P. v. Knapp

Filed 2/28/07 P. v. Knapp CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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While attempting to contact defendant Eric Hall Knapp on his sizable rural property, sheriffs deputies detected the odor of marijuana emanating from a barn located near a mobile home that appeared to be the only living quarters on the property. The deputies obtained a search warrant and seized 47 pounds of marijuana from the barn. The trial court denied defendants suppression motion because the barn was outside the curtilage of the mobile home. Defendant thereafter entered no contest pleas to charges that he cultivated marijuana and possessed it for sale. On appeal, defendant reiterates his argument that the search warrant was founded on evidence obtained in violation of the Fourth Amendment. Like the trial court, we conclude the argument lacks merit. Consequently, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The seizure in question was the direct result of efforts by the County of Butte (the County) to assign an address or location to every telephone in the County so that emergency personnel could be dispatched in response to a 911 call even if the caller was unable to provide a location to the 911 operator (hereafter the 911 Project). The County formed an interagency task force (hereafter the 911 Task Force) to oversee the 911 Project. The 911 Project started out with 1700 phone numbers that were not associated with a known physical address (hereafter the unknown numbers). Those working on behalf of the 911 Project used a variety of methods to match the unknown numbers with addresses, including telephone calls to the numbers, letters to the billing addresses for the numbers, and field visits to estimated origination points of the numbers, in order to contact someone who could verify the location of the phone service.

The 911 Task Force proved very proficient. By January 2003, it had whittled the list of unknown numbers to seven or eight, which were located in secluded areas of the County. One of those belonged to defendant. While discussing the unknown numbers during an exchange of emails, 911 Task Force members discussed the practical difficulties of locating the remaining parcels, as well as safety issues that might arise during contact with a reclusive landowner. In light of these concerns, the 911 Task Force representative from the County Sheriffs Department (hereafter Department), Chief Richard Waugh, volunteered to have Department employees track down the remaining unknown numbers, due to Departments ability to locate remote properties, and access to all-terrain vehicles. The 911 Task Force accepted Captain Waughs offer.

Chief Waugh delegated the task to Lieutenant Jerry Smith, who in turn assigned the matter Marty Rolph, a deputy sheriff, and Sid Crane, a district attorney investigator (collectively deputies). The deputies were selected because they were familiar with locating remote properties, and their unit was less busy during the winter months.

The deputies decided the most efficient way to verify the location of the unknown numbers would be to visit each parcel and personally contact someone who could assist them. If no one was present, the deputies could ascertain identification numbers on nearby utility poles, which could be checked against telephone company records to verify whether the poles serviced the unknown numbers.

During daylight hours on January 30, 2003, the deputies located a gravel road that led to defendants property. After following the gravel road a little more than one mile, the deputies saw a dirt road that signaled the entrance to defendants property. Approximately 50 feet along the dirt road, the deputies encountered a four-foot tall padlocked metal gate that blocked the road. The gate was joined to a mesh wire fence of the same height (hereafter the perimeter fence). A clearly-identified electrical hot wire, of the type used to control livestock or other animals, ran along the top of the perimeter fence. There was a gap between the edge of the gate and its hitching post, which could be passed by stepping over the knee-high padlocked chain that kept the gate shut. The deputies did not observe any signs prohibiting trespassing.

The deputies passed the gate of the perimeter fence and continued along the dirt road another 150 feet before coming to a second gate and fence (hereafter the interior fence), constructed in the same manner as the perimeter fence, except that it did not have a hot wire or lock. Past the gate, to the left of the road, sat a large, two-story barn. Ahead of them, they saw the mobile home. The two structures were about 88 feet apart at their closest points. To their right, the deputies saw a corral some 300 feet away, occupied by a solitary horse. The interior fence commenced at some point past the corral, where it was connected to another fence. After passing in front of the mobile home and barn, it curved around the barn and came to a stop in the woods on the far side of the barn. The deputies continued on the dirt road, past the barn, to the mobile home, where they knocked on its door without response. They called out defendants name multiple times, again receiving no response. Spotting a utility pole to the side of the mobile home (hereafter the first utility pole), the deputies obtained its identification number.

