United States. v. Johnson

Page 895

256 F.3d 895 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MICHAEL JOHNSON DEFENDANT-APPELLANT.

No. 99-30012

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 18, 2000

Filed July 20, 2001

[Copyrighted Material Omitted]

Michael Filipovic, Assistant Federal Public Defender, Seattle, Washington, argued the cause and submitted a brief for the appellant.

Bruce F. Miyake, Assistant United States Attorney, Seattle, Washington, argued the cause and submitted a brief for the appellee.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, Chief District Judge, Presiding D.C. No. CR-98-00273-BJR

Before: Mary M. Schroeder, Chief Judge, and Harry Pregerson, Warren J. Ferguson, Alex Kozinski, Stephen S. Trott, Thomas G. Nelson, A. Wallace Tashima, Barry G. Silverman, Ronald M. Gould, Richard A. Paez and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion; Opinion by Judge Ferguson; Opinion by Judge Kozinski; Concurrence by Judge Tashima; Concurrence by Judge Gould; Concurrence by Judge Paez

PER CURIAM

A majority of the en banc court (Judge Ferguson, joined by Chief Judge Schroeder and Judges Pregerson, Tashima, Paez and Berzon) concludes that the officers did not have probable cause to enter Johnson's property, and were not in hot pursuit when they searched the area outside the mushroom shed. That same majority also concludes that whether the search took place within the curtilage is a question that must be determined in the first instance by the district court.

A different majority (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman, Gould and Paez) concludes that, under Ornelas v. United States, 517 U.S. 690 (1996), the determination of the curtilage must be reviewed de novo on appeal. Of those, five judges (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman and Gould) conclude that the search took place outside the curtilage.

On the probable cause issue, the decision of the district court is REVERSED. On the curtilage issue, we REMAND to the district court for a determination of whether the search lay within the curtilage and any other issues necessary to the disposition of this case. The panel retains jurisdiction over the case in the event of any further appeals.

FERGUSON, Circuit Judge, with whom Chief Judge SCHROEDER and Circuit Judge PREGERSON join; Circuit Judge TASHIMA joins with respect to all of the opinion except Part III.B a, b, c, and d; Circuit Judge PAEZ joins with respect to all of the opinion except Part III.A; and Circuit Judge BERZON joins with respect to all of the opinion except for Part III.B and the final two sentences of Part III.A:

I.

In an attempt to apprehend another person who was a misdemeanor suspect last seen 30 minutes previously and whose whereabouts were unknown, state sheriff officers broke into Michael Johnson's fenced and locked residential yard on his rural Washington property without a warrant. While searching his yard, officers smelled marijuana in a detached shed. As a result of this warrantless search, a search warrant was issued and Johnson was subsequently indicted on one count of manufacturing marijuana in violation of 21 U.S.C. sec. sec. 841(a)(1) and (b)(1)(B). Prior to entering a conditional plea of guilty, Johnson filed a motion to suppress the evidence gained as result of the search.

The district court denied Johnson's motion, determining that the search was justified under the hot pursuit and exigent circumstances exceptions to the warrant requirement of the Fourth Amendment. In affirming the district court, the threejudge panel of this Court assumed that the shed was not in an open field but was part of the curtilage. United States v. Johnson, 207 F.3d 438, 543-44 (9th Cir. 2000). However, the district court did not make any finding or conclusions page regarding the open field-curtilage question.

We therefore:

1. REMAND the case to the district court for factual findings and conclusions on whether the shed was in an open field or part of the curtilage, a matter not developed by the district court.

2. REVERSE the district court on the issue of the warrant requirement, a question that was fully developed in the district court and by the three-judge panel.

II.

