United States v. Diehl

United States Court of Appeals
For the First Circuit

Nos. 01-1623
01-1624

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW DIEHL AND WILLIAM CUMMING,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Saris,* District Judge.

David M. Sanders, by Appointment of the Court, for appellant
Cummings.
Walter Hanstein, by Appointment of the Court, for appellant
Diehl.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

*Of the District of Massachusetts, sitting by designation.
January 9, 2002
 COFFIN, Senior Circuit Judge. These are consolidated

appeals arising out of successful prosecutions of defendants-

appellants Diehl and Cumming for conspiring to manufacture,

manufacturing, and possessing with intent to distribute

marijuana. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 846.

Appellants entered conditional pleas of guilty after the

district court denied motions to suppress evidence obtained in

a search of their property in a remote and secluded area of

western Maine.

At issue is the search warrant, which is challenged on two

grounds. First, appellants claim that the warrant improperly

included the averment of Agent Milligan of the Maine Drug

Enforcement Agency ("MDEA") that he had detected the odor of

growing marijuana as he approached appellants’ camp house during

a previous, surreptitious visit to the property. They assert

that the agent was illegally within the curtilage of the

residence when he encountered the smell. Second, appellants

claim there was insufficient basis for issuing a “no-knock”

night-time warrant.

The magistrate judge, after an evidentiary hearing, ruled

that Milligan was not within the curtilage of appellants’ home

when he detected the telltale odor of growing marijuana and that

there was adequate justification for the no-knock warrant. The

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district court affirmed based on the analysis in the magistrate

judge's opinion. We conclude that Milligan was unlawfully

within the curtilage at the critical time, but that the search

warrant survives the challenge under the good-faith standard of

United States v. Leon, 468 U.S. 897 (1984). We also hold that

the affidavit underlying the search warrant gave sufficient

basis for the issuance of a no-knock warrant. We therefore

affirm the judgments.

I. Background

The evidence appellants seek to suppress -- drugs and

various drug-manufacturing items -- was seized pursuant to a

facially valid warrant permitting a search of their 17-acre

parcel of land in Phillips, Maine. The primary focus of these

appeals, however, is an earlier, warrantless entry onto the

property by Agent Milligan and two associates. Throughout this

case, the government has taken the position that Milligan's

report that he smelled marijuana during that visit was necessary

to establish the probable cause justifying issuance of the

warrant. Whether or not we would agree with that conclusion, we

consider ourselves bound by it. Thus, if Milligan obtained the

olfactory evidence through conduct that violated the Fourth

Amendment, the warrant would have been defective and the

resulting search would have been unlawful. Appellants contend

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that Milligan violated the law because he was within the

curtilage of their home without permission when he obtained the

critical evidence.

To set the stage for our legal discussion, we describe below

appellants' property, the evidence presented in the warrant

application, including details of Milligan's pre-warrant visit,

and the testimony given at the hearing on appellants'

suppression motion.

The Property. Appellants’ property was reached only by

proceeding some 700 feet along a discontinued town road (the Old

Bray Hill Road), then ascending a 500-foot dirt driveway, which

was bordered closely by forest and contained a dogleg turn

shutting off a view of the full length. “No Trespassing” signs

were posted at the beginning and near the end of the driveway.

The driveway terminated in a clearing of less than half an acre.

In the clearing was a crude camp, occupied by appellant Diehl,

his wife, and appellant Cumming, an outhouse, a pen for animals,

and a line for drying laundry. At the time of the search in

February 2000, the clearing was covered by snow except for a

plowed parking area for vehicles. Beyond the camp, a path led

to a 20-by-72-foot wood storage building, which housed

appellants' marijuana production operation.

