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United States v. French

May 28, 2002


Appeal from the United States District Court for the Central District of Illinois. No. CR 00-20032-01--Michael P. McCuskey, Judge.

Before Coffey, Easterbrook, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Coffey, Circuit Judge

Argued February 19, 2002

Probation Officer Steve Kelly came to Aaron French's property in Humboldt, Illinois, in search of Richard Hensley, a delinquent probationer. While searching for Hensley, Kelly observed evidence of a methamphetamine lab upon Aaron French's property. Kelly notified Illinois law enforcement officers who obtained a search warrant and discovered a methamphetamine lab as well as unregistered weapons in a shed on the property. French was charged by a grand jury sitting in the Central District of Illinois in a six-count indictment with various drug- and gun-related offenses. French filed a motion to suppress and argued that the evidence seized from the shed be suppressed because the law enforcement officers obtained the search warrant based upon information that Kelly had obtained in violation of French's Fourth Amendment rights. According to French's argument, Probation Officer Kelly made his observations of the methamphetamine lab from within the curtilage of French's residence, thereby conducting an illegal search.

The trial court denied French's motion to suppress, ruling that Kelly was not within the curtilage of French's home when he observed the methamphetamine lab. French later pleaded guilty, but reserved his right to appeal the trial court's adverse determination of his motion to suppress. French appeals that determination. We affirm.

I. Factual Background

On November 22, 1999, Probation Officer Steve Kelly went to Aaron French's property in Humboldt, Illinois, in an attempt to locate Hensley, his probationer. Kelly had previously been assigned to Hensley's case as his probation officer, but for three months Hensley had failed to report to Kelly as the conditions of his probation required, and Kelly's attempts to locate Hensley up to that point had been unsuccessful. But on that day, Hensley's mother and sister informed Kelly that Hensley often worked at defendant-appellant French's residence as a vehicle mechanic. After learning that Hensley might be working on French's property, Kelly drove to French's Humboldt property, accompanied by two additional probation officers, Vicki Starwalt (Kelly's supervisor) and Jana Pamperin, in search of Hensley.

When he arrived at French's residence, Kelly pulled onto an open gravel driveway. There were neither gates, nor fences, nor barricades obstructing or otherwise preventing the public from entering upon the driveway from the public road, nor were there any "no trespassing" signs posted on or around the drive. The structures on the defendant-appellant French's property, which were in plain view, consisted of a mobile home or trailer, which French used as a residence, a shed connected to a "lean-to," a three-sided structure that was partially covered by a shredded tarp on the one open side (serving as a curtain to hide the interior from view), and a second shed. The shed and lean-to were located at the south end of the drive, opposite the trailer, and faced west. The trailer faced the shed and lean-to structure and a gravel walkway approximately 20 feet in length connected the two structures. A second gravel walkway connected the trailer and the second shed, located in the southwest corner of the property. A brick and gravel walkway led from the drive to the front door of the trailer.

Kelly parked in the gravel drive, thirty to forty feet from the shed. His accompanying officers, Starwalt and Pamperin, remained in the car while Kelly exited the vehicle in order that he might locate and speak with Hensley. Upon exiting his vehicle, Kelly observed a person working on a vehicle at the south end of the drive approximately five (5) feet from the shed and lean-to, but Kelly was unable to see him clearly as the hood of another vehicle obstructed his view. Having been informed that Hensley might be working as a mechanic at the French property, Kelly decided to approach this person (rather than proceed directly to the front door of the trailer) to determine whether the person was the probationer, Hensley. As Kelly approached the unidentified person working on the vehicle, he also observed another individual whom he recognized as probationer Kevin Morlan run from the lean-to into the adjoining shed, which was unlocked at the time. Kelly had encountered Morlan but two weeks earlier at another location during a search of a methamphetamine lab where a .45 caliber automatic pistol was confiscated. Kelly immediately became suspicious of Morlan's behavior and decided that in order to ensure his safety he would order Morlan to exit the shed before he attempted to question the individual working at the parked vehicle. Using the gravel walkway that connected the trailer and the shed, Kelly approached the open entrance of the shed where Morlan had entered. As Kelly approached, he noticed through the open door that Morlan had placed his hands inside his pants pockets and thus ordered Morlan to remove his hands from his pockets and to exit the shed. Morlan complied in part, exiting the shed, but continued to conceal his hands in his pockets. Kelly noticed a rifle located on a bench inside the shed from his vantage point on the walkway. Kelly escorted Morlan to his car and upon searching him found two shotgun shells and a .44 magnum shell on Morlan's person. Morlan remained uncooperative and refused to answer any questions regarding the whereabouts of Hensley. Because of the potentially dangerous situation, Kelly asked his supervisory officer, Starwalt, to call for assistance.

