U.S. v. Broadhurst, 85-1206

• Citation: 805 F.2d 849
• Decision Date: 02 December 1986
• Docket Number: No. 85-1206,85-1206
• Parties: UNITED STATES of America, Plaintiff/Appellant, v. W.N. Daniel BROADHURST, Gregory Dorland, Joseph Arthur Broadhurst, Steven Strong Townsend, Jr., Deborah Dorland, and Beverly Elizabeth Broadhurst, Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 849

805 F.2d 849

55 USLW 2342

UNITED STATES of America, Plaintiff/Appellant, v. W.N. Daniel BROADHURST, Gregory Dorland, Joseph Arthur Broadhurst, Steven Strong Townsend, Jr., Deborah Dorland, and Beverly Elizabeth Broadhurst, Defendants/Appellees.

No. 85-1206.

United States Court of Appeals Ninth Circuit.

Argued Feb. 10, 1986.

Submitted June 11, 1986.

Decided Dec. 2, 1986.

Douglas G. Hendericks, Asst. U.S. Atty., Sacramento, Cal., for plaintiff/appellant.

Denise Anton, Serra, Perelson, Anton & Lichter, James Larson, San Francisco, Cal., for defendants/appellees.

Appeal from the United States District Court for the Eastern District of California.

Before BROWNING, TANG, and BEEZER, Circuit Judges.

TANG, Circuit Judge:

The United States appeals from the district court's order suppressing evidence of marijuana cultivation obtained as a result of aerial surveillance of a greenhouse, 612 F.Supp. 777. Based on observations made from public navigable airspace during three separate overflights, law enforcement officials obtained a state search warrant. The warrant was executed, resulting in the seizure of approximately five hundred fifty-three marijuana plants. Six defendants were charged with federal narcotics violations. The district court held that (1) all six defendants had standing to contest the search warrant, (2) the aerial surveillance was an illegal search, thus requiring suppression of evidence obtained as a result, and (3) the "good faith" exception to the exclusionary rule was inapplicable to the warrantless search. The government appeals from these findings. We vacated

submission of this case pending Supreme Court decisions in California v. Ciraolo, --- U.S. ----, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), and Dow Chemical Co. v. United States, --- U.S. ----, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). We have jurisdiction under 18 U.S.C. Sec. 3731. We reverse.

FACTS AND PROCEDURAL HISTORY

The evidence suppressed in this case was seized in a search of certain buildings at 17172 Lague Road in Yuba County, California ("the Lague Road property"). The Lague Road property is located in a rural, sparsely populated area, and contains eighty acres. On it sit a two-story residence, a garage, a green-sided shed ("the small greenhouse"), and a large greenhouse, the aerial surveillance of which is at issue in this case. The garage lies approximately fifteen feet from the residence; the small greenhouse, about seventy-five yards from the residence; and the large greenhouse, about one hundred twenty-five yards from the residence. The terrain in between the house and the large greenhouse is hilly and contains grass and oak trees. No road apparently leads from the house to the greenhouse and the greenhouse is not visible from the house. At the time of the search, the area of the Lague Road property near the greenhouse was heavily posted with "no trespassing" signs and fenced with barbed wire. From the nearest public road, the greenhouse appears as a large, opaque, green-sided barn.

In January of 1982, officer James Lovoi of the Sutter County Sheriff's Department and agent Del Polish of the Drug Enforcement Administration (DEA) met with a citizen informant who told them that, while deer hunting during the previous October or November, the informant had seen a large greenhouse full of six feet tall marijuana plants. The three traveled to the Lague Road property in Yuba County. There, the informant pointed out a large, green structure, partially hidden by trees, and apparently identified it as the greenhouse observed during the previous October or November. After making these observations, the officers and the informant left the area. In April 1982, a county deputy sheriff told Lovoi that an anonymous informant had told him that he had seen "marijuana gardens around some greenhouses on Lague Road" while deer hunting in 1981.

