U.S. v. Swepston, s. 92-7051

• Decision Date: 12 March 1993
• Docket Number: 92-7052,Nos. 92-7051,s. 92-7051
• Citation: 987 F.2d 1510
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth G. SWEPSTON, Sr.; Kenneth G. Swepston, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1510

987 F.2d 1510

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth G. SWEPSTON, Sr.; Kenneth G. Swepston, Jr.,

Defendants-Appellees.

Nos. 92-7051, 92-7052.

United States Court of Appeals, Tenth Circuit.

March 12, 1993.

Richard A. Friedman, Attorney, Dept. of Justice, Washington, DC (John Raley, U.S. Atty., Sheldon J. Sperling, Bruce Green, Asst. U.S. Attys., Muskogee, OK, with him on the brief), for plaintiff-appellant.

Don F. Baker and Jerry S. Moore of Baker & Baker, Tahlequah, OK, for defendants-appellees.

Before TACHA and BALDOCK, Circuit Judges, and SAFFELS, District Judge. ^*

BALDOCK, Circuit Judge.

The government appeals from the district court's order granting Defendants' motions to suppress evidence seized without a warrant, evidence seized pursuant to a warrant, and oral statements made by Defendants to arresting officers. We have jurisdiction under 18 U.S.C. § 3731.

Defendants, Kenneth G. Swepston, Sr. ("Senior"), and Kenneth G. Swepston, Jr. ("Junior"), live on Molly Brown Mountain in the Cookson Hills of Cherokee County, Oklahoma. This is a sparsely populated area consisting mainly of timbered countryside with scattered clearings. Senior and Junior have separate residences located approximately one mile apart. Between the two residences is property that appears to be abandoned and which does not belong to either Senior or Junior.

The record reveals that Senior's residence is located on a two-acre tract of land that is surrounded by dense timber and underbrush. Senior's property contains two sheds located to the southeast of the house. The larger of the two sheds is a partially roofed chicken shed which is approximately one hundred feet from Senior's house. The chicken shed, along with Senior's house, is partially enclosed by a barbed wire fence. The area between the house and the chicken shed which consists mainly of trees and underbrush, is maintained and kept cleared by Senior, and there is a path leading from the house to the chicken shed. Neither the house nor the chicken shed can be seen from a public road or from any adjoining neighbor's property.

The record also reflects that Junior's residence is enclosed by a chain-link fence. To the east of Junior's fenced residence is cleared land used as a chicken yard, containing numerous small chicken huts. A portion of the chicken yard is in a valley. The chain-link fence encloses a section of this valley, and the remainder of the valley is enclosed by a barbed wire fence which attaches to the chain-link fence at its southeast and northeast corners and runs along a tree line to the east. At its furthermost distance, the barbed wire fence is over four hundred feet from the chain-link fence and over five hundred feet from Junior's house. Guard dogs are on the perimeter of this area, and there is no public access to this area other than through a locked gate. The portion of the chicken yard enclosed by the barbed wire fence cannot be seen from a public road or from any adjoining neighbor's property.

In August 1991, a Bureau of Indian Affairs marijuana eradication reconnaissance team ("MERT") conducted various helicopter reconnaissance operations including one over the Molly Brown Mountain area on August 7, 1990. The MERT officers targeted defendants' properties for aerial surveillance based on information they had received concerning the presence of marijuana. The district court found that during the course of the operation over the area, the helicopter operated at an altitude substantially less than five hundred feet. ¹ The MERT officers first spotted marijuana on the abandoned property between Junior's and Senior's residences, then in Senior's chicken shed, and finally on Junior's property. The MERT officers also spotted several individuals on Senior's property entering a pickup truck and attempting to leave the residence.

After spotting the marijuana and the individuals on Senior's property, the helicopter crew alerted officers on the ground, who intercepted the pickup truck as it departed from Senior's residence. The three occupants of the pickup were handcuffed, placed in one of the patrol vehicles, and taken to Senior's residence. Shortly thereafter, Senior was detained as he arrived at his residence. Senior made several statements claiming ownership of the marijuana. Senior refused, however, to give the officers permission to enter his residence. Senior was arrested after an officer inspected his chicken shed to confirm the marijuana sighting. The officers ultimately seized approximately one hundred marijuana plants from Senior's chicken shed.

