U.S. v. Wells, 10–2638.

• Decision Date: 08 August 2011
• Docket Number: No. 10–2638.,10–2638.
• Citation: 648 F.3d 671
• Parties: UNITED STATES of America, Appellant,v.Michael Joe WELLS, also known as Buster Wells, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

648 F.3d 671

UNITED STATES of America, Appellant,

v.Michael Joe WELLS, also known as Buster Wells, Appellee.

No. 10–2638.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2011.Filed: Aug. 8, 2011.

Timothy J. Willis, AUSA, argued, Cape Girardeau, MO, for appellant.John M. Albright, argued, Poplar Bluff, MO, for appellee.Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,¹ District Judge.WOLLMAN, Circuit Judge.

After Michael Joe Wells was indicted for conspiracy to manufacture methamphetamine, he moved to suppress evidence obtained during two searches of an outbuilding behind his house. The district court ² granted his motion, and the government appeals. See 18 U.S.C. § 3731. We affirm.

I.

In the early morning hours of May 20, 2009, Officer Shane Bates of the Poplar Bluff, Missouri police department received a tip from a confidential informant that Wells was manufacturing methamphetamine in an outbuilding behind his house. Bates drove past Wells's house a few times, but noticed nothing unusual. When he drove past a fourth time, however, sometime between 3:00 and 3:30 a.m., Bates noticed two open doors: one on a camper parked on the street in front of the house and the other on a shed behind the house. Both had been closed during his previous passes. According to Bates, he thought it was “possible” that the open doors signified a burglary. Suppression Hr'g Tr. at 10:5–6.

Bates called two other officers who were on patrol at the time, James Gerber and Timothy Akers, and the three agreed to meet in person “offsite” to discuss how to proceed. Id. at 11:17–21. At 3:56 a.m., Akers called police headquarters with their plan: “Me, Gerber and Bates are fixing to go do a knock-and-talk on Riverview, 924 North Riverview,” that is, Wells's house. D. Ct. Order of June 14, 2010, at 2.

Wells's house is on a lot that, viewed from the street (facing south), is 68 feet wide by 178 feet deep. The lot is fenced along its sides and back, but not along its front. The house is set back 27 feet from the street and, at 44 feet wide, occupies nearly two-thirds of the width of the lot. A short paved driveway leads from the street to a carport set into the house, and a paved walkway leads from that driveway to the front door. Additionally, a door in the carport leads into the house.

On either side of the house there is a 12–foot–wide gap between the house and the lot fence. The gap on the western side is covered with grass, while the gap on the eastern side forms part of an unpaved driveway running from the street, along the eastern side of the house, and into the backyard to a shed near the back of the lot.³

Behind the house, and across the backyard from the unpaved driveway, is a two-story outbuilding. It has a ground-level door that faces east, towards the unpaved driveway, containing a large pane of frosted glass. There is also a second-story door facing north, towards the house, accessible by a flight of wooden stairs. The outbuilding sits at least 10 feet behind the house and is, at best, poorly visible from the street.

The three officers arrived at Wells's house at about 4:00 a.m. Akers and Gerber looked inside the street-parked camper to be sure no one was inside, while Bates walked down the unpaved driveway to look in the backyard shed. There was no one inside the camper, and Bates saw only “what [he] call[s] junk” in the shed. Suppression Hr'g Tr. at 29:14–18. Having found nothing, the three officers regrouped on the unpaved driveway near the rear (southeast) corner of the house. From there they had a view across the backyard of the two-story outbuilding and its ground-level door and could see—through the door's frosted-glass window—that a light was on inside.

The officers walked across the backyard to the lighted door. Through its window the officers could see “movement inside ... and that there [were] actually people in there,” although the window treatment made it impossible to “identify an[y] individual[s].” Id. 40:2–16. According to Bates, the officers “waited, I don't know, maybe 30 seconds, and [Gerber] knocked on the door.” Id. at 12:14–18. Wells answered, and as the door opened the officers immediately “smell[ed] a strong odor of burnt marijuana, and [saw that] there was smoke in the air.” Id. at 13:2–14.

The officers ordered Wells and another man who was with him, Charles Brummit, to come outside. Gerber then went inside to make sure no one else was in the building. While inside he saw “a large bag of marijuana on the table or on a shelf right beside the door.” Id. at 45:15–23. Wells and Brummit were arrested for possession of marijuana, and a search of Wells's person revealed “a coffee filter with methamphetamine in it.” Id. at 83:16–21.

