Unpublished Disposition, 935 F.2d 277 (9th Cir. 1989)

MEMORANDUM^* 

Marion L. Steward appeals his conviction, following a conditional guilty plea, for manufacturing methamphetamine in violation of 21 U.S.C. § 841(a) (1). He raises three issues on appeal. Steward contends that the district court erred in finding that the police officers' unauthorized trespass onto Steward's property to investigate reports of chemical odors was lawful and in not suppressing the evidence gathered therefrom. He contends that the affidavit did not demonstrate probable cause for the search of his house. He argues also that the district court erred in denying him a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine if the affidavit supporting the search warrant contained material omissions or misrepresentations. The district court's rulings on all three issues are affirmed.

A. Legality of the Search and Suppression of the Evidence Gathered

Steward contends that the area surrounding his home was illegally searched without a warrant. Whether conduct constitutes a search and whether a person has a reasonable expectation of privacy in a particular place is a mixed question of law and fact reviewed de novo. United States v. Broadhurst, 805 F.2d 849, 852 (9th Cir. 1986).

In October 1988, the El Dorado County Sheriff's Department received information that "methamphetamine lab smells" had been detected four times that month emanating from an unknown source in the Greenwood, California area. On January 4, 1989, an anonymous informant reported the "odor of ether and other chemicals" coming from appellant's property at 3901 Highway 193 in Greenwood.

Steward's property comprised approximately 6.2 lightly wooded acres and was completely surrounded by a three-foot-high perimeter barbed wire fence. The fence was gated and locked and had a "No Trespassing" sign posted on it. A 200-yard dirt driveway led from the fence to a detached open carport, which lay some 50 feet from the house. A chicken wire fence was located approximately 15 feet from the house and a cement walkway ran diagonally from one end of the fence to the residence. Portions of the residence were visible from the nearby highway and road.

On the afternoon of January 12, 1989, Detectives Peter Groth and Oscar Betts of the El Dorado County Sheriff's Department visited appellant's property to investigate the reports of ether odors. The detectives climbed over the barbed wire fence to the right of the locked gate blocking the entrance to the driveway and walked up to appellant's residence. When they came within 20 to 30 feet of the carport, the officers smelled ether and other chemicals. From that vantage point, the detectives noticed that black plastic covered the interior of the house's windows. The detectives approached the house, knocked on the door and turned away after receiving no reply. As they left, they noticed a surveillance camera mounted in the lattice work adjacent to the front door. The officers also detected another chemical smell which officer Groth later identified as sodium thiosulphate, an agent used in the manufacture of methamphetamine.

Steward contends that the driveway and area near the carport fell within the curtilage of his home and were protected by the Fourth Amendment from warrantless searches. The evidence gathered from the investigation of Steward's property was used to support the search warrant affidavit. Appellant argues that this search was unlawful and its fruits should have been suppressed.

No reasonable expectation of privacy legitimately attaches to open fields. Oliver v. United States, 466 U.S. 170, 180 (1983).¹  The government's intrusion upon open fields is not one of those "unreasonable searches" proscribed by the Fourth Amendment. Id. at 177. We need not decide where the open fields end and the curtilage begins on Steward's property. Even if the officers illegally searched the curtilage (which we do not decide), the district court's failure to suppress the evidence gathered was harmless error because the affidavit was still sufficient to support a finding of probable cause without any reference to the information gleaned from the entrance onto the property. See Chapman v. California, 386 U.S. 18, 22 (1967); United States v. DiCesare, 765 F.2d 890, 897 (9th Cir.), modified, 777 F.2d 543 (9th Cir. 1985).

B. Probable Cause in the Affidavit Supporting the Search Warrant

Appellant contends that the affidavit does not support a finding of probable cause. To establish probable cause, an affidavit must set forth facts which would allow a person of reasonable caution to believe the evidence of the crime specified will be found in the stated place. Zurcher v. Stanford Daily, 436 U.S. 547, 555-58, reh'g denied, 439 U.S. 885 (1978). A magistrate's decision that probable cause exists to issue a warrant is overturned only if clearly erroneous. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.), modified and reh'g denied, 904 F.2d 25, cert. denied, --- U.S. ----, 111 S. Ct. 268 (1990).

