United States v. Michael K. Gerard ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1655
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michael K. Gerard, *
*
Appellant. *
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Submitted: October 23, 2003
Filed: April 2, 2004
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Before RILEY, HEANEY, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Michael K. Gerard argues on appeal that his Fourth Amendment right to be free
from unreasonable search and seizure was violated. Gerard's argument is premised
on the fact that a police officer, without a warrant, climbed a ladder and attempted to
look inside his garage through a ventilation opening. Finding no constitutional error,
we affirm the district court.
I. Background
On February 17, 2002, Nebraska State Patrolmen entered Gerard's farm
property to locate Gerard because events earlier that night raised concern for his
safety.1 Upon arrival at the farmstead, Trooper Jeff Crymble observed a pickup truck
parked in a gravel driveway. The driveway separated the farmhouse from a two-story,
two-car garage (with a motorcycle visible inside). A fenced yard surrounded the
farmhouse. Crymble noticed two Rottweiler dogs within the fenced yard. The fence
did not enclose the garage.
Crymble and the other trooper began looking for Gerard or any other persons
present on the property. Crymble heard music coming from the garage. He attempted
to enter the garage by lifting the overhead doors; however, all the doors were locked.
He knocked on the garage door, but no one responded. Crymble testified that he could
see through some of the windows in the garage and noticed a radio located on the first
floor and that lights were on inside the garage. Using an extension ladder, which he
found lying on the ground next to the garage, Crymble ascended the ladder in an
attempt to see inside through a vent at the top of the garage. Moments before reaching
the vent, Crymble smelled the aroma of raw marijuana coming from the garage.
Immediately, Crymble descended the ladder and notified his supervisor,
Richard McKain. Based on Crymble's observation, McKain completed an affidavit
1
In the early morning of February 17, 2002, troopers chased a stolen vehicle
near Roscoe, Nebraska. The chase ended when troopers lost the vehicle south of
Roscoe. Trooper Jeff Crymble of the Nebraska State Patrol was assigned to assist in
a stolen-car investigation in the Roscoe area. While assisting in the search, a patrol
unit spotted two men running in a field near the Roscoe exit. The two men were
apprehended. Crymble conducted an officer-safety search of the two men. One of the
men possessed Gerard's credit card. Gerard was not with them. Crymble took the
credit card and attempted to contact the credit-card company in order to locate
Gerard. A phone call was placed to Gerard's residence. The officers testified that it
sounded as though someone answered the phone at Gerard's residence but then
immediately hung up. Upon this event, the officers decided they should go to Gerard's
house to find out why the arrested suspects had Gerard's credit card and to follow up
on the stolen-vehicle investigation.
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and obtained a search warrant for Gerard's farmstead including the two-story, two-car
garage. The subsequent search recovered marijuana. Three days later, Gerard was
indicted for manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846.
On May 6, 2002, Gerard filed a motion to suppress the evidence obtained from
the search of his garage on the ground that evidence supporting the search warrant
was based on an illegal search. On July 18, 2002, a suppression hearing was held
before a magistrate judge. The magistrate concluded that Crymble's obtaining and
climbing a ladder to look inside the locked garage constituted a search of Gerard's
property. The magistrate also concluded that the officer lacked probable cause to
search Gerard's garage, and that no exigent circumstances justified the warrantless
search. The magistrate judge recommended that the motion to suppress be granted.
The government filed objections to the magistrate judge's report and recommendation.
The district court2 denied the motion to suppress. In its order, the district court
first reasoned that the Leon good-faith exception applied.3 However, the district court
also found that the warrant was supported by probable cause. The district court denied
Gerard's motion to suppress in an order filed September 19, 2002.
2
The Honorable Richard G. Kopf, Chief Judge, United States District Court
for the District of Nebraska.
3
The court found the warrant to be facially valid, that the county judge issuing
the warrant was a neutral and detached magistrate, and that the affidavit was not so
lacking in probable cause that no reasonable officer would have relied on the warrant.
United States v. Leon, 468 U.S. 897, 922 (1984) (holding that where an officer relies
in objective good-faith on a seemingly valid search warrant the evidence obtained in
the search is not excluded).