Turning their attention back to the barn area, the deputies approached it with the hope of finding someone who might not have heard them. They walked past the barn on the side they had not seen, farthest from the dirt road, on their way back to the entrance to defendants property. While passing the barn, the deputies noticed that PVC pipes appeared to supply it with water, electrical lines fed it power, and a protruding vent indicated a dryer was inside. A substantial number of empty one-gallon plastic planting containers were piled next to the barn.

As they continued past the barn, towards the entrance to defendants property, the deputies saw a second utility pole, located some 41 feet away from the barn, on the side farthest from the mobile home, but closest to the property entrance. They approached the second utility pole and checked it for its identifying number. From that vantage point, looking back at the barn, the deputies noticed a set of doors on each level of the barn. There were air gaps in each set of doors. While at the second utility pole, the deputies detected the odor of marijuana coming from the barn.

Based on their observations, the deputies obtained a search warrant for the barn and mobile home.

Following the seizure of the marijuana, defendant was charged with cultivating marijuana (Health & Saf. Code, 11358) and possession of marijuana for sale. (Id., 11359.)

Defendant moved to suppress the evidence seized at the barn because the search warrant affidavit was premised on the allegedly illegal observations made by the two deputies. After an evidentiary hearing, the court denied the motion on the ground that the officers made their observations while outside the curtilage of the mobile home. Defendant thereafter entered pleas of no contest to the two charges. Placed on probation, he appealed.

DISCUSSION

Defendant contends: he had a reasonable expectation of privacy in the mobile home and barn, and the court erred by finding the barn was outside the curtilage of the mobile home; by allowing utility poles to be placed on his property, defendant consented to entry thereon by utility or telephone company employees only, and the deputies entry may not be upheld because they were conducting a civil standby for such a person, since they did not accompany anyone to his property; and the breadth of the search negated any reliance on the special needs exception to the warrant requirement.

In reviewing the trial courts ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently

assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.] (People v. Hughes (2002) 27 Cal.4th 287, 327.)^[1]

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . . (U.S. Const., 4th Amend.) This federal guarantee applies to the states, and is coterminous with its California constitutional counterpart, which prohibits the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless mandated by United States Supreme Court precedent interpreting the federal Constitution. (People v. Camacho (2000) 23 Cal.4th 824, 829-830.)

The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy. ([Katz v United States(1967) 389 U.S. 347, 360 [19 L.Ed.2d 576, 587] 88 S.Ct. 507, 516 (Harlan, J., concurring)].) Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? [Citation.] (California v. Ciraolo (1986) 476 U.S. 207, 211 [90 L.Ed.2d 210, 215].)

While the answer to the first question is yes, the answer to the second question is no, for two reasons.^[2] First, the second utility pole was not situated within the constitutionally-protected curtilage of the mobile home. Second, assuming the second utility pole was within the curtilage, the deputies had a lawful right to inspect the pole for identifying numbers. Under either view, no search occurred.

[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. [Citation.] (Oliver v. United States (1984) 466 U.S. 170, 178 [80 L.Ed.2d 214, 224].) The area immediately surrounding the home, or curtilage in the parlance of the Fourth Amendment, is the area so intimately tied to the home itself that it should be placed under the homes umbrella of Fourth Amendment protection. (United States v.Dunn (1987)480 U.S. 294, 301 [94 L.Ed.2d 326, 335] (Dunn).)^[3] By contrast, [a]n open field need be neither open nor a field as those terms are used in common speech. (Dunn, supra, at p. 304.) A thickly wooded area, for example, may be considered an open field for the purposes of the Fourth Amendment analysis. [Citation.] (People v. Channing (2000) 81 Cal.App.4th 985, 991.)

The Fourth Amendment does not prohibit an officer in an open field from observing areas inside the curtilage, even if the officer trespassed over the defendants property and scaled fences to get to the observation point. (Dunn, supra, 480 U.S. at p. 304 [94 L.Ed.2d at pp. 336-337]; Oliver v. United States, supra, 466 U.S. at p. 179 [80 L.Ed.2d at p. 224]; People v. Channing, supra, 81 Cal.App.4th at p. 992.)

