United States v. Jerry Clark Nichols , 248 F. App'x 105 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 12, 2007
No. 06-15693 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00044-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY CLARK NICHOLS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 12, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Jerry Nichols appeals his conviction after pleading guilty to manufacturing
marijuana in an amount involving at least 100 plants, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(vii), and 851. On the morning of August 26, 2004, a
pilot for the Georgia State Patrol flying over Dawson County noticed a marijuana
plant growing in a dirt spot on Nichols’s property. As the pilot banked his
helicopter to turn around and confirm his sighting, he observed additional plants.
The pilot circled the property and watched a car leave the premises, return a few
minutes later, and then leave again. The pilot radioed for another helicopter to
support him, then followed the car and was successful in persuading the driver to
return to Nichols’s property. When the pilot returned, he saw an individual get out
of a truck and commence destroying the marijuana plants with a backhoe tractor.
The pilot landed his helicopter so that a police observer on board could apprehend
the operator of the tractor, who was later identified as Nichols.
In the district court, Nichols filed a motion to suppress the evidence based
on a theory that the pilot flew the helicopter in such an intrusive manner that it
violated Nichols’s Fourth Amendment rights. The magistrate judge found that the
pilot had not flown in a manner that invaded Nichols’s right to privacy and denied
his motion. After holding an additional hearing, the district court denied Nichols’s
motion, but on another ground. The district court ruled that the manner in which
the pilot flew was irrelevant because Nichols had no reasonable expectation of
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privacy in the area where the first marijuana plant was found because it was
located in the “open fields.”
On appeal, Nichols primarily focuses on reasoning in the magistrate’s report
and recommendation to argue that the district court erred by denying his motion to
suppress the marijuana. He also argues that the district court erred by quashing a
subpoena issued to a newspaper reporter who published an article in a local
newspaper about Nichols’s arrest.
A district court’s denial of a defendant’s motion to suppress is a mixed
question of law and fact. United States v. Ramirez-Chilel, 289 F.3d 744, 748-49
(11th Cir. 2002). The district court’s factual findings are adopted as true unless
they are clearly erroneous; however, we review de novo the district court’s
application of the law to the facts. Id. at 749. We defer to determinations of the
fact finder “unless his understanding of the facts appears to be ‘unbelievable.’” Id.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend IV. The Fourth Amendment extends only to places
where “the defendant can claim a ‘reasonable expectation of privacy.’” United
States v. Berrong, 712 F.2d 1370, 1373 (11th Cir. 1983) (quoting Katz v. United
States, 389 U.S. 347, 350, 88 S. Ct. 507, 510, 19 L. Ed. 2d 576 (1967)). An
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individual’s expectation of privacy does not “extend[ ] to the open fields.” United
States v. Hester, 265 U.S. 57, 59, 44 S. Ct. 445, 446, 68 L. Ed. 2d 898 (1924). The
Supreme Court has explained that “the term ‘open fields’ may include any
unoccupied or undeveloped area outside the curtilage,” and “need be neither ‘open’
nor a ‘field’ as those terms are used in common speech.” United States v. Dunn,
480 U.S. 294, 304, 107 S. Ct. 1134, 1141, 94 L. Ed. 2d 326 (1987).
On the other hand, the curtilage, “the private property immediately adjacent
to the home,” is included in the area protected from unreasonable search and
seizure. United States v. Taylor, 458 F.3d 1201, 1206 (11th Cir. 2006). This
protected area serves as an extension of “the intimate activity associated with the
‘sanctity of a man’s home and the privacies of life.’” Id. (quoting Dunn, 480 U.S.
at 300, 107 S. Ct. 1139). The curtilage is limited “to that property that the
individual should reasonably expect to be treated as the home itself.” Id. We have
explained that “the distinction between the open fields and the curtilage of the
home is not talismanic, [but] that distinction does reflect what expectations of
privacy were reasonable.” Berrong, 712 F.2d at 1374. The bounds of the curtilage
around the home is a question of fact. Id.
To determine whether a portion of the property can be subject to the
“‘umbrella’ of Fourth Amendment protection,” Dunn, 480 U.S. at 301, 107 S. Ct.
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1140, we examine: “(1) the proximity of the area claimed to be curtilage to the
home; (2) the nature of the uses to which the area is put; (3) whether the area is
included within an enclosure surrounding the home; and, (4) the steps the resident
takes to protect the area from observation.” Taylor, 458 F.3d at 1206 (citing Dunn,
480 U.S. at 301, 107 S. Ct. 1139). “[F]or most homes, the boundaries of the
curtilage will be clearly marked.” Dunn, 480 U.S. at 302, 107 S. Ct. 1140.
