236 F.3d 1054 (9th Cir. 2001), 00-10065, United States v. Hammett

Docket Nº:00-10065
Citation:236 F.3d 1054
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES S. HAMMETT, Defendant-Appellant.
Case Date:January 10, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1054

236 F.3d 1054 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CHARLES S. HAMMETT, Defendant-Appellant.

No. 00-10065

United States Court of Appeals, Ninth Circuit

January 10, 2001

Argued and Submitted November 15, 2000

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Alexander Silvert, and Loretta A. Faymonville, Assistant Federal Public Defenders, Honolulu, Hawaii, for the defendant appellant.

Kenneth M. Sorenson, Assistant United States Attorney, Honolulu, Hawaii, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, District Judge, Presiding. D.C. No.CR-99-00189-SOM

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Before: Procter Hug, Jr., Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

TROTT, Circuit Judge:

This appeal concerns the district court's order denying defendant Charles Hammett's ("Hammett") motion to suppress evidence obtained by the police during an allegedly illegal search of his home. Hammett was arrested for cultivating marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A), after police seized 2430 marijuana plants and over three pounds of marijuana from Hammett's residence. Hammett was convicted pursuant to a conditional guilty plea agreement. Hammett contends that the search warrant was invalid because it was premised on: (1) a partially false affidavit; and (2) observations made by police officers while in the curtilage of his home in violation of his Fourth Amendment rights. We have jurisdiction pursuant to 28 U.S.C.S 1291, and AFFIRM the district court.

BACKGROUND

On April 7, 1999, Officers Correia and Kerr participated in a marijuana eradication mission on the Island of Hawaii. The officers acted as "spotters," searching for marijuana plants from a government-employed helicopter. Both officers had received extensive training and had amassed considerable experience in eradication missions.

Around 9:30 a.m., while flying at an altitude of approximately 500 feet, Officers Correia and Kerr noticed a distinct green color beneath the translucent roof of Hammett's residence that in their experience indicated the presence of marijuana plants. Officer Correia additionally noted several black circular shapes, which he suspected were black plastic growing pots. Despite these observations, the officers subsequently acknowledged under oath that from their vantage point in the air they were unable to confirm their suspicion that marijuana was being cultivated at the Hammett residence. Seeking to investigate their observations, the officers instructed the pilot to land the helicopter approximately 150 yards from Hammett's home on an adjoining parcel of land.

Hammett's property is located in a wooded, secluded area. There is an unimproved dirt road leading to the house, the entrance to which is marked by a sign prohibiting trespassing and two steel poles connected by a chain. The Hammett residence is constructed of overlapping sheets of corrugated metal, with a semitransparent plastic roof. The home has just one door, which is next to the home's only window.

In approaching the Hammett residence, however, the officers did not use the dirt road leading to the house, and consequently did not see the "no trespassing" sign posted at its entrance. Instead, the officers took a straight path to the home from where the helicopter had landed, crossing an unfenced and virtually unobstructed area of land. Officers Correia and Kerr approached Hammett's residence on foot for the purpose of contacting the occupants and possibly conducting an investigation regarding the officers' previous observations.

Once the officers reached the home, they knocked on the door and shouted "Police." When they received no answer, the officers looked through the window next to the door, but saw no inhabitants. Officer Kerr again yelled through the window, and again received no answer.

The officers then proceeded to circle the house, calling out "Police" and knocking on the walls as they went. The officers testified that they circled the home for the purposes of: (1) locating a back entrance; (2) contacting people behind the structure willing to speak with them; and (3) ensuring their safety. When the officers were approximately ten to fifteen feet away from having completely circled the home, Officer Kerr observed a small crack in the overlapping pieces of corrugated steel siding forming the walls of Hammett's residence. The crack was one-half to one inch wide. Through the crack, the officers observed

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at least three marijuana plants inside the residence.

After viewing the marijuana plants, the officers returned to the front door and noticed for the first time that a metal locking device on the inside of the door was in the closed position. The officers testified that this fact led them to believe someone was in the home.

Officer Correia then contacted the command post and Detective Bolos, who arrived at the Hammett residence roughly one hour later. Prior to Detective Bolos's...

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