United States v. Perry , 95 F. App'x 598 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
_______________________
Charles R. Fulbruge III
No.03-40520 Clerk
_______________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROY JAMES PERRY,
Defendant – Appellant.
_______________________
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont Division
USDC No. 1:02-CR-47-1
_______________________
Before JONES, WIENER, and PRADO, Circuit Judges.
PER CURIAM:1
Roy James Perry (Perry) was convicted of one-count of
manufacturing and possessing with the intent to distribute
between 100 and 1,000 marijuana plants under 21 U.S.C. § 841(a)(1). Perry appeals his conviction, asserting that the
district court erred by denying his motion to suppress the
marijuana plants and a clipboard seized by law enforcement. For
the reasons stated below, we uphold the district court’s denial
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
1
of Perry’s motion to suppress and affirm his guilty-plea
conviction.
FACTUAL & PROCEDURAL BACKGROUND
On July 6, 2001, Special Agent Marichael Pope (Special Agent
Pope) of the Drug Enforcement Agency (DEA) and other law
enforcement officers received a tip that marijuana was being
grown in an area off County Road 2331 in Liberty County, Texas.
A DEA agent performed an overflight of the area and reported
seeing some patches of marijuana growing there. Special Agent
Pope then flew over the area in a helicopter to investigate
further.
Special Agent Pope testified that, during his aerial search,
he observed marijuana plants growing on a tract of brushy, wooded
land, which belonged to Perry’s family. Special Agent Pope also
observed two structures near the plants — one about the size of
an outhouse, and the other approximately three times larger. He
testified that, from the air, he was able to ascertain that no
one inhabited the smaller structure, but was unable to tell if
anyone lived in the larger building.
Having concluded that marijuana was being grown in the
field, Special Agent Pope landed his helicopter on the property
approximately twenty yards from the plants he had seen from the
air. He then investigated on foot and confirmed three patches of
marijuana were being cultivated with an irrigation system on
Perry’s property. He also located the two structures he had seen
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aerially. Special Agent Pope stated he was able to determine
these buildings were not residences because they were not fully
enclosed. He observed that the smaller shed contained
fertilizer, gardening tools, and other plant cultivation
products, and the larger shed appeared to house an indoor growing
area.
After Special Agent Pope’s investigation on the ground, he
contacted Sergeant Jack Smith (Sergeant Smith) of the Texas
Department of Public Safety (TDPS). Sergeant Smith arrived and
also performed an aerial search of the field. From the
helicopter, Sergeant Smith discerned the marijuana plants, a
well, irrigation lines, and sheds on the property. He testified
that, from the air, he observed no structures that were obviously
residences, but that he was not certain the larger shed was not a
residence until he later entered the property.
Initially, Sergeant Smith refused to enter the property
without a warrant. Sergeant Smith and Special Agent Pope
discussed whether a warrant was needed in order to enter the
property legally, and sought the advice of an Assistant United
States Attorney (AUSA). Both Special Agent Pope and Sergeant
Smith testified that they could have obtained a warrant if
necessary and that there were no exigent circumstances. However,
the AUSA and Special Agent Pope agreed that no warrant was
required because the property was an “open field” not afforded
protection under the Fourth Amendment. Thus, law enforcement
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officers cut a lock on the gate to the property and entered the
land in all-terrain vehicles. Law enforcement seized 594
marijuana plants and a clipboard that was in the smaller shed.
Perry was charged in a one-count indictment with
manufacturing and possessing with the intent to distribute
between 100 and 1,000 marijuana plants under 21 U.S.C. § 841(a)(1). Perry filed a motion to suppress the evidence seized by
law enforcement. At the suppression hearing, Perry conceded that
the “open fields doctrine” permitted the search of the property,
but maintained the doctrine did not allow the subsequent seizure
without a warrant. The Government, on the other hand, argued
that no warrant was necessary under the open fields doctrine.
The district court denied Perry’s motion to suppress. Perry
conditionally pleaded guilty to the indictment, reserving his
right to appeal the denial of his motion to suppress. Perry
timely appealed his conviction.
DISCUSSION
On appeal, Perry contends the district court erred in
denying his motion to suppress evidence seized on his property.
Perry renews his argument that, while the aerial search of the
land was permissible under the open fields doctrine, the
warrantless seizure of his property violated the Fourth
Amendment.
In reviewing a ruling on a motion to suppress made after a
suppression hearing, we accept the trial court’s factual findings
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unless they are clearly erroneous or influenced by an incorrect
analysis of the law, and review conclusions of law de novo.