However, “[a] perimeter fence around property does not create a constitutionally
protected interest in all the open fields on the property.” Taylor, 458 F.3d at 1208.
Even within a perimeter fence, “[a]n area that is substantially removed from and
separated by other structures from the house is not within its curtilage.” Id. at
1207. Where a property consists of multiple structures, the external bounds of the
curtilage is “the outer walls of the extreme outbuildings of the curtilage” that
“mak[e] up the farm home.” Berrong, 712 F.2d at 1374 (internal quotations
omitted). Only structures that “constitut[e] an integral part” of “the immediate
domestic establishment of the home” are included within “the farm home.” Id.
(internal quotations omitted). An area is more likely to be considered within the
curtilage of the home if used “for intimate activities of the home.” Taylor, 458
F.3d at 1207.
The district court did not clearly err when it concluded that the curtilage
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ended short of the first marijuana plant that the pilot observed as he flew across the
property. Nichols owned a parcel of land exceeding twelve rural acres that
contained his residence, a workout room, a garage, a large chicken house, hundreds
of chicken tepees, a dry creek bed, broken down automobiles, and a mobile home,
all of which were surrounded by a perimeter fence. There was no interior fencing
within the perimeter separating the residence from where the chickens were
allowed to roam freely and the vegetation to grow naturally.
Although no enclosure clearly delineated the curtilage of the home, Nichols
cannot be deemed to have a reasonable expectation of privacy throughout the entire
twelve acres. See Taylor, 458 F.3d at 1208 (holding that defendant “did not have a
reasonable privacy interest in the entire five acres of the property”). The dirt spot
where the pilot first observed marijuana was located more than four hundred feet
from the residence and “significantly” more than thirty feet beyond the large
chicken house that represented the outermost point of the curtilage. The dirt spot
was separated from both the residence and the chicken house by overgrown brush
and broken-down machinery. See United States v. Hatch, 931 F.2d 1478, 1481
(11th Cir. 1991) (holding that the area was outside the curtilage because it was
thirty yards from the house and separated from the house by a barn, tack room,
taxidermy building and some stock pens). Nichols did not use the area for any
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purpose that could be considered “an intimate activity of the home,” and had made
no effort to shield it from aerial surveillance. Accordingly, the district court did
not clearly err by finding that the marijuana plant initially discovered by the pilot
was in the open fields of Nichols’s property.
Nichols had no protected right to privacy in the area where the first
marijuana plant was located. Hester, 265 U.S. at 59, 44 S. Ct. 446. Once the pilot
confirmed that he had seen a marijuana plant in the “open fields” of Nichols’
property, law enforcement had probable cause to obtain a search warrant. That the
pilot observed additional plants as he slowed, descended, and circled the property
to confirm what he saw does not taint the initial discovery. See Dunn, 480 U.S. at
304, 107 S. Ct. 1141 (holding that officers did not violate the Fourth Amendment
by standing in “open fields” to observe illegal activity located inside a barn). The
pilot was justified in landing the helicopter to prevent Nichols from destroying the
marijuana with a backhoe. See United States v. Santa, 236 F.3d 662, 668-69 (11th
Cir. 2000) (discussing exigent circumstances exception to the Fourth Amendment
where defendant may destroy evidence of a crime). Thus, the district court did not
err by denying Nichols’s motion to suppress the marijuana plants.
Additionally, Nichols argues that the district court erroneously quashed a
subpoena issued to a newspaper reporter that had written about his case. We have
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“consistently enforced knowing and voluntary appeal waivers according to their
terms,” as long as the “defendant enters into it knowingly and voluntarily.” United
States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006). Nichols does not argue
that his plea was involuntary and there is no support in the record for such a
conclusion. Therefore, we will enforce the plea agreement in accordance with its
terms. The plea agreement contained a provision waiving his right to appeal on
any grounds except the district court’s decision denying his motion to suppress the
physical evidence. Although the motion to quash was raised during the
suppression hearing, the district court’s decision to quash is distinct from its ruling
on the motion to suppress. Thus, we are precluded from considering this issue on
appeal. See United States v. Colin, 314 F.3d 439, 447 (9th Cir. 2002) (holding that
the provision waiving appeal except for the court’s ruling on the motion to
suppress foreclosed Court of Appeals from reviewing district court’s denial of
defendant’s application for subpoena duces tecum).
Accordingly, Nichols’s conviction is,
AFFIRMED.1
1
Nichols’s request for oral argument is denied.
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