In Dunn, a case remarkably similar to the present one, law enforcement agents had information that a large quantity of chemicals used to manufacture amphetamine was located in a barn on the defendants 198-acre ranch. The barn was located 60 yards from the residence on the ranch, and 50 yards from a fence that surrounded the residence. (480 U.S. at p. 297 [94 L.Ed.2d at p. 332].) While standing halfway between the residence and the barn (i.e., 30 yards from each), an officer detected the odor of phenylacetic acid emanating from the barn. (Ibid.) The Supreme Court held that the officer was standing in an open field when he detected the odor, even though he had trespassed on the defendants property, and bypassed a ranch-style perimeter fence as well as multiple interior fences constructed mainly of posts with multiple strands of barbed wire. (Id. at pp. 297, 304.)

In the present case, the trial court concluded that the barn and second utility pole were outside the curtilage of the mobile home. These legal conclusions find factual support in the record. To begin with, the mobile home sat almost 30 yards from the barn, a considerable distance to traverse, particularly during the wet winter months, in which to conduct activities normally considered to be intimately connected with the home itself, and to which a barn structure might be put, like washing clothes, taking a shower, or providing a work area. When the deputies first passed the barn while walking on the dirt road to the mobile home, there were no clear indications that it was used in such ways.

It is true that the barn and mobile home were set apart from the lands closer to the property entrance by the interior fence. The interior fence, though, extended past the corral over 100 yards from the mobile home, well beyond an area that would normally be considered the curtilage, and thus not readily conveying that the mobile home and barn were to be considered as one, or significantly more so than the mobile home and corral.

Similarly, defendants efforts to protect these areas from passers-by, aside from their distance from the property line, were less extreme than those undertaken by the property owner in Dunn, supra, 480 U.S. 294 [94 L.Ed.2d 326] where the officers were deemed to be outside the curtilage even though they passed by multiple barbed wire fences. Here, by contrast, the perimeter fence and gate provided easy passage, and the interior fence was unlocked.

The facts that provided the most factual support for the barn being within the curtilage of the mobile home the PVC water supply and exterior dryer vent - were not apparent until the deputies passed by the barn on the side farthest from the dirt road, while attempting to locate defendant. Even if we conclude these facts brought the barn within the curtilage of the mobile home, the deputies were lawfully at that position within the curtilage when they made their observations.

The deputies had the right to attempt to contact defendant on his property to ascertain information concerning his telephone service, and to approach the barn on its far side to see if someone was there after receiving no response at the mobile home. As Justice Breyer wrote when sitting as Chief Judge of the First Circuit Court of Appeals, A policeman may lawfully go to a persons home to interview him. [Citations.] In doing so, he obviously can go up to the door [citation], and, it seems to us, if that door is inaccessible there is nothing unlawful or unreasonable about going to the back of the house to look for another door, all as part of a legitimate attempt to interview a person. [Citations.] (U.S. v. Daoust (1st Cir. 1990) 916 F.2d 757, 758; see also U.S. v.Titemore (2d Cir. 2006) 437 F.3d 251, 252-260, and cases therein cited.) By parity of reasoning, when defendant failed to answer the door, it was reasonable for the deputies to approach the barn to ascertain whether defendant was in it. That the deputies purpose in contacting defendant had no connection with a criminal investigation buttresses our conclusion. Here, the deputies were simply trying to make contact with defendant to obtain information, not to conduct a general exploratory search, as defendant argues. After determining that defendant was not in the barn, the deputies acted reasonably by checking the second utility pole on their way out of defendants property, in order to obtain the potentially useful information for which they entered the property in the first place.

Turning to the second utility pole, we have no difficulty concluding that it, too, was beyond the curtilage of the mobile home. The second utility pole stood a substantial distance from the mobile home and barn, in a location that was closer than either the mobile home or barn to the property entrance. The pole was about 41 feet from the side of the barn that was farthest from the mobile home, which was itself about 88 feet from the closest point of the barn. Without even adding the additional distance covered by the barn, the second utility pole was over 40 yards from the mobile home. This distance is greater than the distance from the residence that the officers in Dunn were standing when they detected chemical odors coming from a barn on the defendants property. For Fourth Amendment purposes, the deputies were standing in an open field when they inhaled the scent of marijuana from the barn.^[4]

