IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-3882
______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
BRIAN McKEEVER,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
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October 15, 1993
Before KING and JOLLY, Circuit Judges, and PARKER1, District Judge.
PER CURIAM:
On July 23, 1992, Special Agent Carl W. Pike (Pike) of the Drug
Enforcement Administration (DEA) applied for two warrants to search
Appellee, Brian McKeever's rural property, and the property next to
his that was owned by his parents. The Magistrate issued a search
warrant for each property. The warrants were executed on July 27,
1993, resulting in the seizure of miscellaneous papers, marijuana,
seeds, grow lights, fertilizer, other marijuana cultivation
equipment and twenty-eight (28) marijuana plants.
McKeever was indicted for knowingly and intentionally
manufacturing marijuana. Prior to trial, McKeever filed a motion
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Chief Judge of the Eastern District of Texas, sitting by
designation.
to suppress evidence seized during the execution of two search
warrants. The district court, after hearing, granted the motion,
and continued the trial, pending the outcome of the Government's
appeal.
McKeever's Motion to Suppress alleged that there was
insufficient probable cause for the magistrate to issue the two
warrants because the affidavit underlying the search warrants did
not supply material dates or contain current information, did not
corroborate the information supplied by or establish the veracity
and reliability of the confidential informant (CI), and contained
information obtained through a prior illegal search. In response,
the government argued that the affidavits clearly established
probable cause for issuance of the warrants, but that, even if the
warrants were defective, the facts in the affidavits were
sufficient for law enforcement officers to rely objectively in good
faith on the warrants, which would render the evidence admissible
at trial. The district court concluded that "the 'good faith
exception' of [United States v.] Leon, 468 U.S. 897 (1984) and its
progeny is not applicable because the 'warrant was based on an
affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.'"
Appellant urges two related grounds for reversal. First that the
district court erred in finding that the affidavit in support of
the search warrant did not set forth probable cause, and second
that Agent Pike acted in objectively reasonable good faith belief
that the warrant was valid. Principles of judicial restraint and
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precedent dictate that, in most cases, we should not reach the
probable cause issue if a decision on the admissibility of the
evidence under the good-faith exception of Leon will resolve the
matter. United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988).
Because we find that the affidavit underlying the warrants was
sufficient to support the magistrate's finding of probable cause,
we make no distinction in our analysis between the validity of the
warrant and the agent's good faith execution of the warrant. The
district court's order suppressing the evidence seized, and
McKeever's resulting inculpatory statement is, therefore, reversed.
STANDARD OF REVIEW
On appeal, this Court will "'construe the sufficiency of the
affidavit independently of the district court' and [is] not limited
by the 'clearly erroneous' standard of review." United States v.
Jackson, 818 F.2d 345, 348 (5th Cir. 1987) (quoting United States
v. Freeman, 685 F.2d 942, 948 (5th Cir. 1982)). Like the district
court, however, this Court owes "'deference to the magistrate's
determination of probable cause and...must construe the affidavit
in a common-sense manner.'" Jackson, 818 F.2d at 348 (quoting
United States v. McKinney, 758 F.2d 1036, 1042 (5th Cir. 1985)).
THE MERITS
The government argues that the district court erred in finding
that the affidavit in support of the search warrants did not set
forth probable cause. The applications for the two search warrants
were supported by identical affidavits. Our task involves a two
step analysis. First, are any pieces of information set out in the
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affidavit subject to exclusion because of hearsay, lack of
corroboration, prior illegal search, or other challenge? Second,
does the information which was properly before the magistrate
amount to probable cause? The probable cause determination is
simply a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in
a particular place. United States v. Peden, 891 F.2d 514, 518 (5th
Cir. 1989); Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317,
76 L.Ed.2d 527 (1983)
Pike begins the affidavit with a recitation of Pike's
experience and training in the detection of clandestine marijuana
cultivation facilities. He continues with a detailed profile of
the typical marijuana production operation. McKeever did not
challenge the inclusion of these first two parts of the affidavit.
Next Pike sets out the information gathered in the
investigation of McKeever. On October 4, 1989, McKeever received
a shipment of merchandise from Dansco, an outfit engaged in the
sale of equipment for use in hydroponic gardening, and which
advertised in High Times, a magazine that promotes the cultivation
and use of marijuana. On October 1, 1990, McKeever purchased the
real estate adjoining his parents' property. The affidavit states
that McKeever uses (present tense verb, but no date) his parents'
mailing address. Again, there is no challenge to the inclusion of
these items.