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 The Warrant Application. Before Agent Milligan made the

warrantless entry onto appellants’ property, he had assembled

the following information, which he later included in his

affidavit: Franklin County Deputy Sheriff Cayer had reported

that a public safety official whom the sheriff considered

reliable had relayed statements from three Massachusetts hunters

that, during the preceding November, they were near a newly

constructed, windowless barn or garage-type building on the

property when three men emerged with rifles and ordered them off

the land; in May 1999, a Florida company, Ian Fabrications,

purchased the property in question and obtained a town permit to

construct a 20-by-72-foot storage building, with no septic or

water facilities; appellant Cumming identified himself as one of

four men running the company, but refused to answer the town

clerk's question about the nature of the business. The

application further reported that when Deputy Cayer and another

deputy recently drove to the property to investigate, Cumming

ran to their vehicle before they had a chance to exit, and

another man was seen nervously peeking out from a door; that

Cayer had learned that appellant Diehl was the only named

officer of the company; that the company had been dissolved by

Florida in September 1999 for failure of documentation and had

no papers on file with the Maine Secretary of State; and that

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the local postmaster indicated that the company had received no

business-related mail.

The warrant application also recited that Milligan,

suspecting that the new storage building in such a remote spot

might be the site of an elaborate indoor marijuana cultivation

operation, procured an administrative subpoena and received

power consumption records from Central Maine Power Company

showing that the camp, during the past eight months, had

consumed 16,627 kilowatt hours of power, while the storage

building in the last three months had consumed 12,731 kilowatt

hours (an average monthly use more than twice that of the camp);

and that, on February 23, 2000, at 2:45 a.m., using a thermal

detection device while flying in a helicopter at about 1,000

feet, Milligan determined that heat was escaping from portions

of the camp and “on all sides of the storage building,” and that

surface temperatures -- especially for the storage building --

were “significantly higher” than normally found in similar

structures.

The application concluded with averments that cultivating

marijuana under high intensity discharge lamps creates a large

amount of heat, necessitating venting of excess heat and stale

air, and with several statements, which we will discuss later,

addressed to the need for a no-knock/night-time warrant.

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 Milligan also described the conduct giving rise to the

curtilage issue. Paragraph 14 reports that at about 3 a.m. on

February 24, 2000, he and two other officers went on foot to

"the non-curtilage area of the property” to conduct a better

thermal detection inspection of the camp and storage building.

Milligan describes what happened as follows:

While standing on the dirt road away from the
curtilage of the camp, I pointed a hand-held thermal
detection device at the camp and began my survey.
While doing so, I could hear a loud “hum” which is
consistent with noise made from ballasts providing
power to high intensity lights commonly used in indoor
marijuana cultivation operations. I could also hear
at least two males laughing and talking inside the
camp. Moments later, I could smell a strong odor of
what I recognized to be growing marijuana coming from
the property in question. Since I could smell
marijuana and realized that suspects were awake inside
the camp, I decided to terminate the thermal
inspection and withdraw from the property to ensure
officer safety.

The search warrant was issued at 7:17 p.m. the next day,

authorizing an unannounced, night-time search. The search

yielded 360 growing marijuana plants, 483 “cuttings” in a

rooting compound, scales, grow lights, seeds, and harvested

marijuana.

The Hearing. The magistrate judge granted a hearing on

appellants’ motions to suppress. In testifying about the 3 a.m.

approach on February 24, Milligan said that he and his two

associates first attempted to walk through the woods directly to

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the storage building but the snow was too deep. They then

followed what Milligan called the dirt road or driveway off Old

Bray Hill Road to a utility pole at the edge of the clearing.

He said that the driveway was plowed at least to the camp, but

he did not go all the way. He was in the lead of his group and

was manipulating the thermal imaging device. On direct

examination, he said that he did not go past the pole. On cross

examination he said that he remembered taking only two steps

beyond the pole, then later, after reviewing a video, said he

thought he was fifty, then later, thirty feet behind the pole

when he was operating the imager.

The parties had visited the property in the summer following

the search in an effort to pinpoint Milligan's location when he

smelled marijuana. A comparison video was made and showed a

telephone pole at the entrance to the driveway, a second one at

the curve in the driveway, and a third telephone pole at the

beginning of the clearing, eighty-nine feet from the camp.

Cumming testified that Milligan must have been between the last

pole and the camp, approximately eighty-two feet from the

residence. The magistrate judge, relying on the video and

Milligan’s inconsistent versions, so found.

