Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^** 

We consider whether the district court erred in denying the defendant's motion to suppress evidence. It found that DEA agents lawfully obtained information for a search warrant by approaching Cosby's warehouse, located 40 yards from his mobile home. Because the warehouse was not within the curtilage of his home, we affirm.

BACKGROUND

An informant told DEA agents that property near Eugene, Oregon contained an indoor marijuana growing operation. The agents corroborated the informant's tip and learned that Cosby owned the property.

The agents entered the property without a warrant. They approached a warehouse-like structure located approximately 40 yards from a mobile home. They smelled a fertilizer-vegetation odor coming from a side vent. There was no apparent need for fertilizer on the property. They heard a motor running inside. They could not see inside the warehouse because the windows were boarded up. The only way to see outside was through a peephole. The agents obtained a search warrant and found marijuana plants in the warehouse. Cosby was arrested.

He moved to suppress the evidence the agents obtained when they approached the warehouse. The court conducted two hearings on the motion and denied it. At those hearings, Cosby testified that he used the warehouse for storage and sometimes as a garage. At one time, he slept in it. Six months before his arrest, local zoning authorities told him that he could no longer sleep there.

He pleaded guilty, reserving his right to appeal. The court sentenced him to ten years imprisonment. He appeals the denial of his motion to suppress.

ANALYSIS

This court reviews de novo motions to suppress evidence. United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir. 1987).

Cosby argues that the agents' approach to his warehouse violated his Fourth Amendment rights. He urges that the area surrounding it was within his mobile home's curtilage because he once slept there, stored things there and sometimes parked his car in it.

The Fourth Amendment protects a home's curtilage. United States v. Dunn, 480 U.S. 294, 300 (1987). Curtilage is the area around the home that harbors the "intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

Four factors are considered when determining whether an area is within the curtilage: (1) its proximity to the home; (2) whether an enclosure surrounds both the home and the area; (3) the nature of the uses to which the area is put; and (4) the resident's steps to protect the area from observation. Dunn, 480 U.S. at 301. In assessing the third factor, officers' observations indicating that the area is not used for intimate activities associated with the home is especially significant. Id. at 302; United States v. Calabrese, 825 F.2d 1342, 1350 (9th Cir. 1987).

Cosby's warehouse was not within the mobile home's curtilage. It was 40 yards away and there were no fences surrounding both the warehouse and the mobile home.

Objective data indicated that the warehouse was not used for intimate activities associated with the home. The data included sounds of a running motor within, fertilizer-vegetation smells coming from inside coupled with the apparent lack of need for fertilizer, the informant's corroborated tip, boards covering the windows, and no way to see inside and only a peephole to see out. Cosby's alleged occasional uses are not relevant to the inquiry here. Dunn, 480 U.S. at 302.

Because the area was not within the curtilage, the agents lawfully approached the warehouse under the open fields doctrine. See Dunn, 480 U.S. at 304. The informant's tip and information the agents obtained in approaching the warehouse supported a finding of probable cause for the search warrant. The court correctly denied the motion to suppress.

AFFIRMED.