U.S. v. Jenkins

• Citation: 124 F.3d 768
• Decision Date: 17 November 1997
• Docket Number: 96-5346,Nos. 96-5338,s. 96-5338
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Noel C. JENKINS (96-5338); Linda L. Jenkins (96-5346), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 768

124 F.3d 768

UNITED STATES of America, Plaintiff-Appellee, v. Noel C. JENKINS (96-5338); Linda L. Jenkins (96-5346),

Defendants-Appellants.

Nos. 96-5338, 96-5346.

United States Court of Appeals, Sixth Circuit.

Argued April 24, 1997.

Decided Sept. 3, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 17, 1997.

Terry M. Cushing, (briefed), Asst. U.S. Attorney, William F. Campbell, (argued), Asst. U.S. Attorney, Mark L. Miller, (briefed), Asst. U.S. Attorney, Office of the U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

Timothy J. Gillenwater, (argued and briefed), Temple Dickinson, (briefed), Gillenwater, Hampton & Dickinson, Glasgow, KY, for Defendants-Appellants.

Before: KEITH, BATCHELDER, and DAUGHTREY, Circuit Judges.

BATCHELDER, Circuit Judge.

In July 1992, members of the Governor's Marijuana Strike/Task Force of Kentucky seized approximately 862 marijuana plants and other incriminating evidence from the rural property of defendants Noel and Linda Jenkins. A jury subsequently convicted defendants of conspiring to manufacture marijuana, manufacturing marijuana, and possessing marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. The jury also forfeited Noel Jenkins's interest in the property. Defendants appeal their convictions and sentences. Noel Jenkins also appeals the forfeiture of his interest in the property. For the following reasons, we AFFIRM.

I. BACKGROUND

On July 23, 1992, Sargent Ron West, a twenty-eight year veteran of the Kentucky State Police, directed members of the Governor's Marijuana Strike/Task Force to perform an aerial inspection for marijuana in the southwest portion of Monroe County, Kentucky. West ordered the inspection because he had previously received information that defendants were cultivating marijuana in that locality. Consistent with this information, the helicopter crew observed marijuana growing in a wooded field located directly behind defendants' residence.

Defendants live on a multi-acre plot of farmland, some of which is heavily wooded. This land lies on both sides of a public road; defendants' house is on one side of the road, set well back from it. A wire fence separates defendants' house and yard from the remainder of the property on that side of the road. A gravel driveway leads from the road to a "car-port" located on one side of the house. Defendants' backyard, much of which is shielded from the road by the house, consists of a neatly trimmed lawn, numerous small trees and flower arrangements, and a shed. Behind the backyard is a wooded field, accessible from the backyard through a gate.

Based on the aerial observations, West decided to perform a ground search of defendants' property, although he had not obtained a search warrant. Upon arrival at the property, West and his "team," which consisted of two Kentucky National Guard oversized jeep-like vehicles ("humvees") manned by ten to fifteen Kentucky State Police troopers and National Guardsmen, observed Linda Jenkins standing in the backyard outside her home. West introduced himself, advised Linda that marijuana was growing on her property, and asked her how his team could best access the wooded field behind her house. Linda told West to drive down the road towards a barn and enter through a gate located in that general vicinity. Linda then left the premises.

Instead of following Linda Jenkins's directions, West and his team parked the humvees in defendants' driveway and members of the team began wandering around defendants' backyard, where they discovered the gate leading into the wooded field. Various team members and at least one humvee used this gate to access the wooded field. West searched defendants' backyard before entering the field. He noticed a can of green spray paint and containers of hog-rings, hog-ring pliers, and tin snips lying near the shed. He also observed an empty naphthalene mothball box in a bucket that was resting against the back of defendants' house.

Proceeding into the field, West discovered a flotation growing device located approximately 85 feet behind the wire fence that separated defendants' backyard from the wooded field and 238 feet from defendants' house. ¹ The device contained 570 "young" marijuana plants growing in styrofoam trays. The growing device was surrounded by a loosely-run strand of poultry wire and was covered by three wooden boards and green-painted utility wire. This cover, however, did not obstruct West's view into the device. Two connected hoses formed a water line leading from the flotation device to the wire fence enclosing defendants' backyard. West seized the marijuana, the wire cover, and the hoses.