Other evidence addressed the steps taken by appellants to

protect their privacy. They had refused to allow a straight

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swath to be cut for a power line from the Old Bray Hill Road to

their buildings, and instead cleared an indirect path so that

the line could follow the bend in the driveway. They had their

mail delivered to a post office box in town. They instructed

UPS to leave parcels at a store. They reached an understanding

with their nearest neighbor to respect their passion for

privacy. In the three months preceding the events in question,

they had received only three visitors: the prior owner, the tax

assessor, and local police who were trying to unearth some

information about appellants.

Finally, there was testimony about the uses to which the

clearing around the camp had been put. Because the living

quarters were minimal and poorly sound-proofed, appellants and

Mrs. Diehl testified that they would go outdoors to talk, use

the portable telephone, meditate, read, write letters, play with

pet goats, play frisbee and horseshoes, usher in the new year,

and hang laundry on the line. Cumming occasionally would

urinate there if the camp bathroom were occupied, and he

sunbathed in the nude. The Diehls would repair to a bench for

intimate times, even well into the fall. Milligan had no

knowledge of such activities. When he made his approach, snow

was on the ground and one vehicle was buried, another parked on

the plowed area.

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 II. The Curtilage Issue

A. Standard of Review

In reviewing a district court's curtilage decision, we

confront a mixture of specific factual questions, such as

distances, visibility, boundaries, and uses of property, as well

as legal conclusions. This court has never specifically

articulated the standard of review applicable to curtilage

determinations, but we believe that United States Supreme Court

precedent and our own caselaw call for clear error review of the

district court's factual findings and de novo review of the

court's legal conclusions.

In Ornelas v. United States, 517 U.S. 690, 698-99 (1996),

the Supreme Court endorsed a de novo standard of review for the

ultimate resolution of similar Fourth Amendment questions: the

determination of "reasonable suspicion" and "probable cause."

As in those inquiries, the question of curtilage requires a

court to make a legal judgment about the significance of a

collection of facts. We borrow the observations of the Ninth

Circuit in United States v. Johnson, 256 F.3d 895 (9th Cir.

2001) (en banc)1:

1
The Ninth Circuit in Johnson issued two majority decisions
resolving different issues. Six of the eleven judges signed the
opinion adopting this standard of review. In a concurrence,
Judge Tashima observed that that holding was dictum because the
court was not in actuality reviewing a curtilage determination

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 The curtilage question turns on "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." [United States v.
Dunn], 480 U.S. [294, 301 (1987)]. The question of
whether an area should be protected by the Fourth
Amendment is not ultimately a factual one. It depends
upon whether the government's intrusion in the area
"infringes upon the personal and societal values
protected by the Fourth Amendment." Oliver [v. United
States, 466 U.S. 170, 182-83 (1984)]. In making that
determination, a court must apply this legal value
judgment to the facts of each case.

Id. at 912-13 (footnote omitted). The application of law to a

particular set of facts is not "peculiarly within the province

of the district courts," id. at 913, and indeed, "[i]ndependent

review is . . . necessary if appellate courts are to maintain

control of, and to clarify, the legal principles," Ornelas, 517

U.S. at 697.

Even before the Court's decision in Ornelas, we had utilized

"this dichotomous standard of review" for constitutional

questions involving a mix of fact and law. See United States v.

Schaefer, 87 F.3d 562, 565 n.2 (lst Cir. 1996) ("The Ornelas

Court's holding is fully consistent with this circuit's

precedent . . . ." (citing United States v. Zapata, 18 F.3d 971,

in light of the other majority's decision to remand the case to
the district court for a decision on that issue in the first
instance. See 256 F.3d at 919-20. Judge Kozinski, writing for
four of the six-person majority on the standard of review,
explored the concept of dicta and concluded that the holding on
standard of review has precedential force. See id. at 914-16.