After patting down and restraining Morlan, Kelly observed another individual slumped over inside a second vehicle parked on French's driveway. As Kelly approached the car, he noticed that this person (later identified as Eric Collins) also had his hands in his pockets. When Collins removed his hands, Kelly heard a "pop," which he soon learned was the sound of a light bulb breaking in Collins's pocket. Collins admitted that he had used the lightbulb to smoke methamphetamine and, upon Kelly's request, consented to a search of his vehicle.

Shortly after Collins admitted to having been smoking methamphetamine, two police officers and a state trooper arrived and Kelly briefed them on the situation. Having secured both Morlan and Collins, Kelly returned to question the individual who had continued to work on the vehicle parked near the shed. Kelly approached the unidentified person repairing the vehicle, and the individual identified himself as Nicholas Jordan. Kelly asked Jordan whether he had seen Richard Hensley, and Jordan denied having seen him. As Kelly questioned Jordan, he detected a strong odor of ether emanating from the shed, approximately five feet away. When Kelly turned toward the shed, the door of which was still open after his earlier encounter with Morlan, he was able to view the inside of the shed and observed fuel cans, glassware, and tubing, all used in the manufacture of methamphetamine. Kelly never entered the shed, nor the lean-to.

Kelly reported his observation to the law enforcement officers who were still present in response to Starwalt's previous call for assistance. Based on Kelly's observations, the officers approached the trailer to further investigate the possibility that the property might shelter a methamphetamine lab. French's wife, Brandy French, gave the officers consent to search the trailer, but told them she did not have access to the shed. The officers searched the trailer and secured the area around the shed and shortly thereafter obtained a search warrant for the purpose of searching the shed for evidence related to a methamphetamine lab. During the ensuing search, the law enforcement officers discovered and seized illegal firearms as well as items used in the manufacturing and processing of methamphetamine. Kelly left the scene shortly after the law enforcement officers obtained the warrant, having failed to locate probationer Hensley.

Several months later on April 4, 2000, Kelly returned to French's property once again looking for his parolee, Hensley (who had served a jail sentence for his November 1999 failure to report to Kelly and upon release had remained A.W.O.L. in failing to report as required). When Kelly arrived at the property, he observed two men walking from the trailer to the shed. Kelly walked up the gravel walkway to the shed and asked the person inside to come out. Eventually, Ricky Bell, who later became a co-defendant of French, exited the shed. As Bell emerged, Kelly became aware of a strong chemical odor emanating from the shed and was able to observe items used in the manufacture of methamphetamine inside the shed. Illinois drug agents were called to the scene and obtained defendant French's verbal and written consent to search the trailer, shed and lean-to. During the search, agents once again found drug paraphernalia used in the manufacture of methamphetamine as well as illegal firearms.

On June 9, 2000, a grand jury sitting in the Central District of Illinois charged French in a six-count indictment with two counts of the attempted manufacture of methamphetamine in violation of 21 U.S.C. sec. 841(a)(1) and sec. 846, possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. sec. 924(c), two counts of possession of a firearm with an obliterated serial number, 18 U.S.C. sec. 922(k), as well as possession of an unregistered short-barreled shotgun, 26 U.S.C. sec. 5861(d). A superseding indictment charged French with ...

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