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U.S. v. DELLAS

February 8, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
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. Page 2

BACKGROUND

  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, Page 3 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. at 18-19.

  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. Page 4

  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. Page 5 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. Page 6

  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 ...


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