United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993); United
States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984). In
addition, this Court “view[s] the evidence in the light most
favorable to the prevailing party.” United States v. Piaget, 915
F.2d 138, 140 (5th Cir. 1990). As Perry challenges only the
district court’s legal conclusions, the issues in this case are
reviewed de novo.
Under the exclusionary rule, “evidence obtained in violation
of the Fourth Amendment cannot be used in a criminal proceeding
against the victim of [an] illegal search and seizure." United
States v. Calandra, 414 U.S. 338, 347 (1974) (citations omitted).
Searches and seizures conducted by law enforcement, without prior
approval by a judge or magistrate, are per se unreasonable unless
the government can show that the search and seizure falls within
one of the few specifically defined exceptions to the warrant
requirement. See Minnesota v. Dickerson, 508 U.S. 366, 372
(1993). The "open fields doctrine" provides one of those
exceptions.
In Hester v. United States, 265 U.S. 57, 59 (1924), the
Supreme Court held that "the special protection accorded by the
Fourth Amendment to the people in their 'persons, houses, papers
and effects,' is not extended to open fields." The Court
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reaffirmed the open fields doctrine more recently in Oliver v.
United States, 466 U.S. 170 (1984). In Oliver, the Court found
there can be no “search” of an open field within the meaning of
the Fourth Amendment because society does not recognize an
expectation of privacy in such areas – even when those areas are
bounded by fences with "no trespassing" signs. Id. at 178-81.
As a preliminary matter, we must determine the scope of the
seizure at issue. Perry contends that the seizure consisted not
only of the confiscation of the marijuana plants and clipboard,
but also included Special Agent Pope’s landing of the helicopter
on Perry’s property, the cutting of the lock on the gate, and the
entry of vehicles onto the land. This argument is misplaced.
The entrance of law enforcement onto the land constituted a
search of an open field rather than a seizure. Such searches are
not protected by the Fourth Amendment under the open fields
doctrine as set forth in Oliver.
In Oliver, the Supreme Court held that Fourth Amendment
protection does not extend to open fields, even when a government
agent trespasses on land that is private property. Id.; see also
Husband v. Bryan, 946 F.2d 27, 29 (5th Cir. 1991). Oliver
involved two cases consolidated on appeal. In both cases, law
enforcement physically entered a defendant’s property without a
warrant. In one case, the officers drove past a locked gate with
a "No Trespassing" sign on it. In the other case, the officers
walked past the defendant's residence to reach the open land.
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Oliver, 466 U.S. at 173-74. The Supreme Court concluded these
intrusions upon open fields did not implicate the Fourth
Amendment and that no warrant was required. Similarly, the
agents in the instant case entered Perry's brushy, undeveloped
property in order to search for the marijuana they had observed
from the air. Thus, the Government's physical entry onto Perry's
property did not constitute a seizure, but was rather a legal
search afforded no Fourth Amendment protection under the open
fields doctrine.
Under the foregoing reasoning, the challenged seizure
consisted only of the confiscation of the marijuana plants and
the removal of a clipboard from one of the sheds. Thus, we must
next determine whether the warrantless seizure of those items
violated Perry’s rights under the Fourth Amendment. Perry
contends the seizure was illegal because it was not sanctioned
under the open fields doctrine. However, it is unnecessary for
us to address this argument, as we find the plants and clipboard
were legally seized under the “plain view doctrine.”
It is well-established that under certain circumstances,
officers may seize evidence in plain view without a warrant.
Horton v. California, 496 U.S. 128, 134 (1990) (internal citation
omitted). The plain view doctrine will support a warrantless
seizure if: (1) the officer was lawfully in the position from
which the object was plainly seen; (2) the object was in plain
view; (3) the object’s incriminating nature was immediately
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apparent – i.e., the officer had probable cause to believe the
object was contraband or evidence of a crime; and (4) the officer
had a lawful right of access to the object itself. See id. at
136-37; United States v. Paige, 136 F.3d 1012, 1023 (5th Cir.
1998); United States v. Buchanan, 70 F.3d 818, 826 (5th Cir.
1995). We find that the seizure in this case satisfies each of
these elements.
The first element in this analysis requires the officers to
have lawfully been in the position from which they viewed the
contraband. Here, Sergeant Smith and Special Agent Pope each
initially viewed the three patches of marijuana plants from the
air and then entered Perry’s property for a closer look. As
discussed above, both the aerial searches and entry onto the
property — which allowed the officers to plainly view the
marijuana plants, the two sheds and certain of their contents —
were legal under the open fields doctrine. Thus, the officers
were lawfully in a position to observe the seized property.