CONFIDENTIAL INFORMANT STATEMENTS
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The affidavit next recites a statement by a confidential
informant of the Louisiana State Police (CI), that McKeever
purchased the property and built a structure in which he intended
to cultivate marijuana. The CI further stated that he has
purchased marijuana from McKeever on several occasions and that
McKeever's parents have full knowledge of McKeever's marijuana
trafficking. McKeever challenged the inclusion of the CI's
statements in the affidavit based on lack of corroboration and lack
of dates. The fact that the CI's statements were against his own
penal interest amounts to substantial corroboration. United States
v. Harris, 403 U.S. 573, 91 S.Ct. 2075 (1971). However, the agent
also corroborated the purchase of the property and the building of
the structure. The affidavit does not date the purchase of the
marijuana claimed by the CI, and the magistrate would not know if
the alleged sale was too remote in time to consider for purposes of
determining probable cause. However, the date of the purchase of
the property was in the affidavit and the magistrate could
reasonably conclude that the construction of the A-frame building
commenced after October 1, 1990.
ON SITE SURVEILLANCE
The final segment of the affidavit concerns information
gathered in an on site surveillance of McKeever's property. The
affidavit does not contain the date on which the on site
surveillance occurred, but because McKeever's A-frame building was
referenced in the surveillance report, the magistrate could again
only conclude that the date of the surveillance was subsequent to
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the purchase of the property and the construction of that building.
a. Staleness
The information given to a magistrate in an application for a
search warrant must be timely and probable cause must be found to
exist at the time the warrant issues. The proof must be of facts
closely related in time to the issuance of the warrant in order to
justify a finding of probable cause at that time. United States v.
Hyde, 574 F.2d 856, 864 (5th Cir. 1978). However, "if an affidavit
recites activity indicating protracted or continuous conduct, time
is of less significance." Id. at 865.
This Court is not convinced that the lack of specific dates
deprived the magistrate of essential information in determining
probable cause. The affidavit alleged a scheme that included the
purchase of land, the construction of a building, and the setup of
a hydroponic marijuana growing facility with equipment purchased
from a distributor specializing in such equipment. The entire
scheme was limited to a time frame of approximately twenty-one (21)
months between the purchase of the property and the application for
the search warrant. In addition to the common sense conclusion
that the construction of the A-frame structure consumed some
portion of the 21 month period, the affidavit sets out the long
term nature of marijuana cultivation: "Marijuana plants grown
indoors take ten to twelve weeks to reach full maturity....It is a
common practice in indoor marijuana growing to stagger the planting
process in order to have a constant, year round harvest of finished
product." "[I]f the information of the affidavit clearly shows a
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longstanding, ongoing pattern of criminal activity, even if fairly
long periods of time have lapsed between the information and the
issuance of the warrant, the information need not be regarded as
stale." United States v. Craig, 861 F.2d 818, 822 (5th Cir. 1988)
(quoting United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.
1984), cert. denied, 469 U.S. 1073 (1984). Also, the nature of
the evidence sought is relevant. Courts demand less current
information if the evidence sought is of the sort that can be
reasonably be expected to be kept for long periods of time in the
place to be searched. Id. at 832. We find that, given the
specific facts of this case, the magistrate was not obligated to
exclude the information gathered in the on site surveillance or the
informant's statements concerning the purchase of property,
construction of the building, and the older McKeever's knowledge on
the basis of staleness. The CI's statements that he bought
marijuana from McKeever several times may also be considered as
part of the larger picture of McKeever's ongoing involvement with
illicit marijuana trade. The magistrate must, of course, be
cognizant of the limited weight that the allegation was entitled to
because the affidavit failed to include the date that the sales
allegedly took place.
b. Prior Illegal Search
McKeever argues that the surveillance information recited in
the affidavit was obtained as a result of an illegal search and
thus cannot be used to support the issuance of the search warrants.
Agents crossed private property belonging to McKeever's parents by
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going down the common drive between the two properties. Agents
then entered McKeever's private property in order to observe the
marijuana plants concealed in the brush.
The Fourth Amendment does not provide blanket protection
against searches and seizures on private property. Rather, the
Fourth Amendment protects those areas in which citizens have a
reasonable expectation of privacy. Katz v. United States, 399 U.S.
