U.S. v. Roberts

• Citation: 747 F.2d 537
• Decision Date: 14 November 1984
• Docket Number: No. 83-3123,83-3123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James John ROBERTS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 537

747 F.2d 537

UNITED STATES of America, Plaintiff-Appellee, v. James John ROBERTS, Defendant-Appellant.

No. 83-3123.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 6, 1984.

Decided Nov. 14, 1984.

William H. Redkey, Jr., Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Howard Ratner, Seattle, Wash., for defendant-appellant.

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

Before WRIGHT, PREGERSON and CANBY, Circuit Judges.

PREGERSON, Circuit Judge:

INTRODUCTION

Defendant James Roberts appeals his conviction for conspiring to manufacture and possess marijuana with intent to distribute

                in violation of 21 U.S.C. Secs. 812, 846 (1982) (Count I), growing marijuana in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(B) (1982) and 18 U.S.C. Sec. 2 (1982) (Count II), and possessing marijuana with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(B) and 18 U.S.C. Sec. 2 (Count III).  At a bench trial, the parties stipulated that the evidence would consist of the transcript of an earlier suppression hearing and the testimony of Drug Enforcement Administration (DEA) Agent Yarborough had he been called to testify.  The district court found Roberts guilty on all three counts. 1   On Count I, the court sentenced him to one year imprisonment with credit for time served.  On Counts II and III, the court suspended imposition of the sentence and placed Roberts on probation for five years on each count, the five-year probationary periods to run concurrent with each other and consecutive to the sentence imposed in Count I.  We affirm
                

FACTS

On December 31, 1982, DEA Agent Ben Yarborough executed a warrant on Roberts's residence, 4121 196th Ave. N.E., Redmond, Washington, ² and found approximately 400 marijuana plants, 50 pounds of harvested marijuana, electrical equipment, halogen lights, fans, timing switches, and watering systems. Yarborough also found letters and documents addressed to Roberts and a ledger recording debts owed for marijuana purchases. Arguing that the warrant was not supported by probable cause, Roberts seeks exclusion of this evidence as the fruit of an illegal search.

United States Magistrate Sweigert issued a warrant to search Roberts's house and garage about an hour before the search was conducted. The warrant was based on an affidavit by DEA Agent Moriarty that contained information from three basic sources: (1) a tip from Randolph Fries, arrested by the DEA on drug charges on December 22, 1982; (2) a tip from an anonymous citizen caller to the Washington State Patrol on the morning of December 31, 1982; and (3) DEA Agent Yarborough's and Washington State Trooper Jeanne Foster's observations of the exterior of Roberts's residence and the behavior of an unidentified male occupant on the afternoon of December 31, 1982.

(1) Fries's Tip. After his arrest, Fries told DEA agents that he wanted to cooperate and could give them information about a large marijuana growing operation. He said that he had broken into the structure where the marijuana was growing and had personal knowledge of the operation. When asked for more details, Fries told the agents that a tenant with the initials "R.D." or "R.B." ran the operation at a house Fries's brother owned. ³ Fries refused to provide additional details until he talked with an attorney and determined what benefit he could derive from his cooperation.

(2) Anonymous Citizen Informant's Tip. On the morning of December 31, an anonymous male called the Washington State Patrol and stated that a house in the Lake Sammamish area owned by Randy Fries's brother, Martin, had been used to grow marijuana for the past year to year and a half. Stating that he had read about Randy Fries's arrest in the newspaper, the anonymous caller suggested that Randy was involved in the operation. The caller also said that the police should move fast because the people in charge of the operation might be moving everything out of the house.

