Opinion
No. C-00-1794 EDL
May 2, 2001
ORDER DENYING CLAIMANTS' MOTION TO SUPPRESS EVIDENCE AND REQUEST FOR A FRANKS HEARING
I. INTRODUCTION
On May 17, 2000, the United States filed a complaint for civil forfeiture of the seized vehicles and funds based upon allegations that Brenden Lewis cultivated substantial quantities of marijuana in Humboldt County, California. The property that is the subject of the United States' complaint was seized on July 12, 1999, pursuant to a warrant issued by the Superior Court of Humboldt County.
On November 21, 2000, Claimants Brenden Lewis and Robbin Lewis ("Claimants"), a married couple, filed a Motion to Suppress Evidence. On December 6, 2000, the United States timely responded to the Motion to Suppress Evidence. On December 15, 2000, Claimants filed their Reply. On December 19, 2000, the Court held a hearing on Claimants' Motion to Suppress Evidence. In light of new evidence submitted late by Claimants, the Court requested supplemental briefing. On January 30, 2001, the United States filed its Supplemental Response and supporting declarations. Claimants responded on February 15, 2001.
Claimants bring this motion on the grounds that the affidavit in support of the application for the search warrant omitted and misrepresented material facts, thereby requiring a Franks hearing. See Franks v. Delaware, 438 U.S. 154 (1978). The issued warrant was based on an affidavit filed by Special Agent David Rybarczyk, a Humboldt County District Attorney's Office investigator assigned to the Humboldt County Drug Task Force. Upon consideration of the briefs, argument of counsel, the relevant authorities, and the record in this case, the Court enters the following order.
II. FACTUAL BACKGROUND
On July 12, 1999, William Nova, a Detective with the Eureka Police Department, was assigned to a search warrant team that went to a property adjacent to Lewis' property, known as the Murrish property, to execute a search warrant. Deputy Gary Cooper of the Humboldt County Sheriff's Department Drug Enforcement Unit boarded a California Highway Patrol helicopter and flew over the general area. According to Nova, Deputy Cooper informed officers on the ground of the existence of a well-traveled quad-runner trail which appeared to lead from the Murrish property to the parcel to the approximate south, down a grassy slope and into an area of timber. See Decl. of William Nova in Supp. of Gov't's Resp. to Mot. to Suppress Evidence ¶ 7 ("Nova Decl."); Decl. of Gary Cooper in Supp. of Gov't's Resp. to Mot. to Suppress Evidence at 2:4-6 ("Cooper Decl."). Sergeant Steve Knight, Deputy Randy Garcia, Deputy Bruce Anfinson and Detective Nova located and followed the trail using quad-runner vehicles and were guided by Deputy Gary Cooper who was overhead in the helicopter. Id. They continued in a south-easterly direction and ended at a developed area of buildings accessed by a gravel road coming from the south. Id.
Detective Nova then reported the building descriptions and his observations to Special Agent Rybarczyk via cellular telephone. Nova informed Rybarczyk that he saw a potting soil dump site near the buildings and that there were small dead marijuana plants in the soil pile. Nova Decl. ¶ 12. Further, Sergeant Knight and Task Force Agent Patrick O'Neill both reported smelling marijuana coming from at least two of the outbuildings. Id. ¶ 14. Agent Rybarczyk used this information to obtain a search warrant. Id. ¶ 15.
Initially, Claimants argued that the evidence used in support of the search warrant could not have been obtained from observations from the neighboring Murrish property. In response, the United States agreed that observations could not have been made from any great distance, but presented evidence that the observations were instead made close to the outbuildings on Lewis' property. Claimants also contended that agents would have had to cross a fence that separates the Lewis and Murrish properties and that no well-traveled quad runner trail existed prior to July 12, 1999. The United States denies that a fence separates the Lewis and Murrish properties and argues that its agents entered the property on a well-traveled quad runner trail already in existence.
Subsequently, Claimants changed their theory to argue that the observations were illegally made from within the protected curtilage of the Lewis property, as they acknowledged in their Reply brief:
The Franks v. Delaware motion was made because claimants incorrectly assumed that Agent Rybarczyk was falsely claiming that observations were made from beyond the perimeter of the Lewis property. Claimants have now discovered that said observations were made within the perimeter, but within the curtilage of the Lewis property. The curtilage area, surrounded by trees, is and was protected from warrant less search.