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Subsequently, Gerard pleaded guilty to possession of marijuana with intent to
manufacture and distribute, in violation of 21 U.S.C. § 841. At a sentencing hearing
held on February 27, 2003, the district court sentenced Gerard to twelve months and
one day in prison, three years supervised release, and ordered a $100 special
assessment. Gerard argues on appeal that the search warrant lacked probable cause
and the evidence obtained under its authority should have been suppressed. He
contends that Crymble conducted an illegal search when he climbed the ladder to peer
through the vent of Gerard's locked garage. We disagree and hold the search was
constitutionally valid.
II. Discussion
We traditionally employ the "clearly erroneous" standard in reviewing the
district court's findings supporting a denial of a motion to suppress evidence obtained
by a warrantless search, United States v. Ball, 90 F.3d 260, 262 (8th Cir. 1996), but
we review legal conclusions de novo. United States v. Davis, 288 F.3d 359, 362 (8th
Cir. 2002) (citing United States v. Boyd, 180 F.3d 967, 975 (8th Cir. 1999)).
Gerard's principal argument is that Trooper Crymble's use and ascent of a
ladder on the side of the garage constituted an impermissible warrantless search and
thus invalidated the subsequent warrant-based search. Gerard's position is that
without the information obtained by climbing the ladder the warrant would not have
been supported by probable cause. Based on our review, we conclude no prohibited
search occurred prior to issuance of the warrant and that probable cause supported the
warrant.
A. Farmhouse's Curtilage
The Fourth Amendment protects a home and its curtilage –the area immediately
surrounding a dwelling house–from unreasonable warrantless searches. United States
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v. Dunn, 480 U.S. 294, 300–04 (1987). However, this protection does not extend past
the curtilage. Officers are permitted to enter a resident's property to observe buildings
located outside the home's curtilage. United States v. Mooring, 137 F.3d 595, 596
(8th Cir. 1998). The central component in deciding whether Gerard's garage was
within the curtilage of his farmhouse is to determine "whether the [garage] harbor[ed]
the intimate activity associated with the sanctity of [Gerard's] home and the privacies
of [his] life." Dunn, 480 U.S. at 300 (internal quotation marks omitted); United States
v. Mooring, 137 F.3d 595, 596 (8th Cir. 1998).
We resolve curtilage questions with particular reference to four factors: the
proximity of the garage to the farmhouse, whether the farmhouse and garage are
within the same enclosure, the nature and uses of the garage, and the steps Gerard
took to protect the garage from being seen by others. Dunn, 480 U.S. at 301;
Mooring, 137 F.3d at 596. "[E]very curtilage determination is distinctive and stands
or falls on its own unique set of facts." Daughenbaugh v. City of Tiffin, 150 F.3d
594, 598 (6th Cir. 1998) (quoting United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.
1996)). Therefore, these factors are analytical tools used in determining whether
Gerard's garage was so intimately tied to the farmhouse itself that it should be placed
under the farmhouse's umbrella of Fourth Amendment protection. Dunn, 480 U.S. at
301.
Applying these four factors to Gerard's farmstead and the area immediately
surrounding it, the district court's finding that the garage lay outside the curtilage of
the farmhouse was not clearly erroneous. First, the record does not contain evidence
of the distance from Gerard's house to his garage. Neither party included in its brief
the proximity of the garage to the farmhouse. However, Crymble testified that the
farmhouse and garage are in close proximity. The distance alone, however, is not
determinative that the garage should be treated as an adjunct of the house.
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Second, Gerard's garage did not lie within the fence surrounding the
farmhouse. However, Gerard urges that the natural enclosure of trees surrounding
both the farmhouse and the garage mark the home's enclosure and that the land within
it is protected by the home's curtilage. Specifically, Gerard argues that this wooded
vegetation surrounding the farmhouse and the garage, enclosing both into the same
wooded area, mark the farmhouse's curtilage similar to the protected curtilage found
in Daughenbaugh. 150 F.3d at 599. The fact that one's view from the road of the
garage is obscured by the trees does not itself establish that the garage should be
included within the farmhouse's Fourth Amendment protection. Reilly, 76 F.3d at1277–78) (explaining that the enclosure factor weighs against those who claim
infringement of the curtilage when their land is divided into separate parts by internal
fencing).
The facts of Daughenbaugh are readily distinguishable from the facts of the
case at bar. The garage in Daughenbaugh was in the backyard of the house and there
was no artificial enclosure. 150 F.3d at 598–99. The Sixth Circuit concluded that the
garage in the backyard of the house was sufficiently blocked from public view by
natural barriers and weighed this factor in favor of finding that the garage was within
the home's curtilage. Id. In contrast, Gerard's land is divided into separate parts by an
internal fence enclosing Gerard's farmhouse. Unlike the garage in Daughenbaugh,
Gerard's garage is located to the immediate left of the farmhouse and separated from
it by a driveway.