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975 (lst Cir. 1994) ("In scrutinizing a district court's denial

of a suppression motion, the court of appeals will review

findings of fact for clear error, while at the same time

subjecting the trial court's ultimate constitutional conclusions

to plenary oversight."))).2 We therefore explicitly extend this

approach to findings that particular locations are within or

outside a home's curtilage.3

B. The Dunn Analysis

We thus proceed to consider whether Milligan unlawfully

stood within the curtilage of appellants' home when he detected

2
Before Ornelas, courts typically considered curtilage
questions as factual matters subject to clear error review. See,
e.g., United States v. Friend, 50 F.3d 548, 552 (8th Cir. 1995),
vacated and remanded on other grounds by Friend v. United
States, 517 U.S. 1152 (1996); United States v. Benish, 5 F.3d
20, 23-24 (3d Cir. 1993); United States v. Knapp, 1 F.3d 1026,
1029 (10th Cir. 1993); United States v. Hatch, 931 F.2d 1478,
1480 (llth Cir. 1991); Hodges v. United States, 243 F.2d 281,
283 (5th Cir. 1957). The Ninth Circuit thus far appears to be
the only circuit to have expressly adopted the de novo standard
based on the Supreme Court's decision. The Second Circuit in
United States v. Reilly, 91 F.3d 331, 331 (2d Cir. 1996) (per
curiam), assumed but did not decide that Ornelas requires de
novo review. The Seventh Circuit in United States v. Shanks, 97
F.3d 977, 979 (7th Cir. 1996), inexplicably cited Ornelas
without discussion in applying a clearly erroneous standard.
3
We emphasize, as did the Court in Ornelas, that this
standard confers a substantial degree of deference on the
district court in the first tier of review: "[W]e hasten to
point out that a reviewing court should take care both to review
findings of historical fact only for clear error and to give due
weight to inferences drawn from those facts by resident judges
and local law enforcement officers." 517 U.S. at 699.

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the smell of marijuana. We are given an unusual combination of

specific and general guidance in United States v. Dunn, 480 U.S.

294 (1987).

In Dunn, the Court spelled out four specific factors to be

addressed: “the proximity of the area claimed to be curtilage to

the home, whether the area is included within an enclosure

surrounding the home, the nature of the uses to which the area

is put, and the steps taken by the resident to protect the area

from observation by people passing by.” Id. at 301. Then,

however, the Court cautioned that these factors are useful only

to the extent they shed light on “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.

Therefore, although we defer to findings regarding specific

events, conditions, and structures, our basic issue is whether

this central legal standard has been met.

We first must dispose of the government's contention that

there is a simple answer to our problem, short of getting into

the curtilage issue. The government would have us rule that

Milligan’s presence in a driveway, near a utility pole bearing

a meter, vitiates any expectation of privacy. Indeed, at oral

argument the government argued that if Milligan had only kept

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walking on the driveway, he could have come very close to the

camp with no danger of violating any curtilage.

On scrutiny, the driveway cases cited from this circuit and

others do not stand for the proposition urged by the government,

that “there is no Fourth Amendment protection in driveways.” In

United States v. Roccio, 981 F.2d 587, 591 (1st Cir. 1992), we

upheld the seizure by IRS agents of a vehicle that was parked on

an unobstructed driveway and thus was easily visible from the

street. We noted our prior conclusion that "there is no

expectation of privacy in a driveway that is exposed to the

public," id., citing United States v. Hensel, 699 F.2d 18, 32-

33 (1st Cir. 1983), which held that a license plate number taken

from an automobile visible to occasional passersby was

admissible evidence. Here, by contrast, the significant portion

of the driveway was far from public view.

As for the relevance of a meter on a pole, signifying an

occasional visit by a meter reader, homeowners throughout the

country would be astonished to learn that they had abandoned all

curtilage protection by allowing meters to be affixed to the

sides of their houses. Dunn’s requirement that a resident make

efforts to avoid “observation by people passing by,” 480 U.S. at

301, surely does not require efforts to insure total insulation

at all times. Thus, neither the driveway line of cases nor the

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presence of the utility meter preempts our exploration of the

curtilage factors.

Proximity. The magistrate judge ruled that a distance of

eighty-two feet between the camp and the spot where Milligan

smelled the marijuana was not determinative. She did comment

that the presence of the pole within the clearing and Milligan’s

proximity to it, as well as the likelihood of limited intrusions

by unannounced visitors, weighed somewhat in favor of the

government. As the government has pointed out, there are cases

where distances under eighty-two feet have been held not to be

within the curtilage and other cases where greater distances

have been held to be within it.

