Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1989)

MEMORANDUM^** 

Richard A. Hix appeals his conviction by conditional guilty plea for manufacturing marijuana in violation of 21 U.S.C. § 841(a) (1). He contends that the district court erred by denying his motion to suppress marijuana seized from his property pursuant to a warrant because the warrant was based on officers' observations during an earlier unconstitutional entry. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's denial of a motion to suppress evidence, and we review the district court's fact findings for clear error. United States v. Suarez, 902 F.2d 1466, 1467 (9th Cir. 1990).

The fourth amendment protects the curtilage, the area immediately adjacent to a home that the resident may reasonably expect will remain private, but no legitimate expectation of privacy attaches to open fields, which may include any unoccupied or undeveloped area outside the curtilage. Oliver v. United States, 466 U.S. 170, 180, 180 n. 11 (1984). To determine whether an area is part of the curtilage, the district court considers four factors: (1) the proximity of the area to the home; (2) whether it is included within an enclosure surrounding the home; (3) the nature of the uses to which it is put; and (4) the resident's steps to protect it from observation. United States v. Dunn, 480 U.S. 294, 301 (1987). In assessing the third factor, officers' observations indicating that the area is not used for intimate activities associated with the home are significant. Id. at 302-03; United States v. Calabrese, 825 F.2d 1342, 1350 (9th Cir. 1987).

Here, Drug Enforcement Administration (DEA) agent Raymond Troy suspected that Hix might be growing marijuana because he had purchased certain equipment from a gardening supply store. After dark, at 8:00 p.m. on November 17, 1989, Troy and two county sheriff's deputies parked their car on a public road and walked one-half mile down a private road surrounded by wooded land. A locked vehicle gate with a "private property" sign on it blocked the road, and a tree with a "no trespassing" sign on it was nearby. The officers walked around this gate and a similar gate 100 feet farther along, and proceeded another three-tenths mile to a clearing in which Hix's buildings stood.

The officers approached within 20 feet of "Building 1", a barn, smelled the odor of growing marijuana, and heard humming that they associated with transformers used in marijuana-growing operations. Although a fence ran along one side of Building 1 and "Building 2", the officers did not cross it to approach Building 1. Building 2, which did not completely resemble either a house or a barn, was 100 feet behind Building 1. A previous owner had lived in Building 2, but Hix and his co-defendant lived in a mobile home 100 yards behind Building 1. Troy obtained a search warrant and seized marijuana plants from Buildings 1 and 2.

First, the district court did not err by finding that Building 2 was not a home with a curtilage for which Hix could reasonably expect fourth amendment protection because he did not live there. See Dunn, 480 U.S. at 300.

Second, the district court did not err by determining that Building 1 was not in the curtilage of the mobile home. Building 1 was 100 yards from the mobile home. See Dunn, 480 U.S. at 303 (barn 60 yards away cannot be treated as adjunct of residence). No fence or other enclosure surrounded both Building 1 and the mobile home. See id. at 301. The officers' observation of smells and sounds associated with marijuana growing indicated that Building 1 was not used for domestic activities associated with a home. See Calabrese, 825 F.2d at 1350. In addition, Building 1 was not hidden from observation by fences or other measures. See Dunn, 480 U.S. at 301.

Accordingly, we affirm the denial of the suppression motion and Hix's conviction.

AFFIRMED.