Even if the investigation of any curtilage areas on defendant's property violated the Fourth Amendment (which we do not decide), only the information gathered from the areas where appellant had a reasonable expectation of privacy is properly excludable. See United States v. Kerr, 876 F.2d 1440, 1443 (9th Cir. 1989). Evidence which was obtained from other sources is not "fruit of the poisonous tree" and its exclusion is not warranted. Segura v. United States, 468 U.S. 796, 813-15 (1984).

Redacting all observations stemming from the entry onto Steward's property, not just those arguably made from within the curtilage, several factors still support the finding of probable cause. The police received four reports of ether smells from neighbors, one report identifying the house as the source of the smells. Steward's landlady also told the police that she smelled ether on the premises. Under the totality of the circumstances, reports of the smell of ether, acetone and other chemicals associated with the manufacture of methamphetamine support the probable cause finding. United States v. Calabrese, 825 F.2d 1342, 1349 (9th Cir. 1987); United States v. Miller, 812 F.2d 1206, 1208-1209 (9th Cir. 1987); United States v. Stanert, 762 F.2d 775, 779, modified on other grounds, 769 F.2d 1410 (9th Cir. 1985).

The affidavit also contained the statements of Steward's landlady that he paid his rent in cash. Cash payments for rentals may support a finding of probable cause when considered in conjunction with other factors. United States v. Cruz, 785 F.2d 399, 405-06 (2nd Cir. 1986). Steward's criminal record involving drug charges also supported a finding of probable cause in the totality of circumstances present in this case. United States v. Stanert, 762 F.2d at 779-80.

Appellant contends that the district court erred in denying him a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine if the affidavit supporting probable cause was based on false information or material omissions or misrepresentations. The district court's decision to deny a Franks hearing is reviewed de novo. United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988). The lower court's determination of whether a statement is false is a factual finding reviewed under the clearly erroneous standard. United States v. Roberts, 747 F.2d 537, 545-546 (9th Cir. 1984).

Steward alleges that the affidavit supporting the warrant request contained several false statements. Groth stated in his affidavit that he smelled sodium thiosulphate at Steward's house, a smell he associated with other methamphetamine laboratories. Steward submitted evidence that sodium thiosulphate has no smell. Steward contends that Groth made a material omission by failing to mention in his affidavit that the officers had scaled the perimeter fence to gain access to the property. Steward contends that Groth erred in saying that all of the house's windows were covered with black plastic when only 2 or 3 sides had black plastic. Steward also submitted evidence that the mailbox was outside the fence, not inside as Groth represented. The affidavit supporting the search warrant made no mention of the location of the mailbox, so we need not analyze this as a factor relevant to a Franks hearing.

To be entitled to a Franks hearing, appellant must make a substantial showing that the affidavit supporting the search warrant contained false statements and that those statements are necessary to support a finding of probable cause. United States v. Putney, 906 F.2d 477, 478 (9th Cir. 1990). In United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1986), our Circuit laid out a five-part test for determining when a defendant is entitled to a Franks hearing. Defendant must allege portions of the affidavit are false. Id. The false statements must be deliberately or recklessly made. Id. Defendant must make an offer of proof of the statement's falsity. Id. The veracity of only the affidavit must be challenged. Id. The challenged statements must also be necessary to establish probable cause. Id.

Regarding the sodium thiosulphate smell, what is important is not that the officer identify the correct chemical, but that he identify it as a chemical associated with the manufacture of methamphetamine. See United States v. Calabrese, 825 F.2d 1342, 1349 (chemical odor associated with manufacture of methamphetamine supported finding of probable cause). Moreover, this fact was not crucial to the establishment of probable cause. The district court did not err in denying a Franks hearing based on this immaterial misidentification.

Although it would have been preferable for the officers to have mentioned that they scaled the perimeter fence to gain access to the property, this omission was not material. Appellant had a full evidentiary hearing on the issue of the admission of evidence gathered from the search of his property. He is not entitled to relitigate it in the guise of a Franks hearing. United States v. Whitworth, 856 F.2d 1268, 1282 (9th Cir. 1988), cert. deniedz, 489 U.S. 1084 (1989) (no Franks hearing required where no evidentiary conflict to be resolved). Additionally, none of the evidence gathered from the search of appellant's property was crucial to the establishment of probable cause, so he was not entitled to a Franks hearing on this evidence.

That only 2-3 sides of the house's windows were covered with black plastic instead of all of the windows was also immaterial. Steward was not entitled to a Franks hearing because of this minor mischaracterization, especially when that evidence was not crucial to establishing probable cause.

Appellant's conviction is AFFIRMED.