347, 88 S.Ct. 507 (1967). McKeever, in asserting that the agents
violated his reasonable expectation of privacy in the marijuana
plot, attempts to establish the reasonableness of that expectation
under Fourth Amendment jurisprudence. McKeever argued that the A-
frame structure was his home and the marijuana plants were within
the curtilage of that home. McKeever urges us to assume that the
district court's opinion implicitly found that the A-frame
structure was McKeever's home and the underbrush behind the
structure was a place where society was prepared to recognize a
reasonable expectation of privacy, and to affirm this implicit
holding. We decline, as we find no basis for this assumption in
the lower court's opinion. The lower court's order referred to
"Mr. and Mrs. McKeever's home" and to the "A-frame structure."
The Court made no finding that the A-frame structure was McKeever's
home, nor is there any reference to the structure as a home, nor to
the area where the plants were concealed as curtilage. The
district court made no finding that the surveillance amounted to an
illegal search, the results of which must therefore be deleted from
the magistrate's consideration in determining probable cause.
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However, in order to decide whether to affirm or reverse the
court's decision that the warrants were based on an affidavit so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable, we must determine if the
information from the surveillance can be legally considered in the
equation.
Assuming, without so finding, that McKeever could establish that
the A-frame is his home, we turn to the four fact specific factors
set out in United States v. Pace, 955 F.2d 270, 273 n.2 (5th Cir.
1992) for determining whether a search was within the protected
curtilage of a home:
(1) the proximity of the area claimed to be curtilage to
the home; (2) whether the area is included within an
enclosure surrounding the home; (3) the nature of the
uses to which the area is put; and (4) the steps taken by
the resident to protect the area from observation by
people passing by.
After examining the photographs admitted into evidence, as well
as the testimony, we conclude that the marijuana plants were not in
the curtilage of the A-frame.
Although it seems that it would be easy to establish exactly
how far the marijuana plants were from the A-frame, the evidence
before the court was not clear. McKeever testified that the
buckets were spread out in some brush that began approximately 35
to 50 feet away from the structure, but was not clear about how far
the buckets were from the structure. Agent Pike testified that the
buckets were approximately 50 yards away from the house. Based on
the pictures admitted into evidence at the hearing, it appears that
the brush did begin about 35 to 50 feet from the back of the A-
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frame, but it is not possible to determine how far back into the
brush the pots were located.
Second, evidence established that Mckeever's ten acres were
fenced on three sides, and no fence or other enclosure had been
built in the immediate area surrounding the A-frame, or between the
A-frame and the marijuana pots. No gate blocked the common drive
into the area, and no fence blocked entrance onto McKeever's
property from the common drive. In fact the agents did not cross
any fences between the public road and the marijuana pots.
Third, McKeever did not use the area where the pots were hidden
for anything except hiding marijuana pots. It was not part of a
yard, or garden, or storage area, or walkway among out buildings,
nor did it serve any other purpose associated with the normal use
of a private residence.
Fourth, McKeever attempted to conceal the area by not cutting
down the brush, or mowing the area in question, and by the
placement of the building and marijuana plot out of site of the
public road. However, there was no privacy fence, or other
enclosure erected in an attempt to establish a privacy interest in
the area in question.
The cleared area around the A-frame could be claimed as
curtilage, but to expand the curtilage some undefined distance into
the underbrush would be to ignore the concept of curtilage, and
simply extend Fourth Amendment protection to the boundary lines of
privately owned property. The open fields doctrine teaches that
the Fourth Amendment provides no protection for items on private
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property outside of a structure or the curtilage of a home, or
other place where society is prepared to recognize a reasonable
expectation of privacy. The fact that the officer conducting the
surveillance violated trespass laws has no relevance to the Fourth
Amendment inquiry. Oliver v. United States, 466 U.S. 170, 183, 104
S.Ct. 1735 1743-44, 80 L.Ed.2d 214 (1984). We find that McKeever
has not established an expectation of privacy that society is
prepared to consider reasonable in the area where the marijuana
plants were hidden. Therefore, there is no basis on which to
exclude the information gathered during the on site surveillance
from consideration in determining probable cause to issue the
warrants.
CONCLUSION
Given all the facts and circumstances set out in the
affidavits, and not excludable on legal grounds, we find that the
magistrate's determination that there was probable cause to issue
the search warrants was correct. Therefore, we reverse the
district court's decision to suppress the evidence gained as a
result of the execution of the warrants, and remand for further
proceedings.
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