Reply to Gov't's Supplemental Resp. to Claimants' Mot. to Suppress Evidence at 3:16-22 ("Claimants' Supp. Reply").
Specifically, Claimants now argue that the agents did not enter the property through the open fields, but instead by cutting a lock on a gate to a nearby driveway, and then improperly proceeded to make the observations supporting probable cause from within the protected curtilage. Id. at 2:7-13. Claimants rely on a late-filed declaration of a neighbor who left the gate locked earlier in the day, despite the agents' request that she leave it unlocked, and returned later to see that the lock had been cut and agents were on the Lewis property. Declaration of Jessica Bittner ¶¶ 3, 4 ("Bittner Decl.").
The United States responds that the agents' entry was legal under the open fields doctrine and that only after agents made the incriminating observations used to obtain the search warrant from outside the curtilage did one of them cut the lock to allow a marked police vehicle to enter. According to the United States, Deputy Bruce Anfinson was directed to return to the gravel road and to bring his marked vehicle down to the site for security reasons as well as to improve communications. See Decl. of Bruce Anfinson in Supp. of Gov't's Supplemental Resp. to Mot. to Suppress Evidence at 2:1-7 ("Anfinson Decl."). As Anfinson returned to the property, he encountered a locked gate that he cut in order to get the vehicle to the officers' location. Therefore, the United States contends, any omission in the affidavit about the lock being cut was immaterial. Alternatively, the United States argues that Claimants lack standing to raise the issue of cutting the lock because Claimants have offered no proof that the gate where the lock was cut was on the Lewis property.
III. LEGAL ANALYSIS
A. Applicable Legal Standard
A defendant seeking a hearing under Franks v. Delaware, 438 U.S. 154, 156 (1978), must make a substantial preliminary showing that an evidentiary hearing is warranted because: (1) the affiant knowingly or recklessly included in the affidavit a statement that he knew was false; and (2) the false statement was necessary to the magistrate's finding of probable cause. See United States v. Collins, 61 F.3d 1379, 1384 (9th Cir. 1995); United States v. Tham, 960 F.2d 1391, 1395 (9th Cir. 1991). The Ninth Circuit has likewise held that a defendant may challenge a facially valid warrant which contains deliberate or reckless omissions of material facts that tend to mislead. See Tham, 960 F.2d at 1395 (citing United States v. Stanert, 762 F.2d 775, 781, amended, 769 F.2d 1410 (9th Cir. 1985)).
Under Franks, five requirements must be satisfied before a defendant is entitled to a hearing: (1) the defendant must allege specifically which portions of the affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) the defendant must make a detailed offer of proof, including affidavits; (4) the defendant must challenge the veracity of the affiant only; and (5) the challenged statements must be necessary to find probable cause. See United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986). The defendant bears the burden to demonstrate deliberate falsity or reckless disregard for the truth by the affiant. See United States v. Sullivan, 919 F.2d 1403, 1424 (10th Cir. 1990).
If a satisfactory preliminary showing is made, the district court examines the warrant for probable cause without the disputed material or, in the case of an omission, with the disputed material. If the remaining content is insufficient to support a finding of probable cause, the defendant will then be entitled to an evidentiary hearing. See United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985).
B. Discussion
1. Quad Runner Trail/Fence
In their opening brief, Claimants argued that contrary to the affidavit in support of the search warrant, no well-traveled quad runner trail leading from the Murrish property to the Lewis property existed on July 12, 1999. While Claimants appear to have abandoned this argument, in the interests of completeness the Court will address it.
Claimants contended that whatever quad runner trails are depicted in the exhibits were made by the agents when they entered the Lewis property. See Reply to Gov't's Pleading Dated December 5, 2000 at 2:21-28-3:1-5 ("Claimants' Reply"). In support of these allegations, Claimants relied on the declaration of Gary Holder, a private investigator retained by Claimants. In late August of 1999 and early September 1999, Holder visited the Lewis property. According to Holder, he could not locate a well-traveled quad runner trail or any other link between the Murrish and Lewis properties. See Decl. of Gary Holder ¶ 9 ("Holder Decl.").
The United States responded that a well-traveled quad runner trail did exist on July 12, 1999. From the helicopter, Deputy Cooper observed a "quad runner trail that began just off of the driveway leading to the Murrish property." See Cooper Decl. at 2:4-6; see also Nova Decl. ¶ 7 (Agent Nova located and followed the trail on July 12, 1999). In August of 1999, Agent Nova conducted an overflight of the Murrish and Lewis properties and took a series of photographs of the area, some of which show the quad runner trail. See Ex. C attached to Nova Decl.
