U.S. v. Barajas-Avalos

• Decision Date: 10 March 2004
• Docket Number: No. 02-30301.,02-30301.
• Citation: 377 F.3d 1040
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Piedad BARAJAS-AVALOS, aka Piedad Barajas-Avaslos, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

377 F.3d 1040

UNITED STATES of America, Plaintiff-Appellee, v. Piedad BARAJAS-AVALOS, aka Piedad Barajas-Avaslos, Defendant-Appellant.

No. 02-30301.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2003.

Filed March 10, 2004.

Amended July 26, 2004.

COPYRIGHT MATERIAL OMITTED

James G. Rice, Portland, OR, for the defendant-appellant.

Fred N. Weinhouse and Michael J. Brown, Assistant United States Attorneys, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CR-00-00537-JAR.

Before ALARCÓN, FERGUSON, and RAWLINSON, Circuit Judges.

Opinion by Judge ALARCÓN; Partial Dissent by Judge FERGUSON.

ORDER

The court's opinion, filed March 10, 2004 , is amended as follows:

The final sentence of the second full paragraph on slip op. 2878 that reads, "In the instant matter, the officers did not enter the trailer or use a device to explore its interior," is deleted.

The two paragraphs on slip op. 2879-80 that read:

We agree with Mr. Barajas-Avalos that "there is no Fourth Amendment rule that provides for protection only for traditionally constructed houses." Appellant's Opening Brief at 15. The cases cited in support of this proposition, however, each involved a warrantless entry into the interior of a non-traditional structure. In United States v. Gooch, 6 F.3d 673 (9th Cir.1993), we held that a warrantless search of the interior of a tent on a public campground violated the Fourth Amendment. Id. at 677. In LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), we held that "LaDuke's privacy was violated by a flashlight search of his tent." Id. at 1332 n. 19. In United States v. Sandoval, 200 F.3d 659 (9th Cir.2000), we held that a search of the interior of a makeshift tent violated the appellant's reasonable expectation of privacy even though he was camped illegally on Bureau of Land Management property. Id. at 661.

Mr. Barajas-Avalos's reliance on cases holding that a warrantless entry into the interior of a "non-traditional" house violates the Fourth Amendment is misplaced. The record shows that the officers did not enter the travel trailer. An observation of the interior of a protected structure through a window, even when enhanced by a flashlight, does not constitute a search. United States v. Dunn, 480 U.S. 294, 298, 304, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). None of the cases cited by Mr. Barajas-Avalos concerning the searches of the interior of non-traditional structures hold that a guest in a residence or hotel, or an overnight camper, has a protected right to privacy in the open area surrounding his or her sleeping quarters. Mr. Barajas-Avalos has not demonstrated that the officers violated his Fourth Amendment rights by viewing the interior of the travel trailer through a window.

are deleted. The following paragraph shall be substituted in their place and inserted at slip op. 2879:

We agree with Mr. Barajas-Avalos that "there is no Fourth Amendment rule that provides for protection only for traditionally constructed houses." Appellant's Opening Brief at 15. In this matter, however, no prohibited search of the interior of the unoccupied travel trailer occurred. An observation of the interior of a protected structure through a window, even when enhanced by a flashlight, does not constitute a search when the observation is made from an open field or public place. United States v. Dunn, 480 U.S. 294, 298, 304, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Mr. Barajas-Avalos has not demonstrated that the officers violated his Fourth Amendment rights by viewing the interior of the travel trailer through a window while standing in an open field.

In the paragraph beginning on slip op. 2882 and ending on slip op. 2883 , the penultimate sentence reading, "The record is undisputed that the travel trailer did not contain dishes, food, cooking utensils, clothing, bedding, a radio or television, or a hookup to electricity, plumbing, or a source of water," is deleted. It is replaced with the following lines:

It is undisputed that officers were informed by the Portland General Electric Company that it did not provide electrical service to the Willow Tree Farm. Neighbors reported to the police prior to the search that no one lived on the property. The agents did not observe any lights or activity on the property after the daytime visitors left at nightfall.