The caller described the residence as a dark brown house, the fourth one on the right hand side of 196th Ave. He added that the garage windows were sealed and that there was no frost on the garage's (3) Yarborough and Foster's Inspection of Roberts's Residence. At 12:15 in the afternoon on December 31, Agent Yarborough and Trooper Foster drove up East Lake Sammamish Drive until they reached 196th Ave., a private dirt gravel road with signs stating "Private Road Keep Out" and "J B Ranch Fries and Randy Fries" posted at the intersection. Additional signs stating "No Hunting," "No Trespassing" and "Private Property Keep Out" were posted along 196th Ave. before it reached Roberts's residence. Knowing that the roadway was private, the agents nonetheless drove one mile up it, until they came to a house matching the anonymous informant's description. They immediately saw frost on the roof of the house but none on the roof of the garage. They also noticed that the garage windows were completely covered.

roof even though the house's roof was frosted over.

The agents drove across the lawn to within 10 feet of the house. There was no driveway to the residence but the lawn's condition indicated that cars had previously driven across it. Trooper Foster left her car, went to the front door of the house, and asked for directions. A male occupant answered from behind a closed door and told Foster that she was not on 196th Ave. As Foster walked back to her car, she and Yarborough noticed the occupant watching her from behind a partially drawn curtain. They departed, drove to the top of 196th Ave., and circled back. As they passed Roberts's residence, they saw the occupant still peering through the drapes.

Agent Moriarty's affidavit included the above information and Moriarty's opinion that, based on past law enforcement experience, the frost-free condition of Roberts's garage roof indicated that a marijuana growing operation was being conducted in the garage because the heat generated by the halogen lights would cause the garage's roof to be free from frost when the house's roof was frosted over.

ISSUES

I. Was the search warrant supported by probable cause?

A. Was it proper for the magistrate to consider information obtained by the Yarborough and Foster investigation in determining probable cause?

B. Did Fries's and the anonymous caller's tips, when considered under the totality of the circumstances, establish probable cause to believe that marijuana was located in Roberts's house and garage?

C. Did Roberts adequately prove that Moriarty, intentionally or with reckless disregard for the truth, omitted from the affidavit information that would have negated the existence of probable cause?

II. May separate convictions and sentences be imposed under 21 U.S.C. Sec. 841(a)(1) for both manufacture of marijuana and possession with intent to distribute the same marijuana?

DISCUSSION

I. Probable Cause

A. The Yarborough and Foster Investigation

1. Standard of Review

The district court ruled that neither the agents' use of the private road nor the agents' approach to the door of Roberts's residence constituted a search under the Fourth Amendment. This ruling resolves questions of law that we review de novo. Jones v. Berry, 722 F.2d 443, 446 n. 4 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984).

2. Analysis

Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the scope of Fourth Amendment protection against unreasonable searches and seizures extends to those areas in which a person has a "reasonable expectation of privacy." Id. 389 U.S. at 360-61, 88

                S.Ct. at 516 (Harlan, J., concurring).   See Oliver v. United States, --- U.S. ----, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984).  Under the exclusionary rule, law enforcement officers may not use information obtained in violation of the Fourth Amendment to establish probable cause justifying a search. 4
                

a. The Private Road

Roberts argues that he had a reasonable expectation of privacy in 196th Ave. and that the observations of Yarborough and Foster, a product of their drive up 196th Ave., should have been excluded from the magistrate's probable cause determination. In his concurring opinion in Katz, Justice Harlan stated that the Fourth Amendment protects those areas in which a person exhibits an actual (subjective) expectation of privacy and the expectation is one that society is prepared to recognize as reasonable. 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). By posting the "No Trespassing" and "Private Property Keep Out" signs, Roberts and the other residents along the road exhibited a subjective expectation of privacy. We must decide whether that expectation is one that society recognizes as reasonable.

Recently, in Oliver v. United States, --- U.S. ----, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984), the Court reaffirmed the vitality of the open fields doctrine. The Court agreed with Justice Holmes' conclusion in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." Id. 265 U.S. at 59, 44 S.Ct. at 446, quoted in Oliver, 104 S.Ct. at 1740. The Oliver Court followed Hester in holding that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." 104 S.Ct. at 1741.

The Oliver Court also reaffirmed the common law distinction between "open fields" and the "curtilage." Defining the curtilage as "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' " the Court approved the practice of extending Fourth Amendment protection of...