We, too, find no decisive help in the 82-foot distance from

the camp. We do note, however, the absence of any indications

of a boundary closer to the camp. And we are mindful of Judge

Friendly’s observation in United States v. Arboleda, 633 F.2d

985, 992 (2d Cir. 1980) (quoting Commonwealth v. Thomas, 358

Mass. 771, 267 N.E.2d 489, 491 (1971)): "'In a modern urban

multifamily apartment house, the area within the "curtilage" is

necessarily much more limited than in the case of a rural

dwelling subject to one owner’s control.'"

Enclosure. The magistrate judge reasoned that there were

“no artificial enclosures that might assist the curtilage

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analysis,” and that although wooded areas might at some points

around the property delineate the outer limits of curtilage,

“the tree line is not so close to the camp at the head of the

driveway” as to mark that limit for one entering the clearing

via the driveway. This seems to us another way of commenting on

proximity. Artificial enclosures for most homes, as the Dunn

Court observed, "will be clearly marked" to define "the area

around the home to which the activity of home life extends," 480

U.S. at 302 (quoting Oliver v. United States, 466 U.S. 170, 182

n.12 (1984)). But in this case, the private interests of the

inhabitants extended throughout the clearing, with no reason for

internal demarcation. Both the Second Circuit in United States

v. Reilly, 76 F.3d 1271, 1278 (2d Cir. 1996),4 and the Sixth

Circuit in Daughenbaugh v. City of Tiffin, 150 F.3d 594, 599

(6th Cir. 1998), have embraced the language in Williams v.

Garrett, 722 F. Supp. 254, 260-61 (W.D. Va. 1989):

[R]eading the word “enclosure” in Dunn to require an
artificial barrier seems unduly narrow. The boxwood
hedge and the heavy woods created a natural enclosure

4 The panel in Reilly initially reviewed the district
court's curtilage determination for clear error. See 76 F.3d at
1279. The government sought a rehearing based on the newly
issued Ornelas decision, and it was in the course of
reconsideration that the panel "assumed, without deciding, that
Ornelas requires us to review the district court's finding of
curtilage de novo . . . ," 91 F.3d at 331. See note 2 supra.
The panel concluded that the result was the same under either
standard.

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 around the home and yard; requiring a person to expend
resources and sacrifice aesthetics by building a fence
in order to obtain protection from unreasonable
searches is not required by the constitution.

In short, as to this factor, we think the magistrate judge

placed too much emphasis on the need for artificial enclosures

in a fairly small clearing, already enclosed by forest, where

the home-related uses did not require such enclosures.

Use. The magistrate judge gave short shrift to both use of

the property and the steps taken to protect the area from

observation. The decision noted that “there was no objective

basis for Agent Milligan to conclude that the Defendants used

the location in which he stood for the intimate activities of

the home.” The Court in Dunn made the converse observation that

"[i]t is especially significant that the law enforcement

officials possessed objective data indicating that the barn was

not being used for intimate activities of the home." 480 U.S. at

302. On this point, Justice Scalia parted company with the

majority, saying that actual use, not law enforcement officials’

knowledge, was the significant fact. Id. at 305. The Reilly

court opined that this reference in Dunn did not alter the

court's statement that actual use was the relevant factor, but

rather was directed to situations in which officers’ perceptions

coincided with actual use. See 76 F.3d at 1278.

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 The government tries to take advantage of the Dunn reference

to objective data of use by pointing out that illegal activity

was suggested by the objective evidence possessed by Milligan of

power consumption, the fictitious existence of Ian Fabrications,

the construction of a large building with no windows, water, or

sewage, the absence of signs of commercial activity, and the

evasive or confrontational nature of dealings with occupants.

All of these indicia, however, related to use of the storage

building, not the clearing adjacent to the appellants’ living

quarters.

Whatever may be the proper reach of the reference to

evidence of illegal activity, we are not willing to expand it to

require that, to invoke curtilage protection, there must be

objective evidence of intimate uses possessed by officers. Such

would totally eviscerate the protection, making it depend on the

exigencies of night or day, rain or shine, and winter or summer.

