Unpublished Disposition, 928 F.2d 409 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Norman William KING, Jr., Defendant-Appellant.

No. 90-50229.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1991.* Decided March 15, 1991.

Appeal from the United States District Court for the Southern District of California, No. CR-88-1041-01-JLI; J. Lawrence Irving, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before PREGERSON, CYNTHIA HOLCOMB HALL and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Defendant-Appellant Norman King, Jr. entered a conditional plea of guilty to possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Prior to King's plea, the district court denied his motion to suppress evidence. King contends that the district court erred in refusing to 1) recognize King's reasonable expectation of privacy in the private road leading to his residence and 2) suppress the marijuana seized without a warrant. We affirm.

* King's residence is situated in a rural area, far from other large lots and set back from the main road. It sits on a three-acre lot on top of a knoll. The surrounding terrain consists of steep hills and canyons. Dry brush, trees, avocado and fruit orchards cover the hills. Reporter's Transcript (RT) 2-3.

To reach King's residence, one must turn off of Rainbow Crest Drive onto Gomez Creek Road and proceed approximately two-tenths of a mile. At this point, Gomez Creek Road intersects a semi-paved road, which services two residences including King's. Id. at 3.

A short distance after the fork in the road leading to the other residence, a double locked chain held up by two railroad ties blocks the road to King's residence. The chain is high enough to block vehicles, but a pedestrian can step over the chain or walk around the railroad ties. There is a worn footpath around one of the ties. King's residence is located approximately a quarter mile from the chain and is not visible from the chain's location. Other than the chain and a fence along the road separating an avocado orchard, there are no other fences or gates which would keep someone from entering King's property. Id. at 3-5.

Along the route from Rainbow Crest Drive to King's residence, signs are posted at various points. At the Rainbow Crest Drive and Gomez Creek Road intersection a sign reads, "Gomez Creek Ranch, No Trespassing." Immediately before the fork in the roadway leading to King's residence is another sign stating, "XXXY Dead End No TRESP." Finally, past the chain is a sign saying, "Hola. No Trabajo. Adios, Amigas," which translates to "Hello. No Work. Goodbye, Friends." Id. at 4.

On December 5, 1988, the agents of the Drug Enforcement Administration (DEA) attempted unsuccessfully to obtain a warrant to search Defendant-Appellant Norman King's residence, 717 Rainbow Crest Drive. The next day, they executed a search warrant at Ralph Butterwege's home, 335 Rainbow Crest Drive, Rainbow, California. After searching Butterwege's home, the agents proceeded to King's home. They wanted to interview King as part of their investigation of a conspiracy to smuggle marijuana, which the agents suspected to include King and Butterwege. Id. at 2.

The agents stopped their car at the chain. Some agents stepped over the chain and others walked around the ties. As the agents approached King's residence, they saw King standing near his front porch placing something into a plastic bag. King saw the agents approaching but did nothing to stop them. Id. at 5.

In his brief before the district court, King conceded that the agents saw in plain view a clear plastic bag containing one pound of marijuana. The agents arrested King and conducted a protective sweep which turned up additional marijuana. King then consented to a complete search which produced over 1000 pounds of marijuana. Excerpts of Record 10.

II

A review of a district court's denial of a motion to suppress evidence involves mixed questions of law and fact. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987). This court reviews a district court's factual findings under the clearly erroneous standard. Id. Application of law to those facts is reviewed de novo. Id.

The Fourth Amendment does not restrain police from intruding into open fields, but the outdoor area defined as the curtilage of a residence retains the traditional protections of the Fourth Amendment. See Oliver v. United States, 466 U.S. 170 (1984); United States v. Dunn, 480 U.S. 294 (1987). King concedes that his roadway is not part of the curtilage of his house. Nevertheless, he maintains that the requirement of the Fourth Amendment governed the agents' intrusion past the chain and the "No Trespassing" signs.

The Fourth Amendment protects those areas in which "a person ha [s] exhibited an actual (subjective) expectation of privacy and ... the expectation [is] one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. 347, 361 (Harlan J., concurring). Both parties agreed that King exhibited an actual expectation of privacy by placing a chain across the roadway and posting various "No Trespassing" signs. King maintains that his efforts to exclude the public also made it objectively reasonable for him to expect privacy.

We disagree. In Oliver, the defendant's efforts to exclude the public were remarkably similar to King's. The roadway was blocked by a locked gate--not a simple chain--and a "No Trespassing" sign. Oliver at 171. A footpath similar to the path in this case led around the side of the gate. Id. Police walked on this path around the gate and down the road for several hundred yards. Id. Yet the Supreme Court concluded that it was not objectively reasonable for the defendant to expect privacy. Id. at 182. For the same reason, we conclude that King could not reasonably expect that the police and the public would decline to cross the chain he erected across the road. Therefore, the Fourth Amendment did not apply.

III

Finally, King contends that the district court should have suppressed the seized marijuana because the agents failed to obtain a warrant and there were no exigent circumstances. This contention has no merit. King acknowledged that he consented to a complete search of his premises. Once police obtain a valid consent to search, they may lawfully seize any contraband, even without a warrant. See Illinois v. Rodriquez, --- U.S. ---, 110 S. Ct. 2793 (1990); Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3