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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