Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

No. 89-10285.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and FLETCHER, Circuit Judges, and KELLEHER, District Judge.^* 

MEMORANDUM^** 

Defendant John Odis Lowe appeals his conviction, following a conditional guilty plea, for manufacturing and aiding and abetting in the manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. He appeals the lower court's conclusion that exigent circumstances justified a warrantless search of his laboratory.

"This court will uphold the district court's findings of fact at a suppression hearing unless they are clearly erroneous. 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 entry and/or search is resolved under the de novo standard. United States v. Echegoyen, 799 F.2d 1271, 1277-78 (9th Cir. 1986)." United States v. Wilson, 865 F.2d 215, 216 (9th Cir. 1989).

The lower court judge found that during the two weeks that Lowe was involved in the manufacturing of methamphetamine from the barn, the barn was his residence and, as such, Lowe has standing to object to the warrantless search.

When determining if an area is curtilage the relevant consideration is "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." United States v. Dunn, 480 U.S. 294, 340 (1987). The lower court judge found that the curtilage of the barn did not extend beyond the edge of the bins Lowe had placed on two sides of the barn. Lowe went to considerable efforts to reduce access to the barn. Two of the three passageways to the barn were barricaded either by a handmade barricades with a "No Trespassing" sign or by a pile of brush. Also, occupants of the adjacent home had been warned not to go near the barn.

Despite all Lowe's effort, since the curtilage did not extend beyond the edge of the bins, the agent who first approached the barn from the one unobstructed side, did not encroach upon Lowe's expectation of privacy. Agent Flores, as he rounded the bins, smelled ether and noticed there were lights on in the barn. Because Agent Flores was a narcotics agent he recognized the chemical smell as being associated with methamphetamine manufacturing.

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 and other persons, the destruction of relevant evidence, the escape of the suspects 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).

In United States v. Echegoyen, 799 F.2d 1271 (9th Cir. 1986) under similar circumstances this court found that the smell of ether in a rural area is a sufficient exigent circumstance to allow a valid warrantless search. Defendant argues Echegoyen is distinct from this case because there agents had a right to be where they were when they first smelled either whereas in this case defendant contends the agent had no right to be near the bins. However, the agent was operating on a valid search warrant for the residence upon which property the barn was located.

The district court's findings of historic 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 activites that would take place in a barn in a rural area.

Affirmed.