Even if we assume the second utility pole was within the curtilage of the mobile home, the deputies did not infringe defendants constitutional rights when they approached it to obtain identifying information. A case on point is People v. Stanley (1999) 72 Cal.App.4th 1547, where the police suspected the defendant was diverting power to grow marijuana within his residence, which was shrouded by foliage. The police persuaded power company officials to install a power usage meter on a power pole located within the curtilage of the residence. Rejecting the defendants argument that the use of the meter violated his reasonable expectation of privacy, the court wrote: [A]ppellants demonstrated no actual, subjective expectation of privacy in the devices used by the utility to deliver electricity to Stanleys house. The poles, wires, transformers, and meters were owned and maintained by the utility. These devices are in plain view. There can be no expectation of privacy in the equipment used by the utility to deliver power to the house. Moreover, the electricity delivered by the utility is measured by a meter routinely monitored by its employees. The usage reflected by the meter is recorded in utility company records and billed to Stanley. (Id. at pp. 1552-1553.)

People v.Stanley, supra, 72 Cal.App.4th 1547, supports the conclusion that defendant did not have a reasonable expectation of privacy in the second utility pole. The pole was embedded in defendants land to supply electrical and telephone service to the property. The utility and telephone service providers crossed defendants property to repair or replace the pole, or to verify its identification number, whether for its own records, or to assist the 911 Project or law enforcement authorities. Here, the deputies were acting on behalf of the 911 Task Force when they made their observations. Moreover, defendant could not have reasonably expected that a telephone company employee performing this important but irregular task would forego all rights to a law enforcement escort while traversing defendants secluded property to complete it. These circumstances distinguish the present case from those in which a third partys authority to enter a defendants rented room or premises conferred no commonly understood authority to allow entry by law enforcement officers. (See Georgia v. Randolph (2006) ___ U.S. ___, ___ [164 L.Ed.2d 208, 220-221], and cases there cited.) Since the deputies could have lawfully accompanied a telephone company employee onto defendants property to obtain information from the utility poles, their observations while performing that mission were reasonable. The result should be no different because the deputies took upon themselves the duties the telephone company employee or some other 911 Task Force member would normally perform, and which Lieutenant Smith had assigned to them. The deputies were given the job of matching the unknown numbers to addresses, informed that previous efforts to contact defendant had failed, that they had been selected based on their expertise in locating rural properties, and that utility pole numbers could supply the missing information. The deputies chose the most expeditious manner of ascertaining the remaining unknown numbers, without putting telephone company or other 911 Task Force personnel at risk.^[5]

People v. Camacho, supra, 23 Cal.4th 824, does not require a different result. There, in response to a nighttime noise complaint, two officers peered into the defendants residence from a side yard even though there was no disturbance when they arrived, and they made no effort to contact the defendant by knocking on the front door. (Id. at pp. 837-838.)

Here, by contrast, the deputies stood in a lawful vantage point when they made their observations, whether or not the barn was in the curtilage. For the same reason, defendants reliance upon Lorenzana v. Superior Court (1973) 9 Cal.3d 626 is misplaced.

For the foregoing reasons, we conclude that the suppression motion was properly denied. Our conclusion makes it unnecessary to discuss alternative grounds to uphold the search.

DISPOSITION

The judgment is affirmed.

MORRISON , Acting P.J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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^[1] Defendant relies on U.S. v. Johnson (9th Cir. 2001) 256 F.3d 895, 909-913, which concluded that a determination of the curtilage must be reviewed de novo on appeal rather than deferring to the determination by the trial court. Even if we were to review the curtilage issue de novo, the result would be the same: we would find no error.

^[2] The remote location of defendants property, its hilly and wooded terrain, and the placement of multiple fences, one of which was locked and electrified, manifested a subjective expectation of privacy well beyond the curtilage of the mobile home and barn.

^[3] The curtilage is typically defined in reference to a dwelling structure. It can extend, though, to a detached garage (People v. Robles (2000) 23 Cal.4th 789, 795) or barn. (Dunn, supra, 480 U.S. at p. 301 [94 L.Ed.2d at p. 335].) To identify the extent of the curtilage, four factors are considered: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. (Dunn, supra, at p. 301 [94 L.Ed.2d at pp. 334-335].)

^[4] We would reach the same conclusion even if we credited defendants suggestion that the barn had its own curtilage.

^[5] We do not deem it significant that the deputies did not attempt less intrusive means to contact defendant prior to visiting his property, since the 911 Task Force had undertaken reasonable efforts to contact defendant previously.