While Claimants argued that no well-traveled quad runner trail existed on July 12, 1999, Claimants produced only weak circumstantial evidence in support of this argument. The fact that Claimants' special investigator, Holder, did not locate a quad runner trail well over a month after the search was executed is not inconsistent with the existence of a well-traveled quad runner trail on July 12, 1999. Claimants did not produce, for example, any declarations from property owners or neighbors who visited the property during the relevant time period. In light of the declarations provided by the United States supporting the existence of a well-traveled quad runner trail and the lack of sufficient evidence to the contrary, Claimants failed to make a substantial preliminary showing warranting a Franks hearing.
Claimants further argued that the affidavit in support of the search warrant failed to make reference to a fence that divides the Lewis property from the Murrish property and that such omission is material. See Claimants' Reply at 2:8-13. According to Holder, a fence ran along the apparent boundary between the Murrish and Lewis properties. See Holder Decl. ¶ 9. The United States produced evidence, that while a fence exists on the Lewis property, it runs in a northeast to southwest direction and is several hundred yards east of the quad runner trail. See Decl. of William Nova in Supp. of Gov't's Supplemental Resp. to Mot. to Suppress Evidence at 2:3-7 ("Supp. Nova Decl.").
In any event, Claimants failed to produce evidence that the fence blocked the trail where the agents entered the Lewis property. Claimants did not submit, for example, any photographs of the alleged boundary line. Furthermore, as explained in the discussion of the open fields doctrine below, even assuming that the affidavit erroneously failed to disclose that agents crossed a perimeter fence, the omission would not be material. See, e.g., United States v. Traynor, 990 F.2d 1153 (9th Cir. 1993); United States v. Van Damme, 48 F.3d 461 (9th Cir. 1995). Therefore, Claimants failed to make a substantial preliminary showing warranting a Franks hearing on this basis.
2. Open Fields Doctrine
Even if Claimants had made a substantial preliminary showing that a fence divided the Murrish and Lewis properties, that no quad runner trail existed prior to July 12, 1999 and that agents instead gained access by cutting the locked gate, the United States argues that none of these facts would be material. Rather, the United States argues that its agents conducted an open field search of an area to which Claimants had no legitimate expectation of privacy. The government relies on the "open fields" doctrine, first enunciated in Hester v. United States, 265 U.S. 57 (1924), which permits police officers to search a field without a warrant. An individual may not legitimately demand privacy for activities conducted in fields, except in the area immediately surrounding the home. See Oliver v. United States, 466 U.S. 170, 178 (1984).
Open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be.
Id. at 179.
The Fourth Amendment protects the curtilage of a home, the extent of which is determined by whether the individual may reasonably expect that the area in question should be treated as the home itself. See United States v. Soliz, 129 F.3d 499, 502 (9th Cir. 1997). Whether an area falls within the protected curtilage is a factual inquiry. Id. (citing United States v. Depew, 8 F.3d 1424, 1426 (9th Cir. 1993)). The central component of this inquiry is "whether the area harbors the intimate activity associated with the sanctity of a man's home and privacies of life." Id.
To aid in this factual inquiry, the Supreme Court developed a four-factor test. A court must consider: (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. United States v. Dunn, 480 U.S. 294, 301 (1987). The Court cautioned, however, 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.
In United States v. Traynor, 990 F.2d 1153 (9th Cir. 1993), the court held that a shop on the defendant's property was not so intimately tied to the home as to be within the protected curtilage. In Traynor, the deputies turned off a public thoroughfare onto a private road and drove until they came to a locked gate where a "No Trespassing" sign was posted. Id. at 1155. The gate completely obstructed the road; however, no fences were attached to it and beaten paths were visible on both sides of the gate. The deputies walked around the gate and one approached the residence while the other approached the shop. They detected a marijuana smell. The deputies left after spending approximately five minutes at the defendant's residence. Based on this information, a state judge issued a search warrant. The defendant filed a motion to suppress evidence, arguing that the search violated the Fourth Amendment.
