USA. v. Hammett, 00-10065

Decision Date10 January 2001
Docket NumberNo. 00-10065,00-10065
Citation236 F.3d 1054
Parties(9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES S. HAMMETT, Defendant-Appellant
CourtU.S. Court of Appeals — Ninth Circuit

Alexander Silvert, and Loretta A. Faymonville, Assistant Federal Public Defenders, Honolulu, Hawaii, for the defendant appellant.

Kenneth M. Sorenson, Assistant United States Attorney, Honolulu, Hawaii, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, District Judge, Presiding. D.C. No.CR-99-00189-SOM

Before: Procter Hug, Jr., Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

TROTT, Circuit Judge:

This appeal concerns the district court's order denying defendant Charles Hammett's ("Hammett") motion to suppress evidence obtained by the police during an allegedly illegal search of his home. Hammett was arrested for cultivating marijuana, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A), after police seized 2430 marijuana plants and over three pounds of marijuana from Hammett's residence. Hammett was convicted pursuant to a conditional guilty plea agreement. Hammett contends that the search warrant was invalid because it was premised on: (1) a partially false affidavit; and (2) observations made by police officers while in the curtilage of his home in violation of his Fourth Amendment rights. We have jurisdiction pursuant to 28 U.S.C.S 1291, and AFFIRM the district court.


On April 7, 1999, Officers Correia and Kerr participated in a marijuana eradication mission on the Island of Hawaii. The officers acted as "spotters," searching for marijuana plants from a government-employed helicopter. Both officers had received extensive training and had amassed considerable experience in eradication missions.

Around 9:30 a.m., while flying at an altitude of approximately 500 feet, Officers Correia and Kerr noticed a distinct green color beneath the translucent roof of Hammett's residence that in their experience indicated the presence of marijuana plants. Officer Correia additionally noted several black circular shapes, which he suspected were black plastic growing pots. Despite these observations, the officers subsequently acknowledged under oath that from their vantage point in the air they were unable to confirm their suspicion that marijuana was being cultivated at the Hammett residence. Seeking to investigate their observations, the officers instructed the pilot to land the helicopter approximately 150 yards from Hammett's home on an adjoining parcel of land.

Hammett's property is located in a wooded, secluded area. There is an unimproved dirt road leading to the house, the entrance to which is marked by a sign prohibiting trespassing and two steel poles connected by a chain. The Hammett residence is constructed of overlapping sheets of corrugated metal, with a semitransparent plastic roof. The home has just one door, which is next to the home's only window.

In approaching the Hammett residence, however, the officers did not use the dirt road leading to the house, and consequently did not see the "no trespassing" sign posted at its entrance. Instead, the officers took a straight path to the home from where the helicopter had landed, crossing an unfenced and virtually unobstructed area of land. Officers Correia and Kerr approached Hammett's residence on foot for the purpose of contacting the occupants and possibly conducting an investigation regarding the officers' previous observations.

Once the officers reached the home, they knocked on the door and shouted "Police." When they received no answer, the officers looked through the window next to the door, but saw no inhabitants. Officer Kerr again yelled through the window, and again received no answer.

The officers then proceeded to circle the house, calling out "Police" and knocking on the walls as they went. The officers testified that they circled the home for the purposes of: (1) locating a back entrance; (2) contacting people behind the structure willing to speak with them; and (3) ensuring their safety. When the officers were approximately ten to fifteen feet away from having completely circled the home, Officer Kerr observed a small crack in the overlapping pieces of corrugated steel siding forming the walls of Hammett's residence. The crack was one-half to one inch wide. Through the crack, the officers observed at least three marijuana plants inside the residence.

After viewing the marijuana plants, the officers returned to the front door and noticed for the first time that a metal locking device on the inside of the door was in the closed position. The officers testified that this fact led them to believe someone was in the home.

Officer Correia then contacted the command post and Detective Bolos, who arrived at the Hammett residence roughly one hour later. Prior to Detective Bolos's arrival, Officer Kerr left the scene via helicopter and was replaced by Officer Ishikawa. Also during that time, Hammett arrived at the property and was placed under arrest for cultivating marijuana.

