Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

MEMORANDUM^** 

Defendant-appellant Denver Shutz ("Shutz") appeals his conviction, following a conditional guilty plea, for maintaining a place for the manufacture of methamphetamine, in violation of 21 U.S.C. § 856. Shutz appeals the trial court's denial of his motion to suppress evidence. Specifically, Shutz contends the trial court erred in finding the warrantless search of his barn was justified by exigent circumstances. We affirm.

DISCUSSION

We review the factual findings made by the trial court at a suppression hearing for clear error. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987). The ultimate issue of whether exigent circumstances justify a warrantless search is reviewed under a de novo standard. United States v. Echegoyen, 799 F.2d 1271, 1277-78 (9th Cir. 1986).

At the outset, we address the Government's contention that Shutz did not enjoy a reasonable expectation of privacy in hiw own barn. The trial court found that the barn was barricaded on two sides by stacked raisin bins to obstruct access. Occupants of the home on the same property as the barn were told not to go near the barn. Clearly, Shutz exhibited a subjective expectation of privacy. See United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir. 1984). This is an expectation that society would recognize as reasonable. See id. Therefore, Shutz' barn and the surrounding curtilage were entitled to Fourth Amendment protection.

The trial court also found that the barn's curtilage extended to, but not beyond the raisin bins surrounding two sides of the barn. We agree. In determining the extent of the curtilage, the relevant inquiry is "whether the area in question is so intimately tied to the home itself that it should be placed under the home 'umbrella' of Fourth Amendment protection." United States v. Dunn, 480 U.S. 294, 301 (1987). Shutz went to considerable efforts to reduce access to the barn. The area within this barricade is "intimately tied" to the barn, justifying Fourth Amendment protection. Id.

We now address the issue raised by Shutz. He contends the trial court erred in finding that the warrantless search was justified by exigent circumstances. Exigent circumstances are defined as "circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Ether is highly flammable and explosive. If not handled properly and with care, ether can easily ignite causing significant injuries to surrounding individuals and property. Under similar circumstances, we have previously held that the smell of ether in a rural area is a sufficient exigent circumstance to justify a valid warrantless search. See Echegoyen, 799 F.2d at 1278-79.

Shutz raises several arguments in attempting to distinguish Echegoyen from the present case. We do not find his arguments persuasive. Because the curtilage did not extend beyond the raisin bins, the agent who first approached the barn did not encroach upon Shutz' expectation of privacy. He was validly on the property pursuant to a search warrant. The warrant did not cover the barn, but as Agent Flores rounded the bins, he smelled ether and noticed lights on in the barn. At this point, given the explosiveness of ether, exigent circumstances justified the warrantless search of the barn.

As in Echegoyen, the agents' failure to secure a telephonic warrant prior to the search did not mitigate the exigency nor the validity of the search. See id. at 1279-80. The evidence indicates the agents were first concerned with making the area safe. They entered the barn to ensure no one else was present inside, questioned codefendant Lowe regarding the ether and danger posed, and called the fire safety authorities. Only after the barn was declared safe did the agents enter the barn with an eye toward seizing incriminating evidence, and this was done with the consent of Shutz.

In conclusion, we find that the trial court's findings of fact were not clearly erroneous. Upon de novo examination, we conclude that exigent circumstances existed justifying the warrantless search of the barn when the trained narcotics agent smelled ether and saw lights and movement inconsistent with the usual activities that would take place in a barn in a rural area.

AFFIRMED.