The Ninth Circuit in Traynor held that "it [did] not matter that officers first trespass[ed] upon the property that [was] obviously curtilage while investigating a tip, as long as the incriminating observations themselves [took] place outside the protected curtilage." Id. at 1157; see generally United States v. Dunn, 480 U.S. 294 (1984); United States v. Pace, 955 F.2d 270 (5th Cir. 1992); United States v. Calabrese, 825 F.2d 1342 (9th Cir. 1987). Then, applying the Dunn factors, the court determined that the "officers did not intrude into an area protected by the Fourth Amendment." Id. First, the shop was seventy to seventy-five feet away from the defendant's home. The court noted that this distance was approximately twenty-five feet further than the structures in Pace, 955 F.2d at 273, and Calabrese, 825 F.2d at 1350, which were both deemed to be outside the curtilage. See also United States v. Brady, 993 F.2d 177, 178 (9th Cir. 1993) (holding that an outbuilding forty-five feet from a residence was not within the curtilage). Second, there was no fence attached to the front gate leading to the defendant's driveway. The court relied on the fact that no "interior fencing clearly demarcate[d] the curtilage." Id. at 1158. Third, the shop was devoted solely to the growing of marijuana. Finally, because the shop was only forty-five feet away from the defendant's property line, the court determined that the defendant took no steps to shield the area from persons standing on adjacent property. Id.
Similarly, in United States v. Van Damme, 48 F.3d 461 (9th Cir. 1995), the court held that greenhouses which housed marijuana were not within the protected curtilage. In Van Damme, a drug enforcement agent and police officer trespassed on the defendant's property in the middle of the night, walked through the defendant's forest and climbed over a wire fence to get to the marijuana growing area that they had previously identified by air. The officers stopped at a board fence, which was twelve feet high, looked through a crack between the boards and saw the marijuana inside. Id. at 464. Holding that the officers were not within the curtilage, the court relied on the facts that the greenhouse compound was over 200 feet from the home; the wire fence surrounding the home and greenhouse was a perimeter fence enclosing several acres and not a fence surrounding only the home and curtilage; the board fence surrounding the greenhouse made it a distinct portion of the property separate from the residence; and the greenhouse compound lacked any "indicia of activities commonly associated with domestic life." Id. Therefore, the officers were not within the protected curtilage when they saw the marijuana through the fence and greenhouse doors, and neither were the greenhouses. Furthermore, the court rejected the defendant's argument that an intent to maintain an area's privacy necessarily brings it within the protected curtilage. Id.
By contrast, in United States v. Furrow, 229 F.3d 805, 817 (9th Cir. 2000), the Ninth Circuit held that four outbuildings were within the curtilage because they were used for domestic purposes, including the conduct of family affairs. For example, the tools in the outbuildings were used in the defendant's trade and the vehicles were used for recreation by family members. Id. Although the outbuildings were one hundred feet away from the home, the timbered area enclosed both the home and the four outbuildings as one curtilage.
Applying the factors set forth in Dunn and in light of Ninth Circuit precedent, the Court finds that Claimants have failed to make a substantial preliminary showing that the outbuildings are within the protected curtilage. First, based on the evidence presented, it appears that the closest outbuilding is approximately seventy-five feet from the residence. See Nova Decl. at 4:2-5; Ex. E4 attached to Holder Decl. Arguably, if diagram E4 attached to Holder's declaration is to scale, then the distance from the residence (marked as building number six) to the closest outbuilding (marked as building number three) may be sixty feet. Claimants have produced no evidence of the distance between the residence building and the closest outbuilding. Nonetheless, whether this Court relies on the representation of the United States or on the hand drawn diagram attached as Exhibit E4 to Holder's declaration, the outbuildings are sufficiently distanced from the residence so as to be considered outside the protected curtilage when considered in conjunction with the other factors below. This distance is similar to that in Traynor, 990 F.2d at 1155, and greater than the distances in Pace, 955 F.2d at 273, and Calabrese, 825 F.2d at 1350.
Claimants argue that the outbuildings and the residence building are surrounded by a strand of trees that functions as an enclosure conferring protection on all the buildings as within the curtilage. See Claimants' Supp. Reply at 3:10-15. Claimants did not, however, produce any evidence in support of this argument. In fact, Exhibit A attached to Nova's declaration illustrates a strand of trees dividing the Lewis residence from the outbuildings. See Ex. A attached to Nova Decl. Therefore, unlike Furrow, 229 F.3d at 817, a case relied upon by Claimants, there is no evidence that the timbered area encloses the residence and the outbuildings as one curtilage. Rather, the strand of trees functions more like the board fence in Van Damme, supra, which separated the residence from the outbuildings, thereby rendering the outbuildings outside the curtilage. Furthermore, the fence that Holder observed was at most a perimeter fence, not a fence surrounding only the home and curtilage. See Traynor, 990 F.2d at 464.