It would turn the concept upside down, presuming the absence of

curtilage until and unless the contrary appears. The circuit

court opinions of which we are aware have not gone beyond

objective evidence of non-intimate use of the property. See,

e.g., Reilly, 76 F.3d at 1278-79; United States v. Depew, 8 F.3d

1424, 1427 (9th Cir. 1993), overruled on other grounds by

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Johnson, 256 F.3d at 911-914; United States v. Swepston, 987

F.2d 1510, 1515 (10th Cir. 1993).

On this factor we therefore disagree with the approach taken

by the magistrate judge. The evidence of personal, even

intimate use of the clearing, was ample and not restricted to

any specific area.

Steps Taken to Protect from Observation. The magistrate

judge addressed this factor summarily, observing that while

defendants obviously desired to conceal their illegal activity,

it was “unreasonable for them to expect that no visitors would

ever wander up the driveway or through the woods to stand within

the perimeter of the clearing or in the vicinity of the utility

pole.”

Our task is to look at “the steps taken by the resident to

protect the area from observation by people passing by.” Dunn,

480 U.S. at 301. The facts we have summarized concerning the

location of the property, the bend in the long driveway, the

surrounding woodland, and the efforts of the inhabitants to

discourage mail delivery and visits from neighbors and officials

all seem to have created a locus as free from observation by

passersby as one could conceive.

We think current case law supports our judgment that this

fourth Dunn factor weighs in favor of defendants. In United

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States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997), the Sixth

Circuit considered a back yard that was partly shielded from the

road by defendants’ house and backed up by a wooded field, and

held that these protections were sufficient to prevent

observation from the road or “undesired public viewing of the

backyard.” The court said:

It is also important to remember that defendants live
in a remote and sparsely populated rural area where
they would have had no particular reason to believe
that they needed to construct a high impenetrable
fence around the backyard in order to ensure their
privacy.

Id.; see also Depew, 8 F.3d at 1428.

While we have registered disagreement with the district

court on several of the Dunn factors, we rest our decision on

this issue of curtilage on the overall "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." 480 U.S. at

301. Our overview is of a 17-acre wooded tract in a remote

rural area, with a residence and clearing occupying less than

one half acre. This equates to a not very large island of

something under 21,780 square feet or, say, 30-by-70 yards, far

from a road, neighbors, or passersby. The claimed private uses

of the “island” are not unusual in such circumstances. A

rational basis for segregating part of the clearing from the

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remainder as curtilage is not apparent to us. We therefore hold

that Agent Milligan was within the curtilage of appellants'

residence when he smelled the odor of marijuana.

III. Good Faith

The district court, having found no violation of curtilage,

had no occasion to reach the question whether Milligan's conduct

met the standards of good faith set forth in Leon, 468 U.S. at

897, such that applying the exclusionary rule would serve no

deterrent purpose. We must reach this issue because of the

concession that paragraph 14 of the warrant application,

detailing Milligan’s warrantless entry on the property and his

detection of the odor of marijuana, added a critically necessary

basis for probable cause. In other words, it is not open to us

to consider harmless error. We further recognize that the

burden on the issue of good faith rests on the government.

United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001).

In Leon, the Court considered the costs and benefits of

applying the exclusionary rule to evidence seized under a

warrant subsequently held invalid. It reaffirmed continued

application of the rule in cases of substantial and deliberate

Fourth Amendment violations. But it questioned whether such

application would have any deterrent effect on officers who have

"acted in the objectively reasonable belief that their conduct

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did not violate the Fourth Amendment." Leon, 468 U.S. at 918.

Recognizing that determination of probable cause is the

magistrate’s responsibility, id. at 921, the Court reserved

suppression as "an appropriate remedy if the magistrate or judge

in issuing a warrant was misled by information in an affidavit

that the affiant knew was false or would have known was false

except for his reckless disregard of the truth," id. at 923.

Appellants seek to link Milligan to such conduct through the

statement in his affidavit that he smelled marijuana "[w]hile

standing on the dirt road away from the curtilage of the camp."

