U.S.A. v. Diehl

• Decision Date: 07 November 2001
• Docket Number: Nos. 01-1623,s. 01-1623
• Parties: (1st Cir. 2002) UNITED STATES OF AMERICA, Appellee, v. ANDREW DIEHL AND WILLIAM CUMMING, Defendants, Appellants. & 01-1624 Heard
• Court: U.S. Court of Appeals — First Circuit

Page 32

276 F.3d 32 (1st Cir. 2002)

UNITED STATES OF AMERICA, Appellee, v. ANDREW DIEHL AND WILLIAM CUMMING, Defendants, Appellants.

Nos. 01-1623 & 01-1624

United States Court of Appeals For the First Circuit

Heard Nov. 7, 2001

Decided January 9, 2002

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. Gene Carter, U.S. District Judge

[Copyrighted Material Omitted] David M. Sanders, by Appointment of the Court, for appellant Cummings.

Walter Hanstein, by Appointment of the Court, for appellant Diehl.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Saris,^* District Judge.

COFFIN, Senior Circuit Judge.

These are consolidated appeals arising out of successful prosecutions of defendants-appellants Diehl and Cumming for conspiring to manufacture, manufacturing, and possessing with intent to distribute marijuana. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 846. Appellants entered conditional pleas of guilty after the district court denied motions to suppress evidence obtained in a search of their property in a remote and secluded area of western Maine.

At issue is the search warrant, which is challenged on two grounds. First, appellants claim that the warrant improperly included the averment of Agent Milligan of the Maine Drug Enforcement Agency ("MDEA") that he had detected the odor of growing marijuana as he approached appellants' camp house during a previous, surreptitious visit to the property. They assert that the agent was illegally within the curtilage of the residence when he encountered the smell. Second, appellants claim there was insufficient basis for issuing a "no-knock" night-time warrant.

The magistrate judge, after an evidentiary hearing, ruled that Milligan was not within the curtilage of appellants' home when he detected the telltale odor of growing marijuana and that there was adequate justification for the no-knock warrant. The district court affirmed based on the analysis in the magistrate judge's opinion. We conclude that Milligan was unlawfully within the curtilage at the critical time, but that the search warrant survives the challenge under the good-faith standard of United States v. Leon, 468 U.S. 897 (1984). We also hold that the affidavit underlying the search warrant gave sufficient basis for the issuance of a no-knock warrant. We therefore affirm the judgments.

I. Background

The evidence appellants seek to suppress -- drugs and various drug-manufacturing items -- was seized pursuant to a facially valid warrant permitting a search of their 17-acre parcel of land in Phillips, Maine. The primary focus of these appeals, however, is an earlier, warrantless entry onto the property by Agent Milligan and two associates. Throughout this case, the government has taken the position that Milligan's report that he smelled marijuana during that visit was necessary to establish the probable cause justifying issuance of the warrant. Whether or not we would agree with that conclusion, we consider ourselves bound by it. Thus, if Milligan obtained the olfactory evidence through conduct that violated the Fourth Amendment, the warrant would have been defective and the resulting search would have been unlawful. Appellants contend that Milligan violated the law because he was within the curtilage of their home without permission when he obtained the critical evidence.

To set the stage for our legal discussion, we describe below appellants' property, the evidence presented in the warrant application, including details of Milligan's pre-warrant visit, and the testimony given at the hearing on appellants' suppression motion.

The Property. Appellants' property was reached only by proceeding some 700 feet along a discontinued town road (the Old Bray Hill Road), then ascending a 500-foot dirt driveway, which was bordered closely by forest and contained a dogleg turn shutting off a view of the full length. "No Trespassing" signs were posted at the beginning and near the end of the driveway. The driveway terminated in a clearing of less than half an acre. In the clearing was a crude camp, occupied by appellant Diehl, his wife, and appellant Cumming, an outhouse, a pen for animals, and a line for drying laundry. At the time of the search in February 2000, the clearing was covered by snow except for a plowed parking area for vehicles. Beyond the camp, a path led to a 20-by-72-foot wood storage building, which housed appellants' marijuana production operation.