Third, Gerard contends that the parking of his car and motorcycle in the garage
are evidence that his garage was used for activities and privacies of domestic life
requiring Fourth Amendment protection. Contrary to Gerard's testimony about his use
of the garage, Crymble testified the garage appeared to only be used to store junk and
grow marijuana. However, Crymble did not have this evidence concerning Gerard's
use of the garage before he climbed the ladder. Objective data does not include that
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found only after officers have invaded the area in question. Reilly, 76 F.3d at 1279(emphasis added). We believe that reasonable officers would expect that the garage
was likely to be used for private activities. The garage's doors were locked, electricity
was wired to the garage, and it was close to the farmhouse, which are typical signs
of private activities. The third Dunn factor weighs in favor of finding that Gerard's
garage was protected. However, these factors are not applied mechanically or in
isolation; therefore, this factor alone does not require us to conclude that Gerard's
garage was intimately tied to the farmhouse.
Fourth, Gerard contends that he took steps to prevent casual onlookers standing
in open fields from viewing inside the garage. The garage was set back from the road,
situated so that it did not face the road. Gerard attempted to prevent public access to
his garage by placing locks on all three of the doors to the garage. In addition, Gerard
secreted the interior of the garage by placing plastic and cardboard in the windows.
Also, the contents of the garage were not visible from aerial surveillance.
However, the evidence also shows Gerard's driveway led from the road
directly to the garage. No internal fences prevented persons from approaching the
garage. Also, Gerard posted no signs excluding strangers from access to the garage.
Gerard did nothing to cover the marijuana odor escaping from the vent of the garage.
Lastly, the garage was not completely blocked from view of members of the public
driving down the street. Based upon the evidence in this case, we cannot say the
district court clearly erred in finding that Gerard's garage was not within the
farmstead's curtilage. We conclude that Crymble did not conduct an illegal search
when he climbed the ladder to peer through the vent of Gerard's locked garage.
United States v. Gill, 354 F.3d 963, 969 (8th Cir. 2004) (finding that an officer was
entitled to place a ladder against a building to look through an open window to ensure
that no one inside was in need of assistance).
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B. Probable Cause
On appeal of the grant or denial of a motion to suppress, we review the district
court's conclusions of law on probable cause de novo. United States v. Wells, 223
F.3d 835, 838 (8th Cir. 2000). "When reviewing the sufficiency of an affidavit to
support a finding of probable cause, we must consider the totality of the
circumstances." United States v. Wells, 223 F.3d 835, 839 (8th Cir. 2000). "A search
is supported by probable cause if facts are shown making it likely that evidence of a
crime will be found in the place to be searched." United States v. Koons, 300 F.3d
985, 990 (8th Cir. 2002).
The Supreme Court recognizes that the odor of an illegal drug can be highly
probative in establishing probable cause for a search. Johnson v. United States, 333
U.S. 10, 13 (1948); accord United States v. Caves, 890 F.2d 87, 91 (8th Cir. 1989).
Circuits have held that the odor of marijuana, standing alone, is sufficient to support
probable cause. United States v. Tobin, 923 F.2d 1506, 1512 n.4 (11th Cir. 1991);
United States v. Nielson, 9 F.3d 1487, 1490–91 (10th Cir. 1993); United States v.
Elkins, 300 F.3d 638, 659 (6th Cir. 2002); United States v. Moore, 329 F.3d 399, 405
(5th Cir. 2003).
Here, McKain's affidavit provided (1) evidence that the officers believed that
Gerard could be hurt within the garage, (2) that someone was recently in the garage
because a light was on inside and music was coming from a small radio located on the
floor inside the garage, (3) that Gerard's credit card was found on a recent arrestee,
and (4) that the odor of marijuana was emanating from the vent of the garage when
Crymble climbed the ladder. Given the totality of the circumstances present, we
conclude that the affidavit stated sufficient facts making it likely that evidence of a
crime would be found in Gerard's garage. Because we hold that there was probable
cause supporting the search warrant, we need not address whether the district court
erred in applying the Leon good-faith exception.
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III. Conclusion
Based on the foregoing analysis, we affirm the decision of the district court.
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