Later that morning, the officers obtained a search warrant for the outbuilding, supported in part by the evidence collected at the time of Wells's arrest. Pursuant to that warrant, the officers found and “seized 34 items from the [outbuilding] as evidence of the manufacture of methamphetamine.” D. Ct. Order of June 14, 2010, at 6.

After being indicted for conspiracy to manufacture methamphetamine, Wells moved to suppress the evidence obtained both during the nighttime “knock-and-talk” and pursuant to the later search warrant. He argued that the officers had violated the Fourth Amendment when they first entered the protected curtilage of his house (his backyard) without a warrant or probable cause coupled with exigent circumstances, and that their violation required suppression of the “fruit[s]” of that “poisonous tree,” see, e.g., United States v. Alvarez–Manzo, 570 F.3d 1070, 1077 (8th Cir.2009), which included any evidence obtained pursuant to the search warrant.

The government responded that Wells had no reasonable expectation of privacy in the unpaved driveway and therefore the officers had been lawfully standing in it when they observed the lighted outbuilding. In any event, the government argued, even if the unpaved driveway is protected curtilage, the officers were justified in entering it because they were responding to an exigent circumstance, i.e., the possible ongoing burglary.

The district court granted Wells's motion. Noting that “the backyard area was fenced in on three sides,” and that, “except for the narrow unpaved” driveway leading to the shed, “the backyard could not be viewed from the street,” the district court concluded that Wells “had a protectable expectation of privacy in [ ] the entirety of the property behind his residence, especially at 4:00 a.m.” D. Ct. Order of June 14, 2010, at 7. Furthermore, it rejected “the government's contention that the existence of the unpaved driveway constituted a tacit invitation to the public to enter on the premises by way of th[at] driveway,” reasoning that “[t]o the extent that the general public, and the police, were tacitly invited to enter on the premises, the invitation extended, as in the case of most premises, solely to the front [paved] driveway and the front door of the residence.” Id. And it concluded that “the totality of the circumstances” did not support the government's claim that an exigent circumstance—a “perceived burglary,” “based solely on the officer's observation” of two open doors—excused the officers' failure to obtain a warrant prior to entering Wells's backyard. Id. at 5. It therefore “suppress[ed] from evidence any and all items seized by the arresting officers from [Wells's] person, possessions, out building and residence on May 20, 2009.” Def.'s Mot. to Suppress Evidence; D. Ct. Order of June 14, 2010, at 8.

The government appeals, arguing that the district court erred in concluding that Wells's had a reasonable expectation of privacy in any part of the unpaved driveway.

II.

“The right of the people to be secure in their ... houses ... against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend. IV. This “protection extends to the curtilage surrounding a home,” United States v. Weston, 443 F.3d 661, 666 (8th Cir.2006), which “is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (citation and internal quotation marks omitted). Consequently, curtilage generally “should be treated as the home itself.” United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).

To determine whether the officers violated Wells's Fourth Amendment right, we must answer two questions: (1) Did the officers enter the curtilage of Wells's home when they walked along the unpaved driveway to the backyard?; and, if so, (2) Was that entry reasonable?

A.

The district court determined that the portion of the unpaved driveway extending past the rear of Wells's home and into the backyard is part of the home's curtilage. See D. Ct. Order of June 22, 2010, at 1 (concluding that Wells “had a protectable expectation of privacy to th[e] part of the driveway in the back of the house”).⁴

Before we review that determination, we note the parties' disagreement on the proper standard of review. Wells argues that a district court's curtilage determination is a finding of fact, reviewable only for clear error. He points out that we have previously applied the clearly-erroneous standard to such determinations, see, e.g., United States v. Friend, 50 F.3d 548, 552 (8th Cir.1995), cert. granted, judgment vacated, and case remanded on other grounds, 517 U.S. 1152, 116 S.Ct. 1538, 134 L.Ed.2d 643 (1996) (mem.), and therefore insists that we, as a panel, must do so again, see Kostelec v. State Farm Fire and Casualty Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995) (A panel is “powerless to resolve [ ] conflict in our decisions, as one panel of this Court is not at liberty to overrule an opinion filed by another panel. Only...