They contrast this with "the fact that Milligan purposely turned

off the road and walked 500 feet up a driveway and fifty feet

into the appellants’ yard" and ask how any statement could have

been more misleading. In short, they read the affidavit as

saying that Milligan was standing on the Old Bray Hill Road when

he was pointing the imager at the camp.

Such an interpretation requires the reader to believe that

Milligan, separated from the camp by several hundred feet of

dense forest, pointed his thermal detection device at the camp,

and, similarly, that it was from this road that he heard the

"hum" from high intensity lights and male voices from the camp.

It is transparent that Milligan’s reference to standing "on the

dirt road" was a reference to the driveway entering the

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clearing. Indeed, he testified at the hearing in identifying

aerial photos, "This is the Bray Hill Road, and then this would

be the dirt road or the driveway." On cross examination, he

again made it clear that he equated his concept of a dirt road

with the camp road or driveway. And in the affidavit itself, in

paragraph 4, he referred to the camp’s driveway as "an old camp

road."

The magistrate judge found that Milligan’s affidavit

description was "not entirely accurate based upon the testimony

presented at the hearing, as the officer was clearly in the

private driveway of the residence." This measured finding is

consistent with either inadvertence or sloppiness, but not with

an intentional misrepresentation, or one made with reckless

disregard of the truth. It is, if anything, an effort to

conform the factual testimony to the preferred way of

distinguishing the Old Bray Hill Road from the road leading off

it to the camp. The inconsistency strikes us as more a matter

of semantics than geography. We see no possibility that the

issuing magistrate judge was misled by this statement in the

affidavit.

It is true that Milligan’s characterization of his position

as being "away from the curtilage" states a legal conclusion,

but this, contrary to appellants’ assertion, did not "take[]

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away from the issuing court the ability to decide" the issue.

The magistrate judge had information that Milligan was close

enough to the camp to hear the hum of lights, to focus his

thermal imager, and to hear voices from a poorly sound-proofed

camp with, according to Cumming, "paper-thin walls."

Apart from their argument based on Milligan’s use of the

words "dirt road," appellants point to the inconsistent

statements Milligan made as to precisely where he was standing

when he smelled marijuana. These led the magistrate judge to

credit appellants’ view that he was eighty-two feet from the

house. But the fact that Milligan identified various locations,

testifying five months later about a 3 a.m. expedition in the

snow while operating a thermal imaging device, has little

bearing on the integrity of the warrant application.

When we look at our own precedents in applying the

exclusionary rule, post-Leon, we recognize the gulf separating

them from the affidavit in the case at bar. In United States v.

Vigeant, 176 F.3d 565, 573-74 (1st Cir. 1999), we detailed seven

material omissions. In United States v. Ricciardelli, 998 F.2d

8, 16 (1st Cir. 1993), we found the warrant to suffer from a

"glaring and easily correctable" facial defect, as well as a

failure to communicate the details of a relevant and problematic

sting operation. And in United States v. Fuccillo, 808 F.2d

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173, 178 (1st Cir. 1987), we held that officers were reckless in

preparing an affidavit for an overbroad warrant by failing to

provide available information that would enable stolen goods to

be distinguished from those legally on the premises.

Appellants' reliance on Reilly, 76 F.3d at 1280, overlooks

critical differences. In the first place, the court in Reilly

faulted the affidavit for omitting almost all information

concerning the area of the pre-warrant entry. Id. No

information was given as to "distances involved, the layout,

conditions, and other like particulars," which were necessary if

the issuing judge were to make a valid assessment. Id. Here,

as our summary of the affidavit indicates, there was an

abundance of detail. Whether or not probable cause existed

apart from the report of smell, at the very least the affidavit

was far from bare bones.

A second difference lies in the fact that the circumstances

of the pre-warrant search in Reilly "raise[d] serious doubts

about the officers' good faith at that earlier time," id. A

full account of that search, the Reilly court ruled, should have

been given the issuing judge so that he could determine if the

officers' conduct, which included walking across a well

maintained stretch of the defendants' property and peering into

the windows of a cottage, was in such bad faith as to preclude

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a warrant. Id. Here, the conduct of Milligan is faithfully set

forth, with no suggestion that material information has been

omitted.

