that Hanson intentionally excluded Building 3
from his report to the magistrate relies entirely on
speculation and is unsupported by any evidence in the record
suggesting that Hanson intentionally misled the magistrate or
this court. Accordingly, the court holds that the although the
search of Building 3 fell outside the scope of the June 4, 2003
warrant authorizing the search of the Elk Ridge Road property,
the good faith exception saves the evidence gathered in that
search from the Fourth Amendment's exclusionary rule. The court
therefore denies defendant's motion to suppress evidence obtained
in the search of Building 3.
For the reasons stated above, defendant's motion to suppress is
IT IS SO ORDERED.