U.S. v. Ventling
| Decision Date | 18 May 1982 |
| Docket Number | No. 81-2160,81-2160 |
| Citation | 678 F.2d 63 |
| Parties | UNITED STATES of America, Appellee, v. Larry VENTLING, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Philip N. Hogen, U. S. Atty., Sioux Falls, S. D., Ted L. McBride, Asst. U. S. Atty., Rapid City, S. D., for appellee.
Bangs, McCullen, Butler, Foye & Simmons and Michael M. Hickey, Rapid City, S. D., for appellant.
Before HEANEY, ROSS and ARNOLD, Circuit Judges.
Larry Ventling was charged with two counts of blocking or interfering with the use of a United States Forest Service Road in violation of 36 C.F.R. § 261.12(e). Ventling had a nonjury trial before a magistrate and was convicted. He was sentenced to one year of unsupervised probation and fined $1,000.00. He appeals, alleging as error:
1) the trial court's failure to dismiss one of the citations because it was not properly signed;
2) that the trial court failed to suppress evidence obtained via an illegal search;
3) that the evidence was insufficient to support the conviction;
4) That the trial court erred in refusing to grant Ventling's motion for new trial on the basis of newly discovered evidence.
The events giving rise to Ventling's conviction began on November 1, 1980, when Lee Sutton, a United States Forest Service employee, discovered roadblocks composed of several large boulders which had been erected on Forest System Roads 308 and 308.1B. On November 2, United States Forest Service Special Agent Gary Qualls investigated the blockade sites in an attempt to determine who had erected the blockades. Qualls observed tractor tire tracks at intermittent intervals between the two blockades and a continuous set of tracks leading from the blockade nearest the Ventling residence to the Ventling driveway. The Ventling residence was the closest to the site of the blockades. Qualls drove into the driveway and went to the front door of the Ventling home. He noticed more tire tracks in the yard and further up the yard he saw a tractor equipped with a backhoe and a front-end loader. At the time the tractor was partially obscured by a truck which was parked next to it. After a brief conversation with a woman he presumed to be Mrs. Ventling, Qualls was denied permission to inspect the tractor tires and asked to leave the premises. As he was leaving the yard Qualls stopped to photograph some tractor tracks along the side of the driveway. Mrs. Ventling objected and again instructed Qualls to leave, which he did. Qualls obtained a search warrant based on the following information:
1) his observation of tractor tracks with an alternating hooked chevron pattern at the blockade site 2) the fact that the Ventling residence is the closest to the site of the blockades;
3) his observation of tractor tracks of an identical pattern upon entering the Ventling drive;
4) the refusal by a woman at the Ventling residence to permit him to examine a tractor parked in the yard. 1
The warrant was executed November 5. No physical evidence was seized, but the photographs which were taken and the observations made by Qualls and Sutton were the subjects of a motion to suppress, which was denied.
Ventling's first contention of error on appeal is that the magistrate erred in failing to dismiss Violation Notice G10572 on the ground that it had not been signed nor certified by an officer prior to trial. The trial court held that this failure was a mere clerical error and denied a motion to dismiss based on this omission. The district court affirmed the denial on the ground that the Rules of Procedure for the Trial of Minor Offenses Before United States Magistrates require that a citation be verified only where the defendant fails to appear and a warrant is required and that since Ventling appeared voluntarily he was in no way prejudiced.
On appeal he urges that the refusal to dismiss the unsigned violation notice contravenes Rules 3 and 7 of the Federal Rules of Criminal Procedure in that an information must be signed by an attorney for the government and that a complaint must be sworn before a magistrate.
Ventling's objection to the unsigned violation notice is predicated upon the assumption that it does not significantly differ in importance from a warrant or summons. While the purpose of all three procedures is to secure the appearance of the defendant there are some basic differences. Upon failure to comply with the violation notice a defendant is not subject to the same consequences as he would for a failure to respond to a warrant or summons. Despite the suggestion in appellant's brief that he was "seized," the record appears to indicate that he appeared before the magistrate voluntarily. Had Ventling not appeared, the government would have been required to comply with the requirements of Rule 4 of the Rules for the Trial of Minor Offenses Before United States Magistrates before a warrant could issue. See 8B Moore's Federal Practice and Procedure, § App. 4.00 at App. 51 (2d ed. 1981). It does not appear from the circumstances of this case that Ventling was in any way harmed by the omission of a signature on the violation.
Ventling advances a two-tiered argument in which he maintains that the photographs taken and Qualls' observations made on his initial visit to the Ventling residence should be suppressed because they were made within the protected curtilage area of the residence and that the search warrant was defective in that it was based on misrepresentations by special agent Qualls.
Ventling maintains that the photographs and observations made were within the curtilage area and should be suppressed since he had a reasonable expectation of privacy for that area. He argues that this expectation was further reinforced by the fact that he had clearly posted the entrance of his driveway with no trespassing signs. The transcript reveals conflicting testimony as to the placement of the signs and their degree of obviousness. Ventling testified that the signs were posted on his property and were immediately noticeable to anyone entering the drive. Sutton testified that some signs had been posted on Forest Service property near the entrance to Ventling's drive and that he had removed them. The trial court found and the district court agreed that the signs were posted on Forest Service property and not particularly directed towards Ventling's drive. The trial court stated:
The driveway from Road 308 leading to the Ventling buildings is similar to most rural farmsteads in the Black Hills. It provides access to and from the public highway for the occupants and their invitees and members of the public contacting the occupants for business or social purposes and for police or fire protection. The absence of a closed or blocked gate in this country creates an invitation to the public that a person can lawfully enter along the driveway during daylight hours to contact the occupants for a lawful request and if the request is refused to leave by the same way. The presence of "no trespassing" signs in this country without a locked or closed gate make the entry along the driveway for the purposes above described not a trespass and therefore does not constitute an intrusion prohibited by the Fourth Amendment. Therefore, the Court finds that the driveway is not "protected curtilage" under these circumstances and that the photographs taken by Agent Qualls of the tire prints immediately adjacent and in plain view of the driveway were admissible.
Magistrate's Memorandum Opinion at 2. The district court agreed.
The standard for determining when the search of an area surrounding a residence violates fourth amendment guarantees no longer depends on outmoded property concepts, but whether the defendant has a legitimate expectation of privacy in that area. United States v. John Bernard Industries, 589 F.2d 1353, 1362 (8th Cir. 1979).
Ventling's assertions of expectations of privacy with regard to the driveway and yard seem unreasonable under the circumstances here. We have in some...
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