F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 16, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 05-7044
v. (D.C. No. 04-CR-90-P)
(E.D. Okla.)
JAMES DANIEL SECKMAN,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges. **
Defendant-Appellant James Daniel Seckman entered a conditional plea of
guilty to manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1),
and was sentenced to 115 months imprisonment and three years supervised
release. The district court denied his motion to suppress based upon the
recommendation of a magistrate judge. Our jurisdiction arises under 28 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
§ 1291 and we affirm.
The parties are familiar with the facts and we need not restate them here.
The magistrate judge determined that Mr. Seckman was legally stopped for
speeding and that a search of his motorcycle, including a camouflage bag attached
thereto, was based upon probable cause. Inside the bag, 48 unopened boxes of
pseudoephedrine tablets (60 mg. each) and four bottles of “Heet” gas line
antifreeze were found. These items may be used in the manufacture of
methamphetamine. On appeal, Mr. Seckman does not challenge this stop, seizure
or search.
He does challenge the search of his home pursuant to a warrant obtained by
the arresting officer. Initially, Mr. Seckman claimed that were the evidence from
the motorcycle suppressed, the affidavit in support of the search warrant would be
insufficient to establish probable cause. The magistrate judge having rejected that
premise, the focus shifted to whether other information contained in the affidavit
provided by state narcotics agents was obtained unlawfully and therefore should
be excluded. That information was as follows:
On 08/29/03 Agents from the Oklahoma Bureau of Narcotics located
marijuana plants growing near SECKMAN’S residence and
outbuildings. While at the residence retrieving the marijuana plants
the Agents found items consistent with the clandestine manufacture
of methamphetamine including HCL gas generators and two-layer
liquids. The Agents also found a burn pile containing partially-burnt
tincture of iodine containers, “Heet” brand gas line antifreeze
containers, and camp fuel containers. A chemical odor the Agents
-2-
associated with the clandestine manufacture of methamphetamine
was also present near the residence and outbuildings.
Aplt. App. tab 6, at unnumbered p. 3, ¶ 13. The magistrate judge was troubled by
the officer’s testimony that the marijuana plants were discovered some 50 to 100
yards from Mr. Seckman’s residence during a fly-over by state narcotics agents.
After they seized the plants, the agents approached Mr. Seckman’s residence
without a warrant and discovered the above items within the curtilage.
According to the magistrate judge, this testimony implicated whether the
information in the above paragraph should be excluded from the probable cause
determination because it was obtained unlawfully, i.e. without a warrant, or
because the circumstances surrounding it were not fully disclosed in the affidavit.
The magistrate judge thought it problematic as to whether the other information in
the affidavit would provide probable cause to search Mr. Seckman’s residence.
The magistrate judge declined to answer these questions “because the parties did
not address them adequately in their briefs or at the suppression hearing.” Aplt.
App. tab 3, at 13. Instead, it applied the good-faith exception in United States v.
Leon, 468 U.S. 897 (1984), holding that the omission of the circumstances
leading to the above paragraph was inadvertent and that an officer could
reasonably believe the affidavit and resulting warrant were sufficient.
When reviewing the denial of a motion to suppress, we view the facts in the
light most favorable to the government and review findings of fact for clear error.
-3-
United States v. Riccardi, 405 F.3d 852, 859 (10th Cir. 2005). Our review of the
application of the good-faith exception to the warrant requirement is de novo.
United States v. Nielson, 415 F.3d 1195, 1203 (10th Cir. 2005).
A defendant challenging a search pursuant to a warrant has the burden of
proof. United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994); United
States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993). In the context of a warrant
that a defendant claims is invalid due to a deliberate falsehood or a reckless
disregard for the truth, the rule is the same. See Franks v. Delaware, 438 U.S.
154, 171 (1978); Maestas, 2 F.3d at 1491. As was done here, it is possible to
address the good faith exception before determining whether a warrant is
deficient for lack of an affidavit establishing probable cause. See Leon, 468 U.S.
at 924-25. But usually it is difficult to assess the reasonableness of law
enforcement action without specific facts analyzed against a backdrop of the
Fourth Amendment. Moreover, such Fourth Amendment analysis is useful in
developing the law. See id. at 925; United States v. Danhauer, 229 F.3d 1002,
1005 (10th Cir. 2000).
We have serious reservations about whether Mr. Seckman met his burden of
establishing that the affidavit in support of the warrant was deficient. Although
the magistrate judge determined that the incriminating evidence discussed in the
warrant was within the curtilage of the defendant’s home, he could not say
-4-
whether the narcotics agents were within the curtilage when they observed this
evidence. As the proponent of a motion to suppress evidence obtained with a
warrant, it was incumbent on Mr. Seckman to develop such facts.
Although the curtilage is entitled to Fourth Amendment protection, what
constitutes the curtilage requires an analysis of “whether an individual reasonably
may expect that an area immediately adjacent to the home will remain private.”
Oliver v. United States, 466 U.S. 170, 180 (1984). Factors considered include (1)
the proximity of the area to the house, (2) whether the area is included within an
enclosure surrounding the home; (3) how the area is used; and (4) any steps taken
by the resident to protect the area from observation. United States v. Dunn, 480
U.S. 294, 301 (1987). These factors help in determining the primary inquiry:
“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.
If the narcotics agents made their observations from places where visitors
could be expected to go, i.e. walkways, driveways or porches, or even open fields
on private property, such vantage points are not within Fourth Amendment
protection. United States v. Hatfield, 333 F.3d 1189, 1194-95, 1198-99 (10th Cir.
2003); Fulbright v. United States, 392 F.2d 432, 434-35 (10th Cir. 1968). On the
other hand, if the agents made their observations from the curtilage, that would
implicate the Fourth Amendment. Hatfield, 333 F.3d at 1198; Fullbright, 392
-5-
F.2d at 434-35.
The premise of Mr. Seckman’s argument is that the affidavit in support of
the warrant should have disclosed that the observations about his residence were
the product of a Fourth Amendment violation, i.e. a warrantless entry onto the
curtilage. The record in this case is inadequate to support that premise.
Specifically, the appendices in this case contain the judgment, the affidavit for the
search warrant, the disposition by the district court and report and
recommendation of the magistrate judge and two pages of the transcript of the
suppression hearing. Aplt. App. & Aplee. App. Mr. Seckman’s brief quotes
another page of the suppression hearing not contained in the appendices. Aplt.
Br. at 6-7. Nowhere is the nuanced analysis that would be required to determine
whether a valid Fourth Amendment claim exists concerning whether the agents’
observations were made from a protected vantage point, let alone whether the
warrant in this case should have disclosed fully the circumstances surrounding
those observations. Though the officer in this case testified that the agents went
to the house without a search warrant, that really does not resolve the issue. Aplt.
Br. at 7.
We reject Mr. Seckman’s argument that a reasonably well-trained officer
would have known that the search was illegal despite the warrant, and that the
material omission of the circumstances surrounding the observations of the agents
-6-
is tantamount to a false statement. No indication exists in this record that the
officer deliberately or recklessly misled the state court judge, or that the judge
abdicated his duty. Thus, we need not address the contention that without the
agents’ observations, the affidavit for the warrant lacked probable cause.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-7-