Officer Correia met Detective Bolos at the entrance of the driveway to Hammett's residence. Neither Officer Correia nor Detective Bolos recalled seeing a "no trespassing " sign. Officer Correia then relayed all pertinent information to Detective Bolos that would enable Detective Bolos to compose an affidavit for the purpose of acquiring a warrant to search Hammett's property. The affidavit alleged, in pertinent part:

OFFICER CORREIA told your affiant that on April 07, 1999, at approximatley 0930 hours, while participating in a marijuana eradication mission within a government employed helicopter at an altitude in excess of 500 feet, he did observe in excess of three marijuana plants being cultivated within a residence in the Hawaiian Acres subdivision in the Puna District.

OFFICER CORREIA also informed your affiant that he then landed on an adjacent empty lot and approached the building and knocked on the door trying to contact the owner and secure a consent to search the premises for marijuana. While doing this OFFICER CORREIA said the exterior walls to the building is partially split (sic) and the interior can be seen by anyone standing from the outside looking in. It was then he then observed the marijuana plants being cultivated from within.

A search warrant was issued pursuant to the affidavit later that day, leading to the seizure of 2430 marijuana plants and 3.6 pounds of marijuana from Hammett's home.

On June 28, 1999, Hammett filed a motion to suppress the evidence seized from his residence. Specifically, Hammett claimed that the warrant affidavit, when stripped of its alleged falsities and illegally procured statements, failed to establish sufficient probable cause to support the issuance of a warrant.

After an extensive hearing, which included the testimony of Officers Correia, Kerr, and Bolos, the district court denied Hammett's motion to suppress. The court did, however, acknowledge that the warrant affidavit incorrectly represented that the officers observed marijuana plants while flying over Hammett's residence. The court stated that what the officers saw from the air only raised a suspicion as to the presence of marijuana, which did not amount to probable cause. Notwithstanding this finding, the district court ultimately upheld the validity of the warrant based on the observations made by the officers while on Hammett's property.

A. Standard of Review

A district court's conclusions of law regarding a motion to suppress are reviewed de novo. See United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000), cert. denied, _______ U.S. _______, 121 S.Ct. 406 (2000). A district court's findings of fact, however, are reviewed only for clear error. See United States v. Noushfar, 78 F.3d 1442, 1447 (9th Cir. 1996).

B. The District Court Properly Denied Hammett's Motion to Suppress

The exclusionary rule precludes law enforcement officers from using "information obtained in violation of the Fourth Amendment to establish probable cause justifying a search." United States v. Roberts, 747 F.2d 537, 541 (9th Cir. 1984). Hammett contends that the exclusionary rule is applicable to the instant case for two reasons: (1) the warrant was improperly based on a false statement in the warrant affidavit; and (2) Officer Correia's observation of marijuana through the crack in the wall of Hammett's residence was the product of an unconstitutional search without a warrant and cannot be relied upon to establish probable cause. Hammett is mistaken on both counts.

1. The Misstatement in the Affidavit Does Not Invalidate the Warrant

The district court properly rejected Hammett's argument that the warrant was ipso facto invalid because it was premised upon a partially false affidavit. As noted by the district court, the statement in the affidavit providing that Officer Correia observed marijuana plants while flying over the Hammett residence is undisputably false. The government argues that Hammett waived his ability to challenge the veracity of this statement by failing to raise the issue in the district court. In the alternative, the government contends that the misstatements in the affidavit were made negligently, rather than intentionally, and therefore do not invalidate the entire warrant. Hammett counters that although he failed to file the proper motion challenging the veracity of the warrant affidavit, the district court was justified in conducting a de facto review of the warrant affidavit. Thus, Hammett argues that the accuracy of the warrant affidavit is properly before this court, and urges that we invalidate the warrant on account of the false statements therein. We need not address the procedural question of whether Hammett can challenge the truthfulness of the warrant affidavit on appeal, however,...

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