The final sentence in the first full paragraph on slip op. 2883 stating, "We hold that the curtilage doctrine applies to the area immediately surrounding a home, not to an empty structure used occasionally as sleeping quarters," is deleted.

The second full paragraph on slip op. 2883 , which reads:

Because Mr. Barajas-Avalos has failed to demonstrate that the travel trailer on the Willow Tree Farm was used as a ho1e within the definition set forth in Hester, the natural clearing surrounding it was not protected from trespass by the Fourth Amendment. Therefore, we hold that the district court did not err in issuing the search warrants based, in part, on the observations of the officers after trespassing on the Willow Tree Farm.

is deleted and replaced with:

The totality of the circumstances related by the officers, based on their observations from the open field surrounding the travel trailer, were sufficient to support an inference that the travel trailer was not used as a home. Therefore, the natural clearing surrounding it was not protected from trespass by the Fourth Amendment. The district court did not err in issuing the search warrants based, in part, on the observations of the officers while on the open field surrounding the travel trailer, after trespassing on the Willow Tree Farm.

With these amendments, Judge Alarcon and Judge Rawlin son vote to deny the petition for rehearing.

Judge Ferguson votes to grant the petition for rehearing.

Judge Rawlinson has voted to deny the petition for rehearing en banc.

Judge Alarcon recommends that the petition for rehearing en banc be denied.

Judge Ferguson recommends that the petition for rehearing en banc be granted.

The full court has been advised of the petition for rehearing en banc. No judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

ORDER

The dissent, filed with the majority opinion on March 10, 2004 , is amended as follows:

The phrase "concurring in part and" on the first line of slip op. 2890 is deleted.

The portion of the first paragraph on slip op. 2890 reading "This case addresses the issue of whether the legitimacy of a government search may depend upon the results of that search. Because the Fourth Amendment prohibits such a rule," is deleted.

The twelve paragraphs, with their accompanying footnotes, on slip op. 2890-93 , that read:

The majority opinion correctly notes that individuals have no legitimate expectation of privacy in "open fields," with the exception of "the area immediately surrounding the home," i.e., the home's curtilage. Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

The majority also correctly concludes that the trailer on the Willow Tree Farm property was not a home. The federal agents who searched the trailer found no food provisions, no dishes or utensils, and no cooking appliances inside. There were no sheets, blankets, pillows, or sleeping bags on the beds. In short, there was nothing within the trailer to indicate that it was being used at the time for a home.

Given that the trailer was not a home, the majority says, "the natural clearing surrounding it was not protected." They claim that federal agents had committed no Fourth Amendment violation because the clearing, including the area immediately adjacent to the trailer, was "open field" and not "curtilage" to a home.

However, the federal agents investigating the Willow Tree Farm property were not able to obtain this information about the interior of the trailer until they stood immediately next to the trailer and peered through a window with a flashlight. Before looking through the window, the agents did not know what they would find.

The majority has now decreed in this Circuit that when the validity of a search is in question, it is permissible to place the cart before the horse. If the results of the flashlight search had shown that the trailer was a home, then the area immediately surrounding the structure would have qualified as curtilage for the purposes of Fourth Amendment analysis.¹ Consequently, peering through the window would have been a Fourth Amendment violation because the officers who did so would have been present in the curtilage of a home without a search warrant.

For us to ratify the flashlight search in this case because the results of the search proved that the structure in question was not a home is to say that the presence or absence of a Fourth Amendment violation depends on what government agents find after looking through the window of a structure and not before.

This is the problem presented by the government's action in this case, and it is a significant one. The majority's opinion eliminates the problem by holding that "non-traditional structures," such as those inhabited by "a guest in a residence or hotel, or an overnight camper," have no curtilage, and such inhabitants have no "protected right to privacy in the open area surrounding his or her sleeping quarters." In the majority's view, then, the Fourth Amendment only prohibits the police from peering through the windows of homes which are "traditional structures." On this view, government agents may look through the windows of campers, trailers, tents, and similar living spaces as much as they please without search warrants.

Under the majority's holding, officials wishing to inspect the interior of a home through a window without...