U.S. v. Pace

• Decision Date: 24 February 1992
• Docket Number: No. 90-8543,90-8543
• Parties: UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Charles D. PACE, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 270

955 F.2d 270

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Charles D. PACE, Defendant-Appellant Cross-Appellee.

No. 90-8543.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 1992.

Stephen M. Orr, Orr, Davis & Beaver, Austin, Tex., for defendant-appellant cross-appellee.

Diane D. Kirstein, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee cross-appellant.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, KING and JOHNSON, Circuit Judges.

KING, Circuit Judge:

Our original opinion in this appeal, reported at 950 F.2d 961, is withdrawn in its entirety, and the following is substituted therefor:

In the central issue in this appeal, Charles D. Pace invites us to hold that which the Supreme Court has rejected in a factually indistinguishable case--that a barn physically separate from a home enjoys Fourth Amendment protection because it is within the curtilage of the home, and that the area surrounding a barn is protected as a "business curtilage." Because we do not believe that the Supreme Court would treat this case any differently than it did United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), we decline Pace's invitation. We find that the search of a barn which ultimately led to Pace's conviction for conspiracy to possess, and possession of marijuana with intent to distribute, was constitutional, and therefore affirm his conviction. We also find that, although the district court improperly calculated Pace's sentence, Pace received the statutory minimum sentence required for a violation of 21 U.S.C. § 841(a). Because the district judge evinced an intention to give Pace the statutory minimum, we need not remand for resentencing. We therefore affirm Pace's sentence.

I.

In October 1988, law enforcement officials in Travis County, Texas received information that marijuana was being grown in large quantities in a barn located on a 43-acre tract at the end of Lambert Road in Travis County. The barn was owned by Robert and Ouida Pace, the parents of appellant Charles Pace. In May 1989, a different informant contacted officials and told them that a large-scale marijuana operation was being conducted in the barn. Periodic surveillance was established on the barn and the property, and police observed appellant Pace, as well as John K. Treanor and John D. O'Brien, on the property.

On June 12, 1989, two officers entered the property and, looking through a hole in the barn, observed marijuana plants growing inside. On the basis of this information, a search warrant was issued for the barn. On June 15, agents of a joint task force composed of DEA agents and the Organized Crime Unit of the Austin Police Department executed the warrant. The officers seized 796 growing marijuana plants and a prescription bottle in Pace's name with marijuana seeds inside, and arrested Pace, O'Brien and Treanor. Searches of the defendants' persons yielded keys to the padlock securing the entrance gate to the property and a key to a safe deposit box at a bank in Austin. On the basis of the information obtained from the search of the barn and the arrests, warrants were issued for the residence of Pace, the residence O'Brien shared with Treanor and the safe deposit box. At the O'Brien and Treanor residence officers seized documents, photographs, ledgers, catalogs, accounts, receipts, magazines, a small amount of marijuana and $5,665 in cash; at the Pace residence they seized a triple beam balance scale, a small quantity of marijuana and various business and phone records; and from the safe deposit box they seized a key to the gate of the property where the barn was located.

All three defendants were indicted for conspiracy to possess with intent to distribute more than 100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846, and knowingly possessing more than 100 marijuana plants with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ¹ Each filed a motion to suppress the evidence seized from the barn on June 15, arguing that the officers' observations of June 12, which formed the basis for the affidavit in support of the search warrant, resulted from an unconstitutional search of the barn. They further argued that the warrants for the searches of their homes and the safe deposit box were tainted by the unconstitutional search of the barn and that the evidence seized at those locations constituted "fruit of the poisonous tree."

After holding a hearing on the suppression motion, the district court made detailed findings of fact concerning the barn, the surrounding property, and the June 12 search. At the time of the search, the property was being used in part for the purpose of farming and ranching. The entrance to the property is secured by a closed gate with a lock and chain and a "Beware of Dog" sign. The property is surrounded by a fence, and there are numerous interior fences. The fences are constructed of "hog wire" topped with several strands of barbed wire. The fences are approximately four feet high and are designed to block the passage of objects larger than four to six inches in diameter.

The property is improved with a small wood frame house and storage shed located within 100 feet of the front gate. Behind a garage, approximately 50-60 feet from the house, is the barn and stock pen. The barn is separated from the rest of the house by an interior fence. The barn, a commercial structure used for the business of farming and ranching, is constructed primarily of corrugated steel panels and is completely enclosed. It has no windows, and the only access is through two locked doors. Police helicopter surveillance of the property revealed that the barn was covered with translucent corrugated sheeting of the type used in greenhouses, but was not so transparent that the police could see through it. The interior of the barn was not visible from outside the property.

On June 12, two officers entered the property, one by squeezing through a gap between the main gate and a fence post and the other by climbing over the gate. After knocking on the door of the house and looking through a window, the officers determined that the house was vacant. They crossed at least two more gates and went to the back side of the barn, where they found a small opening. The officers could not see inside the barn from any distance, but had to press their faces close to the opening to see inside. Their observation of marijuana plants in the barn led them to apply for a search warrant, which they executed on June 15.

On the basis of these facts, the district court denied the suppression motion. The court first found that, because the barn was in an open field outside the curtilage of the home, the defendants had no reasonable expectation of privacy which would require the application of Fourth Amendment principles. The court determined that the barn was outside the curtilage by applying the four-part analysis of United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), a factually similar case in which DEA agents stood outside a barn and observed drug operations within. ² The court also rejected the argument that, even if the barn was not within the curtilage of the home, the area surrounding it was protected as the curtilage of a commercial structure. The court noted that the Supreme Court's assertion in Dunn that the officers were standing in an open field when they observed the drug operation inside the barn amounted to rejection of the notion of a business curtilage surrounding a barn. The court denied the motion to suppress evidence seized from the Lambert Road barn, and, because the evidence seized from the barn furnished probable cause to search the residences and the safe deposit box, denied the motion to suppress the fruits of those three searches.

Pace proceeded to trial and was convicted by a jury on both counts. The district judge sentenced Pace to concurrent terms of imprisonment of 51 months for the drug convictions. He added to this a consecutive prison term of nine months, pursuant to 18 U.S.C. § 3147, because following his arrest and pretrial release Pace was convicted of misdemeanor assault in state court. Pace also received a five year period of supervised release, a fine of $10,000, and a $100 special assessment. Pace appeals the denial of his suppression motion, and the government appeals the sentence.

II.

A. The Search of the Barn

Pace first argues that the warrantless search of the barn was unconstitutional because it took place within the curtilage of the home. We find this argument foreclosed by the Supreme Court's decision in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), a case whose facts so closely resemble the facts in this case that we recount them in some detail. In Dunn, DEA agents established surveillance, ³ including the taking of aerial photographs, of a large tract of rural property on which illegal drug operations were suspected. The property was completely encircled by a perimeter fence, and there were several interior fences constructed mainly of posts and multiple strands of barbed wire. A residence and a small greenhouse were encircled by one interior fence, and there were two barns located approximately 50 yards from this fence. The front of the larger of the two barns was encircled by a wooden fence, and locked waist-high gates barred entry into the barn. Netting material stretched from the ceiling to the top of the wooden gates of this barn. 480 U.S. at 297, 107 S.Ct. at 1137.

Two law enforcement officials made a warrantless entry by crossing the perimeter fence and one interior fence. Standing midway between the residence and the barn, one official smelled what he thought was a chemical involved in the manufacture of phenylacetone coming from the direction of the barns. The officers...