On May 26, 1982, Lovoi and California narcotics agents went on routine aerial patrol of the Yuba County foothills, including the Lague Road area. Each of the officers was experienced in the aerial identification of marijuana. They sighted the greenhouse on the Lague Road property while flying at an altitude of not less than one thousand feet. The officers could discern no green plants, but did see light emanating from the building. Lovoi and narcotics agents made a second routine aerial overflight on July 27, 1982, from an altitude of not less than one thousand feet. On this occasion, Lovoi reportedly observed green plants over six feet tall inside the greenhouse. During the overflight, the airplane was flown repeatedly in circles around the greenhouse, so as to permit viewing of the contents from various angles through the sides of the greenhouse. Apparently, nothing was visible through the roof of the greenhouse. Through the sides of the greenhouse, however, the agents discerned shadows, shapes of plants, and shades of green. The plants were of a color and height "consistent with marijuana." Following this overflight and before the third and final overflight, Lovoi ascertained that there were "no trespassing" signs and barbed wire near the greenhouse and that there was no record of a commercial nursery on the property. On August 4, 1982, Lovoi and narcotics agents conducted a third overflight of the Lague Road property. On this occasion, the agents observed that the greenhouse contained green plants over six feet tall.

Lovoi applied for and obtained a search warrant for the Lague Road property on August 12, 1982. Five days later, officers executed the warrant, and seized some 553 marijuana plants from the greenhouse and from a second structure on the property. On July 11, 1984, all six defendants were

indicted on one count of conspiracy to manufacture and possess with intent to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 846. Defendants Daniel Broadhurst, Gregory Dorland, Joseph Broadhurst, and Beverly Broadhurst were also indicted for knowingly and intentionally manufacturing marijuana in violation of 21 U.S.C. Sec. 841(a) and for knowingly and intentionally possessing with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. On June 21, 1985, in a published memorandum and order ¹, the district court granted defendants' motion to suppress the evidence obtained as a result of the overflights, on the ground that the aerial surveillance constituted a warrantless search in violation of the Fourth Amendment. 612 F.Supp. at 795. The government filed this appeal pursuant to 18 U.S.C. Sec. 3731.

DISCUSSION

I. Did All Defendants Have Standing to Challenge the Aerial Surveillance?

The district court's factual findings on the jurisdictional issue of standing must be accepted unless clearly erroneous. Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985). See United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The district court's ultimate legal conclusion regarding standing is subject to de novo review. Bruce, 759 F.2d at 758. The district court found that each of the six defendants had standing to challenge the aerial surveillance. 612 F.Supp. at 786.

The government challenges the standing of defendants Gregory Dorland, Deborah Dorland, Stephen Townsend and Daniel Broadhurst, none of whom lived on the property at the time of the execution of the search warrant. The government concedes that both Beverly and Joseph Broadhurst had standing because they were living on the property. As to Stephen Townsend, the government contends that, since Townsend purchased the Lague Road property and made mortgage payments under a false name, he lacks standing. A similar contention is made with regard to Deborah Dorland who, the government asserts, had no supervisory role or proprietary interest in the Lague Road property, and thus lacks standing. Finally, despite the participation in the purchase of the property and other activities related to the property on the part of Gregory Dorland and Daniel Broadhurst, the government submits that "this is still not a sufficient showing" to give them standing. These contentions lack merit.

Fourth Amendment rights are personal. As such, they may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978), quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). Rather, Fourth Amendment rights may be enforced only by one whose own Fourth Amendment protection was infringed by the search or seizure. Id.; Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973-74, 19 L.Ed.2d 1247 (1968). Analysis of whether a particular defendant enjoys that protection properly belongs not under the traditional heading of standing, however, but instead under substantive Fourth Amendment doctrine which examines whether a particular defendant may assert a legitimate expectation of privacy. Rakas, 439 U.S. at 140, 99 S.Ct. at 428-29.

It is clear that one may have a legally sufficient interest in a place other than her own house so as to extend Fourth Amendment protection from unreasonable searches and seizures in that place. Jones v. United States, 362 U.S. 257, 265-67, 80 S.Ct. 725, 733-34, 4 L.Ed.2d 697 (1960); Rakas, 439 U.S. at 142, 99 S.Ct. at 429-30. This Court and others have examined various factors in determining whether defendant may assert a legitimate expectation of privacy in a given space or item. ² Clearly Residence or presence on the premises at the time of the search are unnecessary to a determination of standing. See, e.g., Johns, 707 F.2d at 1099-1100 (defendants absent at time of search). Nor is the argument convincing that Deborah Dorland was a "mere employee" who had nothing more than the status of an invitee, notwithstanding the government's citation to authority from outside the Circuit. Arcane distinctions of property or tort law do...