76 F.3d 1271 (2nd Cir. 1996), 1787, United States v. Reilly

Docket Nº:1787, Docket 95-1024.
Citation:76 F.3d 1271
Party Name:UNITED STATES of America, Appellant, v. Kevin C. REILLY, Defendant-Appellee.
Case Date:February 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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76 F.3d 1271 (2nd Cir. 1996)

UNITED STATES of America, Appellant,


Kevin C. REILLY, Defendant-Appellee.

No. 1787, Docket 95-1024.

United States Court of Appeals, Second Circuit

February 12, 1996

Argued July 21, 1995.

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Grant C. Jaquith, Assistant U.S. Attorney, Northern District of New York, Syracuse, NY, for Appellant.

James Kerrigan, Ithaca, NY, for Defendant-Appellee.

Before WINTER, LEVAL and CALABRESI, Circuit Judges.

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CALABRESI, Circuit Judge:

The good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), helped free federal courts from a difficult dilemma. Before Leon, federal courts examining the constitutionality of a search had to choose between: (1) holding the search unconstitutional and excluding the evidence found, thereby significantly increasing the chances that a guilty person would go free, regardless of the heinousness of the crime at issue, or (2) finding the search constitutional, thereby condoning similar searches and injuring potentially innocent objects of future, highly intrusive investigations. Leon changed all that dramatically in cases where a search warrant has been issued. Under Leon, evidence is admitted when the police act with objective good faith pursuant to a search warrant, even if the magistrate erred in issuing the warrant. Where good faith exists, courts may thus correct erring magistrates and provide them with guidance without incurring the social cost of letting the guilty profit from decisions that define the boundaries of the Fourth Amendment.

It bears emphasis, however, that the good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all the known facts. Good faith is not a blanket excuse for any police behavior. A warrant is not a general hunting license, nor is it a mantle of omnipotence, which cloaks its holders in the King's power to "do no wrong." And perhaps most important, it is not an excuse if the police are not frank with the magistrate in proceedings to obtain the warrant--proceedings that are typically ex parte. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978).

It is with these considerations in mind that we examine an area where the contours of search-and-seizure law are anything but clear, curtilage. In doing so, we write on a relatively clean slate. The Supreme Court issued a major opinion on the scope of curtilage, United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987), after Leon was decided. But this Circuit has not reviewed the protection afforded to curtilage since Dunn was handed down. Today, we are asked to decide whether the district court (Howard G. Munson, Senior District Judge ) erred in concluding 1) that the police violated the Fourth Amendment by invading the defendant's curtilage and 2) that the evidence the police found was not protected by the good faith exception. We will first address the question of the validity of the search given the scope of curtilage, and then examine whether the good faith exception protects the evidence found in the search.


Kevin Reilly's green thumb was allegedly both legendary and shady. Shunning corn, wheat, and other traditional crops, Reilly used his talents to grow marijuana on his 10.71 acre "farm" located on Woodard Road in Enfield, New York. His land has several characteristics important to our analysis. The property contains a main residence and a cottage. Between 1980 and 1982, Reilly built another house on the land, which he subsequently sold. Also during that time, Ruldolfo Nunez, who owns land bordering the east, west and north sides of Reilly's parcel, hired Reilly to build a wire fence along their common border. Nunez wanted the fence built to keep his cows from entering Reilly's land.

In the late 1980s, Reilly planted a lawn on his land. The lawn stretched from the main residence to the north and south boundaries of the farm, and by September of 1991, it entirely covered the property. Reilly planted trees throughout his land, including approximately 140 trees along the west hedgerow. He also built a pond and patio near the northeast corner of the land, and by these he erected a wooden gazebo. Close to the pond, patio, and gazebo is a cottage, which is about 375 feet from the main residence.

Reilly lived in the cottage from the time it was built (approximately 1984) until 1986. He then moved into the main residence, and rented the cottage until 1990. Thereafter it was vacant. While it was vacant, Reilly and

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his guests occasionally used the kitchen and the bathroom in the cottage; he at times also used the cottage for sexual liaisons. In addition, Reilly used it to grow marijuana.

