U.S. v. Davis

Decision Date30 June 2008
Docket NumberNo. 07-30219.,No. 07-30220.,No. 07-30226.,07-30219.,07-30220.,07-30226.
Citation530 F.3d 1069
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Orland DAVIS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Cynthia Jean Davis, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jeffrey Allen Davis, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Steven Jacobsen, Assistant Federal Public Defender, Portland, OR, for defendant-appellant Jeffrey Allen Davis.

Marc Friedman, Eugene, OR, for defendant-appellant Cynthia Jean Davis.

Robert M. Stone, Medford, OR, for defendant-appellant Richard Orland Davis.

Douglas W. Fong, Assistant United States Attorney, Medford, OR, Kelly A. Zusman, Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. Nos. CR-04-30061-ALA, CR-04-30061-02-AA, CR-04-30061-AA.

Before: RICHARD C. TALLMAN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

N.R. SMITH, Circuit Judge:

On October 22, 2004, law enforcement agents executed a search warrant and raided a large marijuana growing operation on private property in rural Oregon belonging to Jeffrey and Cynthia Davis. While officers were executing the search warrant on the Davis's property,1 Jeffrey Davis's brother, Richard Davis, drove onto the property through a locked gate and, when asked, told officers in a moment of omniscient honesty that he knew "everything" about the marijuana growing operation.

We hold that the observations, upon which law enforcement officers relied to obtain the warrant to search the Davis's property, were not made within the curtilage of the Davis's home. As a result, the warrant did not violate the Davis's Fourth Amendment rights. We must also determine whether the law enforcement officers violated Richard Davis's constitutional rights by questioning him, searching his person, searching his vehicle, and subsequently searching his property. With the exception of the search of a tin container found on Richard Davis's person, our answer is no. But because any error arising from its discovery was harmless, the motions to suppress all evidence seized were properly denied.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.
A.

In the fall of 2004, Pete Jenista, a narcotics detective in Josephine County, Oregon received a tip from a confidential informant about a marijuana growing operation at 2010 Stewart Road in Grants Pass, Oregon. Detective Jenista determined that the eighty-acre parcel of land at that address was owned by Jeffrey and Cynthia Davis and that they lived on the property with their daughter, Heather. The property is bordered by land owned by the Bureau of Land Management to the east and west. Cynthia Davis (herself) owned the property directly adjoining 2010 Stewart Road to the south. Richard Davis owned a forty-acre parcel of land approximately a half-mile away which was only accessible using the same road that accesses the 2010 Stewart Road property.

At the time Jeffrey and Cynthia Davis purchased the property at 2010 Stewart Road in the mid-1990s, it did not contain a homesite. The property is extremely rural, heavily wooded, and hilly. The closest home is almost a half-mile away. Jeffrey and Cynthia Davis developed the property, building a home and a large workshop. The workshop was set well apart from the house and partially surrounded by a chain-link fence. Inside the workshop, in addition to the marijuana growing operation, there was a freezer and refrigerator-freezer, a walk-in 700 bottle wine cellar, a shower, toilet, and a urinal. Jeffrey and Cynthia Davis stored Christmas materials and tools in the workshop and used a barbeque pit under the workshop's awning for barbeques.

At approximately 9:30 p.m. on October 12, 2004, Detective Jenista met two other detectives and drove to the area where Stewart Road turns from pavement to gravel. The detectives continued up the gravel road on foot approximately 300 feet, where they proceeded past an electric gate. The gate, which was donated by Jeffrey and Richard Davis, sits on property belonging to a nearby Girl Scouts camp. It is used to access the Davis's property, the Girl Scouts camp, and the BLM property. Multiple parties have access codes to the gate. When the detectives proceeded past the gate, they did not see two no trespassing signs, which were laying on the ground near the gate. Additionally, there was a posted sign near the gate which read:

Winema Girl Scout Council

This road is for access to private property and Camp

Ruth Hyde only!

No hunting or motorcycling!

It is closed to all others!

The detectives also passed a similar Girl Scouts' sign posted a short distance beyond the gate.