Shortly thereafter, three officers drove to Junior's residence. One of the officers went to the northeast corner of the chain-link fence which surrounded Junior's house and observed marijuana growing both inside and outside the chain-link fence. The marijuana was contained in two gardens inside the valley on Junior's property and the gardens were each approximately fifty to three hundred feet from Junior's house. The marijuana growing outside the chain-link fence was surrounded by the barbed wire fence. Throughout the entire area where the marijuana was found were chickens and chicken huts.

While at the northeast corner of the chain-link fence, an officer encountered Junior, who was coming out from the tree line. Junior made a statement to the effect, "it's my marijuana, just get the helicopter out of here because the roosters are worth more than the marijuana." Junior was then arrested, and he indicated that he would cooperate if the helicopter would leave. After the helicopter left, Junior gave the officers permission to search his house. Later, the officers seized approximately four hundred and sixty-eight marijuana plants from the two gardens.

On February 13, 1992, Senior and Junior were indicted for manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1), maintaining a place for the manufacture and distribution of marijuana, in violation of 21 U.S.C. § 856(a)(1), and managing and controlling buildings used for manufacturing, distributing, and storing marijuana, in violation of 21 U.S.C. § 856(a)(2). Defendants filed motions to suppress the marijuana, other seized evidence, and oral statements they made to arresting officers. After a two-day evidentiary hearing, the district court granted the motions.

The government frames two issues for review: (1) whether the district court erred in ruling that Senior's chicken shed and the area where marijuana was growing on Junior's property outside his chain-link fence, are, for purposes of the Fourth Amendment, within the curtilages of Senior's and Junior's respective homes, ² and (2) whether, even if the areas are within the curtilages of Defendants' homes, the aerial observation of the marijuana did not violate the Fourth Amendment because the marijuana was first detected while the helicopter was positioned over the abandoned property outside the curtilages.

In reviewing an order granting a motion to suppress, we accept the trial court's factual findings unless clearly erroneous, United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir.1992), and we view the evidence in the light most favorable to the district court's finding, United States v. Preciado, 966 F.2d 596, 597 (10th Cir.1992). Questions of law we review de novo. Waupekenay, 973 F.2d at 1535. As a threshold matter, we agree with the Third and the Eleventh Circuits that the issue of what comprises curtilage is a question of fact, see United States v. Acosta, 965 F.2d 1248, 1255 (3d Cir.1992); United States v. Hatch, 931 F.2d 1478, 1480 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 235, 116 L.Ed.2d 191 (1990), and therefore subject to the clearly erroneous standard of review. We reach this conclusion because the issue of whether an area is part of the curtilage of the home depends upon the factual resolution of whether "the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." United States v. Dunn, 480 U.S. 294, 300-01, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987) (citations omitted). Further, to resolve curtilage questions, Dunn prescribes a four-factor test, see infra, which involves purely factual determinations. See id. at 301, 107 S.Ct. at 1139.

The Fourth Amendment protects the home and its curtilage from warrantless searches and seizures. Id. at 300, 107 S.Ct. at 1139. "[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." Id. (citing Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984)). In Dunn, the Court held that the central component of this inquiry--"whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life"--is resolved with particular reference to four factors. Id. These factors are (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by.

Id. The government claims that the district court erred by mechanically applying these four factors and that Dunn commands a different result.

The defendant in Dunn owned a large tract of rural property completely encircled by a perimeter fence, with numerous interior barbed wire fences. Id., 480 U.S. at 297, 107 S.Ct. at 1137. A fence encircled the residence and a greenhouse. Id. Approximately fifty yards from this fence were two barns, and the larger of the barns was enclosed by a wooden fence with an open overhang. Id. Locked, waist-high gates barred entry into the barn, and netting material stretched from the top of the wooden gates to the ceiling of the barn. Id.

In rejecting the defendant's...