Other team members discovered patches of marijuana growing in the woods approximately 100 feet behind defendants' backyard and just inside the woods across the road from defendants' house. Like the growing device, the patches were surrounded by poultry wire, some of which was hog-ringed together. A number of the patches contained naphthalene mothballs. The team seized the marijuana and the poultry wire. A further search of the woods behind defendants' house revealed an old refrigerator containing styrofoam cups full of plant food and a plastic camouflage tarpaulin. Only the tarpaulin was seized.

Realizing that "this was a pretty good sized case," West suspended the search until one of the team members could obtain a video-camera. The search did not resume for approximately two hours, at which point West again searched defendants' backyard. He noticed a hose coiled up next to a faucet attached to defendants' house, and uncoiled it to see if it would reach the back fence, where the hoses from the growing device led. It did. West recoiled the hose and placed it back were he found it. He then seized the can of green spray paint, the hog-rings and hog-ring pliers, and the tin snips that were located near the shed, along with the empty mothball box from the bucket next to defendants' house.

Eventually, Noel Jenkins, who apparently had been away from home during the search, returned home and went into his house. West knocked on the door, stepped inside the foyer, and called to him. When Noel answered, West stepped back outside and waited for Noel to come out of the house. Informing Noel that the team had found marijuana growing in the field behind his house, West advised Noel of his rights, but explained that he was not under arrest and did not handcuff him. West then asked Noel for permission to search the shed, with the understanding that any incriminating evidence that West found would be used against him. Noel consented to the search, stating that he had nothing to hide. West seized two boxes of naphthalene mothballs, a styrofoam tray, and a light from the shed. West informed Noel that he was free to go and Noel went to his barn and tended to his livestock.

On July 21, 1993, a federal grand jury returned a three-count indictment against defendants, charging them with conspiring to manufacture marijuana, manufacturing marijuana, and possessing marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. Defendants moved to suppress the evidence seized from their property. This motion was referred to a magistrate judge, who, after conducting a lengthy suppression hearing, recommended that the motion be denied. The magistrate judge reasoned that the evidence West seized from the shed was admissible because Noel Jenkins freely and voluntarily consented to a search of that area. The magistrate judge concluded that the remaining evidence was admissible because defendants' land, including the backyard, is an open field not entitled to Fourth Amendment protection. See Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The magistrate judge rejected defendants' contention that the backyard is part of their home's curtilage. The district court, over defendants' objections, adopted the magistrate judge's recommendation in full.

On August 8, 1995, the grand jury returned a superseding indictment, adding a fourth count seeking criminal forfeiture of defendants' property. Defendants filed additional defensive motions, including another motion to suppress, which the district court denied.

On October 31, 1995, a jury found defendants guilty of counts one through three and forfeited Noel Jenkins's interest in the property. The jury did not, however, forfeit Linda Jenkins's interest. The district court issued a preliminary order of forfeiture of Noel Jenkins's interest in the property and sentenced defendants to sixty months imprisonment on each of the three counts, to be served concurrently. Defendants timely appealed, raising a scatter-shot of issues attacking their convictions and sentences. Noel Jenkins also appeals the forfeiture of his interest in the property. Only one issue, however, merits further discussion--whether the district court erroneously admitted the items seized from defendants' backyard.

II. DISCUSSION

Defendants assert that the district court erred in admitting the items that the team seized from their backyard. Defendants argue that their backyard is part of the "curtilage" of their house, and that West and his team violated the Fourth Amendment when they physically invaded and seized items from that area. We agree.

When reviewing the denial of a motion to suppress evidence, we review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.1992). We must review the evidence " 'in the light most likely to support the district court's decision.' " Id. (quoting United States v. Gomez, 846 F.2d 557, 560 (9th Cir.1988)).

The Fourth Amendment provides for "people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... and [that] no Warrants shall issue, but upon probable cause...." U.S. CONST. amend. IV....