Here, unlike Furrow, 229 F.3d at 817, Claimants have not produced any evidence or indicia that the outbuildings were being used for the intimate activities of the home, such as bicycles. To the contrary, the only evidence is of a large marijuana cultivation operation. Sergeant Knight recognized a rotation pile containing dried, dead marijuana plants outside of the buildings. See Decl. of Steve Knight in Supp. of Gov't's Supplemental Resp. to Mot. to Suppress Evidence at 2:13-14 ("Knight Decl."); see also Nova Decl. at 4:9-10. There were vents on the sides of the buildings and exhaust vents for generators. See id. at 2:14-15. According to Sergeant Knight, marijuana growers need vents to grow indoor marijuana due to heat build up from the high powered lights used in the grow. Id.
Finally, Claimants have not shown that they took any steps to prevent outside observation of the Lewis property. The fences, if any, on the Lewis property are not sight-obstructing and the outbuildings appear easily visible from the open fields surrounding Lewis' property. See United States v. Brady, 993 F.2d 177, 179 (9th Cir. 1993).
2. Materiality and Standing
Claimants argue, however, that the agents illegally entered through a locked gate on an access road based solely on the declaration of Jessica Bittner, an adjacent land owner. Her declaration states that on July 12, 1999, she drove out of the driveway of her property adjacent to the Lewis property. There is a locked gate before the road to her property and Lewis' property divides into a "Y" shape with separate driveways going to each of their properties. See Bittner Decl. ¶ 2. She left at approximately 10:20 a.m. and locked the gate behind her. See Bittner Decl. at 1:27. When Bittner returned at 11:20 a.m., she found the previously locked gate opened. Id. at 2:1-2. As she continued down the driveway she saw numerous law enforcement officers riding quad-runner trails all about the real property. Id. at 2:7-8.
Bittner's declaration is not inconsistent with the government's position that it entered via the locked gate only after legally entering through the open fields and observing the indicia of marijuana. More fundamentally, even if the Court were to infer from Bittner's declaration that Claimants have raised a substantial question as to whether the lock was cut before or after the observations, the omission of that information would have to be material for Claimants to secure a Franks hearing. The Court is somewhat troubled that the United States did not disclose that the agents had cut the lock until after Claimants presented the Bittner declaration. Nonetheless, Claimants have failed to raise a real question as to whether the omission of this information from the affidavit in support of the search warrant was material to the finding of probable cause.
As set forth above, even if agents gain access to incriminating information by initially trespassing on the target's land, as long as they make the observations of marijuana cultivation from outside the curtilage the search is valid. See Traynor, 990 F.2d at 1157. While cutting a lock on a gate to an access road is more destructive than trespassing after climbing a fence, and may under some circumstances expose the government to some liability, lock-cutting is no more intrusive than trespassing on the privacy interest protected by the Fourth Amendment. Claimants no longer dispute that the incriminating observations were made close to the outbuildings. Rather, they argue, unpersuasively in this Court's view, that the observations were made within the protected curtilage. Therefore, inclusion in the affidavit of the information about cutting the lock would not have altered the probable cause determination.
The government also argues, though without citing any legal authority, that Claimants lack standing to raise the issue of cutting the lock since they failed to offer any proof that the gate where the lock was cut was on the Lewis property. Proof of standing is an essential element of any motion to suppress on Fourth Amendment grounds. Standing to challenge a search turns on whether the challenger had a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. The party moving to suppress evidence bears the burden of establishing Fourth Amendment standing. See Rawling v. Kentucky, 448 U.S. 98 (1980).
Here, Claimants failed to present any evidence as to their ownership or other interest in the gate or property on which the gate is located. Bittner's declaration only indicates that the gate is on an access road that later branches off into two driveways, one of which leads to Lewis' property. Therefore, Claimants may well lack standing to raise this issue. In view of the lack of necessity of this issue to the probable cause finding, however, the Court need not conclusively resolve this issue.
IV. CONCLUSION
Claimants' Motion to Suppress Evidence is DENIED. Furthermore, Claimants' request for a Franks hearing is DENIED since they failed to make a substantial preliminary showing that the affiant knowingly or recklessly included in the affidavit a statement that he knew was false or omitted material information and that the false statement or omission was necessary to the magistrate's finding of probable cause.
IT IS SO ORDERED.