Although we have held that Milligan's absence of knowledge

of the intimate uses to which the clearing had been put does not

bear on the curtilage issue, we see merit in Justice Scalia’s

comment in Dunn that "[t]he officers' perceptions might be

relevant to whether intrusion upon curtilage was nevertheless

reasonable . . . ." 480 U.S. at 305. While we have recognized

that the contours of curtilage do not vary with the seasons, the

camouflage of domestic pursuits created by the snow is relevant

to Milligan's perceptions and absence of bad faith.

In sum, we think this is a case of "a 'penumbral zone,'

within which an inadvertent mistake would not call for

exclusion," thus protecting against the temptation for "judges

to bend fourth amendment standards" to avoid releasing suspects.

Leon, 468 U.S. at 925 n.26 (citation omitted). Milligan's

affidavit reflects neither deliberate misstatement nor any other

bad faith, and we therefore hold that the remedy of exclusion in

this instance is inappropriate.

IV. Night-time/No-Knock Warrant

Milligan’s application closed with four proffered bases for

obtaining a night-time/no-knock warrant: (1) access via a long

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dirt road and driveway made it impossible to walk quickly to the

front door; (2)reports indicated that the occupants were armed,

and because they also were elusive, Milligan had been unable to

check their records for violence; (3) indoor marijuana

cultivation of significant scale often involves firearms; and

(4) the commander of the Maine State Police Tactical Team

advised a “tactical entry” at night and without notice.

The magistrate judge did not address this issue, assuming

that it was not being pursued. Appellants have vigorously

contested this and the government acknowledges that the status

of the issue is not clear. We shall address it.

Although there is a “presumption in favor of announcement”

of the presence of officers with a warrant, Wilson v. Arkansas,

514 U.S. 927, 935-36 (1995), it will yield to “reasonable

suspicion” that knocking and announcing would be dangerous or

futile, or would inhibit effective investigation of the crime

by, for example, resulting in destruction of all evidence,

Richards v. Wisconsin, 520 U.S. 385, 394 (1997). This burden is

not large and the version of the record favoring the trial

court’s ruling governs. Cf. United States v. Tibolt, 72 F.3d

965, 969 (lst Cir. 1995) (discussing when "exigent

circumstances" justify a warrantless entry).

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 The standard of deference is particularly pertinent. The

major basis for the no-knock warrant here is the report made to

the local public safety official by three Massachusetts hunters

concerning the three men with rifles exiting the storage

structure with rifles and ordering them off the land. Appellants

would have us view this as simply an uncorroborated anonymous

tip and would have us indulge the assumption that the armed

trio, like the Massachusetts men, were merely fellow sportsmen

with no propensity for violence. The issuing judge, however,

was entitled to view this as a report made to a local law

enforcement official by witnesses who made no effort to conceal

their identities, concerning an isolated structure already

suspected to be the focus of illegal drug activity. The judge

was further entitled to doubt that the three individuals were

out for sport and to view this incident as one involving

possible employees in an illegal enterprise, not only

possessing firearms, but determined to use them to back up their

order.

So viewed, this basis is more than mere possession of

weapons; it is a group of men with ready weapons threatening to

use them. We find apposite the recent case, United States v.

Gambrell, 178 F.3d 927, 929 (7th Cir. 1999), in which a no-knock

warrant was held to be validly issued where an informant had

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stated that the occupant “answered the door wearing a .25

caliber gun in her front pocket.” The presence of guns, not

just in the apartment, but strapped to and accessible to the

people inside, in the context of a drug operation, was held

sufficient justification for the warrant. Here, too, the known

information was enough to justify the issuing judge's exercise

of discretion in issuing the warrant.

V. Conclusion

We hold that although the critical piece of evidence for the

search warrant, the odor of marijuana, was obtained by a

violation of appellants’ curtilage, the agent’s conduct was

neither intentionally misleading nor reckless. We therefore do

not apply the exclusionary rule as a sanction. Nor do we find

the application insufficient to justify the night-time/no-knock

warrant.

Affirmed.

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