The Warrant Application. Before Agent Milligan made the warrantless entry onto appellants' property, he had assembled the following information, which he later included in his affidavit: Franklin County Deputy Sheriff Cayer had reported that a public safety official whom the sheriff considered reliable had relayed statements from three Massachusetts hunters that, during the preceding November, they were near a newly constructed, windowless barn or garage-type building on the property when three men emerged with rifles and ordered them off the land; in May 1999, a Florida company, Ian Fabrications, purchased the property in question and obtained a town permit to construct a 20-by-72-foot storage building, with no septic or water facilities; appellant Cumming identified himself as one of four men running the company, but refused to answer the town clerk's question about the nature of the business. The application further reported that when Deputy Cayer and another deputy recently drove to the property to investigate, Cumming ran to their vehicle before they had a chance to exit, and another man was seen nervously peeking out from a door; that Cayer had learned that appellant Diehl was the only named officer of the company; that the company had been dissolved by Florida in September 1999 for failure of documentation and had no papers on file with the Maine Secretary of State; and that the local postmaster indicated that the company had received no business-related mail.

The warrant application also recited that Milligan, suspecting that the new storage building in such a remote spot might be the site of an elaborate indoor marijuana cultivation operation, procured an administrative subpoena and received power consumption records from Central Maine Power Company showing that the camp, during the past eight months, had consumed 16,627 kilowatt hours of power, while the storage building in the last three months had consumed 12,731 kilowatt hours (an average monthly use more than twice that of the camp); and that, on February 23, 2000, at 2:45 a.m., using a thermal detection device while flying in a helicopter at about 1,000 feet, Milligan determined that heat was escaping from portions of the camp and "on all sides of the storage building," and that surface temperatures -- especially for the storage building -- were "significantly higher" than normally found in similar structures.

The application concluded with averments that cultivating marijuana under high intensity discharge lamps creates a large amount of heat, necessitating venting of excess heat and stale air, and with several statements, which we will discuss later, addressed to the need for a no-knock/night-time warrant.

Milligan also described the conduct giving rise to the curtilage issue. Paragraph 14 reports that at about 3 a.m. on February 24, 2000, he and two other officers went on foot to "the non-curtilage area of the property" to conduct a better thermal detection inspection of the camp and storage building. Milligan describes what happened as follows:

While standing on the dirt road away from the curtilage of the camp, I pointed a hand-held thermal detection device at the camp and began my survey. While doing so, I could hear a loud "hum" which is consistent with noise made from ballasts providing power to high intensity lights commonly used in indoor marijuana cultivation operations. I could also hear at least two males laughing and talking inside the camp. Moments later, I could smell a strong odor of what I recognized to be growing marijuana coming from the property in question. Since I could smell marijuana and realized that suspects were awake inside the camp, I decided to terminate the thermal inspection and withdraw from the property to ensure officer safety.

The search warrant was issued at 7:17 p.m. the next day, authorizing an unannounced, night-time search. The search yielded 360 growing marijuana plants, 483 "cuttings" in a rooting compound, scales, grow lights, seeds, and harvested marijuana.

The Hearing. The magistrate judge granted a hearing on appellants' motions to suppress. In testifying about the 3 a.m. approach on February 24, Milligan said that he and his two associates first attempted to walk through the woods directly to the storage building but the snow was too deep. They then followed what Milligan called the dirt road or driveway off Old Bray Hill Road to a utility pole at the edge of the clearing. He said that the driveway was plowed at least to the camp, but he did not go all the way. He was in the lead of his group and was manipulating the thermal imaging device. On direct examination, he said that he did not go past the pole. On cross examination he said that he remembered taking only two steps beyond the pole, then later, after reviewing a video, said he thought he was fifty, then later, thirty feet behind the pole when he was operating the imager.

The parties had visited the property in the summer following the search in an effort to pinpoint Milligan's location when he smelled marijuana. A comparison video was made and showed a telephone pole at the entrance to the driveway, a second one at the curve in the driveway, and a third telephone pole at the beginning of the clearing, eighty-nine feet from the camp. Cumming testified that Milligan must have been between the last pole and the...