To satisfy the second element under the plain view doctrine,
the plants and clipboard on Perry’s property must have been in
plain view. The officers testified that they first identified
the marijuana plants while flying over the field in a helicopter.
Even more clear was their view of the plants once they had
lawfully entered the property. Furthermore, Special Agent Pope
and Sergeant Smith testified that the contents of the smaller
shed, which included such items as the clipboard seized, were
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plainly visible from the outside because that structure was not
fully enclosed. The officers stated the smaller shed was
essentially open because it lacked a full wall on one side.
Under these circumstances, we find the plants and clipboard were
in plain view of the officers.
The third element requires a showing that the incriminating
nature of the marijuana plants and the clipboard was “immediately
apparent”. For purposes of the plain view exception, the
incriminating nature of an item is immediately apparent if the
officers had probable cause to believe the item was contraband or
evidence of a crime. See Buchanan, 70 F.3d at 826.
Here, Special Agent Pope and Sergeant Smith were DEA and
TDPS officers who each had substantial training and expertise in
identifying marijuana. Special Agent Pope had been part of the
aerial surveillance suppression and eradication program of the
DEA since 1994, and had been coordinator of that program since
1999. He testified that since 1994, he had seen approximately
several hundred marijuana cultivation sites per year. Sergeant
Smith was likewise experienced, having been employed in the
narcotics division of TDPS for fourteen years, and having taught
suppression schools with TDPS for much of that time.
Accordingly, we are satisfied that the officers had probable
cause to believe the three fields of plants they identified from
the air and on the ground consisted of marijuana contraband. See
United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001)
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(noting that the plain view doctrine would have permitted an
officer to seize marijuana plants in the defendant’s backyard
without a warrant, and that the officer’s training and expertise
made the incriminating nature of the plants “immediately
apparent”).
Sergeant Smith also seized a clipboard from the smaller of
the two sheds on the property, which also contained products such
as fertilizer and gardening tools. According to testimony of the
officers, the clipboard appeared to be a kind of log concerning
plant cultivation. Sergeant Smith testified that law enforcement
saw no other evidence of gardening or plant cultivation on the
property other than the fields of marijuana. Thus, Sergeant
Smith concluded the objects contained within the smaller shed,
including the clipboard, were being utilized in the cultivation
of the marijuana seized on the property. We find that, based on
his confiscation of 594 marijuana plants nearby and his
experience in identifying marijuana-growing paraphernalia,
Sergeant Smith had probable cause to believe the clipboard seized
was evidence of a crime.
Under the fourth and last requirement of the plain view
exception, we must determine whether the officers had a lawful
right of access to the marijuana and clipboard. This element of
the plain view doctrine protects individuals from warrantless
seizures “in situations such as when an officer on the street
sees an object through the window of a house, or when officers
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make observations via aerial photography or long-range
surveillance.” Paige, 136 F.3d at 1024 (quoting G & G Jewelry,
Inc. v. City of Oakland, 989 F.2d 1093, 1101 (9th Cir. 1992)).
In those cases, the plain view doctrine does not justify a
warrantless seizure because persons still retain an expectation
of privacy, which requires a warrant for legal entry, upon their
private premises. See id.As explained at length above, however, the open fields
doctrine dictates that Perry retained no such expectation of
privacy in his rural property, and the physical entrance of DEA
and TDPS officers onto his land was lawful without a warrant.
See Oliver, 466 U.S. 170 (holding that searches involving the
physical entrance of officers onto land were legal without a
warrant because the defendants had no expectation of privacy in
open fields); see also Paige, 136 F.3d at 1024. Therefore, the
officers had a lawful right of access to the actual land where
the marijuana and sheds were located. Further, we find that
Perry had no reasonable expectation of privacy in an open shed
that was visibly not a residence or within the curtilage of a
residence, and that was located in an open field. Thus, the
officers had a lawful right of access to the clipboard as well.
Consequently, we conclude that under the plain view doctrine, the
warrantless seizure of the marijuana plants and the clipboard did
not violate the Fourth Amendment.
CONCLUSION
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In summary, we hold that the Government’s search of Perry’s
property, consisting of the aerial inspection and physical entry
onto the land, was legal without a warrant under the open fields
doctrine. Further, the subsequent warrantless seizure of the
marijuana and clipboard was lawful under the plain view exception
to the warrant requirement. Because the district court properly
denied Perry’s motion to suppress, we AFFIRM Perry’s conviction.
AFFIRMED.
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