When the detectives got within approximately 500 feet of the Davis's residence, numerous outdoor lights illuminated the residence and the area in and around the large workshop. Detective Jenista heard the sound of a generator running from the direction of the large shop. He also smelled an odor, which he identified from experience as the odor of green-growing marijuana. Another detective also smelled the marijuana odor.

The detectives then left the road and walked through the woods along an old unused skid road toward the Davis's workshop. A dirt barrier had been erected to prevent vehicles from driving on the skid road. The detectives followed the skid road to the southernmost portion of a pond on the Davis's property near the workshop. To reach the workshop without being seen, the detectives circled the pond to the south and east, walking through a very heavily wooded gully. When they came out of the gully, the detectives were at the bottom of a short, steep embankment below the workshop. At that location, the detectives were able to observe the chainlink fence around the workshop. Both the workshop and the area around the workshop were extremely well-lit, and the detectives were able to observe commercial equipment inside the workshop. They did not observe anything to indicate domestic activity.

The detectives next walked up the embankment to the edge of the fence, where they observed steam coming off the top of the building and heard the sound of the generator more clearly. The detectives walked along the outside of the fence to the northeast. As they approached the area adjacent to the workshop itself, the brush and trees became extremely heavy, and the embankment became very steep. Just inside the heaviest brush, the detectives saw a light-colored pipe sticking out of the embankment, facing southeast, which was approximately a foot or more in diameter. The pipe protruded from the steeply angled embankment, approximately five to six feet outside of the chain-link fence. Detective Jenista placed his hand in front of the pipe and felt warm, humid air being pushed out. He also placed his head near the entrance of the pipe, smelled the odor of green-growing marijuana, and heard an exhaust fan somewhere down the length of the pipe. The detectives then left the area near the workshop and returned to the gravel roadway, again smelling marijuana at the same location where it originally caught their attention.

On October 21, 2004, the detectives obtained a search warrant based on Detective Jenista's affidavit describing his observations on the Davis's property. On October 22, 2004, twelve to fifteen officers and agents from various law enforcement agencies executed the search warrant. The officers discovered approximately 3,200 green-growing marijuana plants, approximately 60 pounds of dry, processed marijuana which had been prepared for sale, approximately $50,000 in a safe, and over sixty firearms.

B.

While officers were executing the search warrant, Richard Davis drove onto the property. Richard Davis exited his vehicle and asked two approaching deputies what was going on. The deputies informed him that they were executing a search warrant. Richard Davis asked more questions, but the deputies informed him that he needed to speak to one of the detectives, and that he needed to be read the search warrant. While Richard Davis waited to be read the search warrant, the deputies continued conversing with him. Reserve Deputy Andrew Aguinaga asked Richard Davis why he was there. He responded that he was on the property to see his brother. Deputy Aguinaga obtained Richard Davis's name, date of birth, and asked him "if he could grab his driver's license, and while he was near his vehicle if he could possibly move it out of the way so that [the officers'] vehicles could enter the driveway." At some point during the encounter, Richard Davis asked if he could leave. Deputy Aguinaga informed Richard Davis that he could not, presumably because he had not yet been read the warrant. After Richard Davis moved his vehicle and retrieved his identification, Deputy Aguinaga gave Richard Davis's driver's license to Agent Ronald Wright of the Drug Enforcement Administration. Deputy Aguinaga's entire contact with Richard Davis lasted less than ten minutes.

Meanwhile, another deputy summoned Sheriff's Sergeant Ken Selig to speak with Richard Davis. When he arrived to the driveway area, Sergeant Selig, who supervised the Josephine County Sheriff's Office Interagency Narcotics unit, read the search warrant to Richard Davis. Sergeant Selig then observed while reserve deputies searched Richard Davis. The deputies found hashish oil in a tin on Richard Davis's person. Sergeant Selig then introduced Richard Davis to Agent Wright and departed. Sergeant Selig's entire contact with Richard Davis lasted approximately ten to fifteen minutes.

While Richard Davis was still standing in the driveway, Agent Wright asked him questions regarding his living situation. According to Richard Davis, the conversation was "casual" and "low-key."...

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