In February 1998, Washington State Child Protective Service ("CPS") asked Deputy Chris Kading of the Skagit County Sheriff's Office to check on the welfare of the children living in Steven Dustin Smith's residence in rural Skagit County, Washington. Deputy Kading ran a check on Smith and discovered that Smith had five outstanding arrest warrants for misdemeanor offenses.¹

On February 14, 1998, Deputy Kading drove by Smith's residence and noticed that he was standing outside his home. As Deputy Kading pulled into the driveway, Smith began to run. Deputy Kading ordered Smith to stop, which he did. Once he confirmed Smith's identity, Deputy Kading told him that he was under arrest and ordered him to turn and place his hands behind his back. According to Deputy Kading, Smith became very agitated. He began clenching his fists and looking at the deputy's gun. Deputy Kading unsuccessfully attempted to calm Smith with "verbal judo." Smith made no sudden moves towards Kading, but instead turned to look off down the road. When he turned back to Kading, Kading sprayed his face with pepper spray because, he felt, the "verbal judo" was not working. Smith dropped to his knees and covered his eyes with his hands. Deputy Kading grabbed Smith and attempted to handcuff him, but Smith broke free and began running down the highway.

The attempted arrest took place at a trailer park located at 3090 South Skagit Highway. Approximately 157 feet west down the highway, a steep and rocky driveway led to the home of Smith's mother and step-father. Approximately 1254 feet in the same direction lay the driveway of Defendant Michael Johnson. All of these locations were south of the highway.

Deputy Kading returned to his vehicle and began pursuing Smith. As he drove down the highway, he saw Smith leave the road and run south straight into the woods. At this point, Smith was approximately halfway to Defendant Michael Johnson's driveway. Deputy Kading quickly lost sight of him in the thick brush. Although his testimony is somewhat confusing, Kading apparently believed that Smith would remain in the woods between Johnson's residence and Smith's mother's house.²

Kading radioed for back up and requested a canine unit. He turned down a long, twisting driveway and followed it back 250 yards into the woods until he came to a 14-foot locked gate with a "No Trespassing" sign. A 5-foot high cyclone fence extended in both directions from the gate. This was Johnson's driveway. Kading then returned to the Smith residence for his pepper spray, came back, and waited by the locked gate for backup.

Approximately 15 minutes later, Deputy John Rose was directed by Kading to drive to Smith's mother's house and wait there. Ten minutes later, Deputy Sigman met Kading at the gated entrance to Johnson's yard. The three deputies discussed the situation and formulated a plan in which Kading and Sigman would enter Johnson's property and proceed through the woods toward Smith's mother's house.

In order to pursue Smith, the officers felt they needed to get through the locked gate. They could not open the padlock; instead, according to Kading, there was enough "play" in the locking mechanism to allow the officers to "manipulate" the hasp of the gate and gain entry while keeping the padlock locked. Once inside the gate, the officers drove up the driveway approximately 50 yards and parked their vehicle in a yard. On the right side of the driveway was Johnson's house. On the left side of the driveway, approximately 30 yards from the house, was a large dog kennel enclosed by a chain link fence. Behind the dog kennel was a small "mushroom shed."³ The shed was about 40-50 yards from the house. None of the residential area had been visible from the gate.

The first thing the officers did was knock on the door of Johnson's home to see if he was in and alert him to their presence. When they received no answer, they began searching his property for Smith. First, they checked a covered patio near the back of the residence to see if Smith was hiding there. Next, they checked the outer area of the kennel. The officers then peered into two old vehicles parked next to the kennel and looked under a blue tarp that was spread out near the cars. Finally, the officers followed a trail behind the kennel to the mushroom shed, which was locked with a new padlock. When the officers were within one or two feet of the door of the mushroom shed, Kading smelled what he knew from training was marijuana. He tried to open the door to the shed, but the padlock prevented him. At this point, the deputies left Johnson's property and drove to Smith's mother's house. They did not continue their planned search in the woods, and Smith was never found.

A state search warrant was subsequently obtained based on Kading's and Sigman's observations while on Johnson's property. On February 19, 1998, the warrant was executed and 553 marijuana plants were recovered. On April 23, 1998, Johnson was federally indicted on one count of manufacturing marijuana in violation of 21 U.S.C. sec. sec. 841(a)(1), and 841(b)(1)(B).

Prior to entering a conditional plea of guilty, Johnson filed a motion to suppress, arguing that the deputies violated the Fourth Amendment when they conducted a warrantless search of his property. The district court judge held an evidentiary hearing and denied the motion, basing her ruling primarily on the existence of "hot pursuit" or "exigent circumstances." Johnson subsequently pled guilty to the filed charges, but preserved his ability to appeal the denial of his motion to suppress.

III.

Although both the parties and the district court...