The police first visited Reilly's land in September of 1990. Two officers from the Tomkins County Sheriff's Department approached the land from the north. They walked south along the western fence line until they reached Woodard Road, the southern boundary of the property. They claim to have noticed a strong marijuana odor, but state that they did not enter the property because a dog was present. They did not come back again for another year.

On September 6, 1991, the two officers parked their car about 300 yards east of the main residence. They walked northwest towards the eastern fence of the property. The officers followed the fence to the northeast corner of the property, and then turned south to enter the property. They continued walking south, passing a vegetable garden, and the pond, gazebo, and patio. They then chanced upon the cottage. The cottage had windows on all sides, some of which were open. Attached to the side of the cottage, they found an air conditioner from which, the officers claim, came a strong marijuana odor. The officers tried to look into the windows near the air conditioner, but the windows were closed and covered by drawn curtains. The officers then walked to the north side of the building and looked through a window, where they saw an empty room. They looked through other windows and saw a bathroom and kitchen.

The officers finally walked south until they reached a copse, a wooded area about 125 feet from the cottage. In the copse, they discovered a clearing with about 20 marijuana plants. They left the property by the same route they had used to enter it.

Later that day, they obtained a search warrant. Upon its execution, they found about 15 marijuana plants in the cottage and about 115 plants growing in the wooded area. They also found one plant, some harvested marijuana, and implements for weighing and bagging in Reilly's main residence.

In 1992, Reilly was convicted in New York State court, pursuant to his guilty plea, of criminal possession of marijuana in the first degree and unlicensed growing of marijuana. In making his plea, Reilly retained the right to challenge the conviction on the ground that the marijuana that had been found was the fruit of an illegal search. Subsequently, and on this basis, his conviction was overturned and the indictment was dismissed by the Appellate Division of the New York State Supreme Court. People v. Reilly, 195 A.D.2d 95, 101, 606 N.Y.S.2d 836, 840 (3d Dep't 1994). The court held that the search of Reilly's property was illegal under New York's Constitution as applied in People v. Scott, 79 N.Y.2d 474, 486-89, 583 N.Y.S.2d 920, 927-29, 593 N.E.2d 1328, 1335-37 (1992). Scott, decided after Reilly's guilty plea, had held that under the New York Constitution open fields were protected from unreasonable searches. Id. In this respect, the New York Constitution gives greater protection from searches than does the federal Constitution. See Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984). Thus, though the Appellate Division found that Reilly's cottage and wooded area were not protected curtilage, it held the search invalid under the New York open fields doctrine. 195 A.D.2d at 99-100, 606 N.Y.S.2d at 839-40.

The federal government subsequently filed an indictment against Reilly on June 30, 1994. Reilly was charged with manufacture of marijuana; criminal forfeiture of the property used to grow the marijuana was also sought. Reilly promptly moved to suppress the marijuana evidence, and the district court granted his motion. United States v. Reilly, 875 F.Supp. 108, 121 (N.D.N.Y.1994). Judge Munson first held that the scope of curtilage was a question of fact for the court to determine. He then rejected Reilly's claim that the cottage created its own curtilage. It had been unoccupied for nearly two years, and the defendant's occasional uses for the cottage did not measure up to "use as defendant's home." Id. at 117.

The court, nevertheless, found that the search invaded Reilly's curtilage. It noted that the cottage was 375 feet from the main

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residence, that the wooded area was 125 feet away, that hedgerows and a fence enclosed the property, that no interior fencing subdivided the property, and that the whole area was well maintained and pastoral. These factors led the court to find that "an observer could reasonably conclude that the area in question 'harbors the intimate activity associated with the sanctity of a man's home and the privacies of life.' " Id. at 119-20 (quoting Dunn, 480 U.S. at 301, 107 S.Ct. at 1139) (internal quotation marks omitted).

The government raises two principal arguments on appeal. First, it contends that the search did not invade Reilly's curtilage. Second, it argues that even if the search did occur on Reilly's curtilage, the search fell within the good faith exception...

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