U.S. v. Smith

• Decision Date: 14 February 1986
• Docket Number: Nos. 85-5518,85-5519,s. 85-5518
• Citation: 783 F.2d 648
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Keith SMITH (85-5518), Eric Ross Helton (85-5519), Defendants- Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 648

783 F.2d 648

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Keith SMITH (85-5518), Eric Ross Helton (85-5519) Defendants- Appellants.

Nos. 85-5518, 85-5519.

United States Court of Appeals Sixth Circuit.

Argued Nov. 6, 1985.

Decided Feb. 14, 1986.

Warren N. Scoville (argued), London, Ky., Lowell W. Lundy (argued), Lundy and Morris, Barbourville, Ky., for defendants-appellants.

Louis DeFalaise, U.S. Atty., Lexington, Ky., Charles L. Dause, R. Michael Murphy, Fred A. Stine, V (argued), for plaintiff-appellee.

Before LIVELY, Chief Judge, MERRITT and CONTIE, Circuit Judges.

LIVELY, Chief Judge.

This is a search and seizure case in which the defendants contend that an affidavit for a search warrant was defective and that under the circumstances of this case a search warrant for defendant Helton's "premises" did not authorize a search inside his residence. Both defendants entered conditional pleas of guilty to charges of possession of marijuana, reserving the right to appeal from the judgment for review of the district court's denial of their motion to suppress evidence seized during the search of Helton's residence. Rule 11(a)(2), Fed.R.Crim.P.

I.

On August 21, 1984 a Kentucky State Police detective presented an affidavit for a search warrant to a state district judge. The affidavit stated that the detective had "reasonable and probable grounds to believe" that marijuana "is now on the premises known ... as Eric Helton, residence," and the location and a particular description of the Helton property were given. The basis of the affiant's belief then was set forth:

On the 20th day of August, 1984, at approximately 5:00 p.m., the affiant received information from a reliable informant that Eric Helton was producing marijuana at his residence.

Acting on the information received, affiant conducted the following independent investigation: On August 21, 1984 at 11:30 A.M. Detective William Stweart [sic] observed a marijuana plant growing beside the residence of Eric Helton.

The judge issued a search warrant for the premises as described in the affidavit and for any vehicle located on the premises. Detective Campbell, who made the affidavit, Detective Stewart, who provided the information about the growing marijuana plant, and two other state officers executed the warrant. The officers found a number of marijuana plants growing near the Helton house and, after entering the house, found a marijuana nursery in the basement. There were many plants growing in the basement, along with a mechanical device for turning lights on and off and for activating a watering system. The defendant Smith was sitting on a couch in the basement when the officers entered. The return on the warrant stated that the officers "destroyed by burning" marijuana plants having a value in excess of $75,000 growing inside and outside the Helton residence.

After pleading not guilty to an indictment charging them with manufacturing and possessing marijuana with intent to distribute, the defendants were permitted to enter conditional guilty pleas to a superseding information charging them with simple possession of one pound of marijuana.

II.

The district court held a hearing on the defendants' motion to suppress marijuana taken from the basement of the Helton residence. Detectives Campbell and Stewart were the only witnesses. Detective Campbell testified that an informant gave him two tips concerning marijuana. The first tip related to marijuana growing in a garden, and investigation proved the information accurate. On August 20th the informant told Campbell that Helton was growing marijuana in his basement and that there was a large marijuana plant growing by the front door of Helton's house. Campbell requested Stewart to investigate and report to him. Stewart called Campbell by radio and reported that he had checked the residence and found that the "traffic" was there. "Traffic" was a prearranged code word for marijuana. Sgt. Scott of the Kentucky State Police, who went to the Helton residence with Stewart, called Campbell by telephone and said that he and Stewart had seen a large marijuana plant growing close to the front porch of the Helton home.

Detective Stewart testified that the Helton residence was in a rural area, though there were quite a few houses in the neighborhood. After locating the Helton place Stewart turned off the highway and drove up the driveway 75 or 100 yards to the Helton house. There was a wire fence along the highway, but the driveway was open and there were no obstructions between the road and the house. Stewart said that when he reached the house he saw a marijuana plant about seven feet tall and four feet in diameter at its widest point growing within a foot or two of the house.

After sighting the plant Stewart backed his pickup truck away from the house and radioed his report to Campbell. Stewart testified that he could not have seen the plant from the highway with the naked eye, but "probably" could have seen it with binoculars. Detective Campbell estimated the distance from the road to the house as 80 yards. He also testified that there were no "no trespassing" signs and no obstructions either to seeing the area where the large marijuana plant and other smaller ones were growing, or to proceeding directly up the driveway to the house.

After the hearing concluded the district court requested briefs from the parties. In denying the motion to suppress, the district court found that Smith lacked standing and that the affidavit for the search warrant was sufficient for a probable cause determination by the state judge. The district court found that the warrant permitted the officers to search the interior of the house as well as the surrounding area. The court ruled specifically that, even though the large marijuana plant was growing within the curtilage, Helton had no reasonable expectation of privacy in the driveway, and that once the officers traversed the driveway to the area near the house the marijuana plant was in "open view."

III.

A.

We agree with the district court that the defendant Smith was not a person aggrieved by the search and seizure in this case. This is so because he did not establish a legitimate expectation of privacy with respect to his presence in Helton's basement and he asserted no property or possessory interest in the place searched or the marijuana that was seized. The Supreme Court has made these factors determinative of whether a person is aggrieved by a search and seizure. Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 432, 58 L.Ed.2d 387 (1978). The burden of production and persuasion rests on the person seeking to suppress evidence. United States v. Arboleda, 633 F.2d 985, 989 (2d Cir.1980). Smith could have testified at the suppression hearing in support of his claim, but did not do so. Any testimony by Smith at that hearing could not have been admitted as evidence of guilt at the trial. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). The fact that Smith was in possession of marijuana at the time of the search did not establish a legitimate expectation of privacy in the area searched. United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980). His presence is totally unexplained and the record discloses no facts which entitle him to object to the search.

B.

Though sketchy, the affidavit in this case appears to satisfy the "totality of the circumstances" test established by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 537 (1983). The informant's tip alone would not have been sufficient. Id. at 227, 103 S.Ct. at 2324. However, the investigation of the tip did corroborate what Detective Campbell had been told. The informant's reliability had been established in an earlier case and Stewart's observations verified the apparent accuracy of the information concerning Helton. Our duty is to "ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2324-25 (citation omitted). According due deference to the state judge's determination in this case, and testing and interpreting the affidavit in a "commonsense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965), we conclude that the warrant was supported by probable cause. United States v. Algie, 721 F.2d 1039, 1041 (6th Cir.1983).

As noted, the informant's tip would not have been sufficient without verification. The defendants contend the verification should not have been considered because Stewart conducted an unlawful search when he drove into the Helton driveway and observed the large marijuana plant growing next to his house. Helton argues that he had a reasonable expectation of privacy in his driveway and the curtilage of his house. The Supreme Court recognized in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984), that the common law considered the curtilage part of the house itself and that the courts have extended Fourth Amendment protection to the curtilage. However, the curtilage is defined not merely by location, but "by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." Id. (citations omitted).

When Stewart drove into the driveway there were no obstructions indicating any attempt to limit access to the area around the house. No effort had been made to screen off or enclose the area where the marijuana plants were growing. Except for the distance from the house, there was no apparent difference between the area where the large plant was observed and the cow pasture which the driveway crossed, and other open fields.

In United States v. Ventling, 678 F.2d 63 (8th Cir.1982), an officer drove into the driveway of a residence in a...