United States v. Michael Johnson

207 F.3d 538, 2000 Daily Journal DAR 2667, 2000 Cal. Daily Op. Serv. 1930, 2000 U.S. App. LEXIS 3599, 2000 WL 263389
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 10, 2000
Docket99-30012
StatusPublished
Cited by7 cases

This text of 207 F.3d 538 (United States v. Michael Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Johnson, 207 F.3d 538, 2000 Daily Journal DAR 2667, 2000 Cal. Daily Op. Serv. 1930, 2000 U.S. App. LEXIS 3599, 2000 WL 263389 (9th Cir. 2000).

Opinions

TROTT, Circuit Judge:

Appellant Michael Johnson (“Johnson”) appeals from the district court’s denial of his motion to suppress evidence found as a result of a warrantless search of his residential property. Johnson filed his motion prior to entering a conditional plea of guilty to a charge of one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court denied Johnson’s motion, concluding that the search in question was justified under the exigent circumstances and hot pursuit exceptions to the Fourth Amendment’s warrant requirement. Johnson argues on appeal that the search took place within the curtilage of his home, and that the search was not justified by any exception to the Fourth Amendment’s warrant requirement. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

I

Background

At the time of the factual setting of this case, defendant Johnson was a neighbor of Steven Dustin Smith (“Smith”) in' rural Skagit County, Washington. On February 14, 1998, Deputy Chris Kading (“Kading”) of the Skagit County Sheriffs Office drove to Smith’s residence to check on Smith’s family at the request of Washington State Child Protective Services (“CPS”). CPS based its request on reports that Smith had been abusing his family, which included a newborn baby. Smith lived in his trailer at 3090 South Skagit Highway, just south of the road itself. Smith’s mother resided a short distance southwest of Smith’s trailer, atop a steep embankment, at 3088 South Skagit Highway. The driveway leading to defendant Johnson’s property lay further west at 3034-G South Skagit Highway, approximately 1200 feet west of Smith’s driveway. Like Smith’s and Smith’s mother’s property, Johnson’s [542]*542property lay to the south of South Skagit Highway. The area separating Smith’s and Johnson’s property is hilly and heavily wooded, as is the area surrounding Johnson’s property.

Prior to proceeding to Smith’s residence, Kading learned that Smith had five outstanding misdemeanor warrants: one each for driving under the influence, driving with a suspended license, resisting arrest, malicious mischief, and criminal impersonation. As Kading drove down Smith’s driveway in his police vehicle at approximately 3:00 p.m., Smith spotted the approaching officer and began to run. Kad-ing quickly exited his vehicle and called for Smith to stop. Smith stopped, but refused Kading’s commands to place his hands behind his back. At this time, Smith’s wife approached the scene, carrying the couple’s newborn baby. Kading testified that Smith appeared agitated, with clenched fists, and stared at his holstered weapon throughout this entire initial encounter. Smith began slowly approaching Kading and then briefly looked off in the direction of the highway. As Smith turned his face back to Kading, Kading sprayed him in the face with pepper spray.

After dropping to the ground, Smith wriggled out of Kading’s attempt to constrain him, took off northwest, in the direction of the highway and began running west down the center of South Skagit Highway. Following an approximately 30-second delay spent extricating himself from the pleading clutches of Smith’s wife, Kading followed the fleeing Smith in his police vehicle. Kading followed Smith down the highway until, approximately halfway between his own residence and Johnson’s driveway, Smith ran south off the highway into the brush and woods and up a steep embankment. Kading lost sight of Smith and, concerned for his safety should he pursue Smith into the woods by himself, called for backup, including a canine unit.

Kading first thought it “logical” that Smith would attempt to double back and run east towards his mother’s house. In fact, he relayed this presumption during his first few radio transmissions from the scene. However, citing a “gut feeling ... because [Smith’s] thinking I’m thinking he’s going to go to his mom’s house,” Kading continued west down South Skagit Highway and turned left (south) down a long, curvy driveway. Unknown to Kad-ing at the time, this was Johnson’s driveway. Some 250 yards up Johnson’s driveway, Kading encountered a four or five-foot tall gated cyclone fence, where he awaited backup. The fence was in poor shape, leading Kading to think an animal would be able to get through it.

Kading testified that, parked at Johnson’s gate, he was closer to where Smith had run off the highway than he would have been had he begun his search at Smith’s trailer or at Smith’s mother’s house. Kading believed Smith “was just out of sight from where [he] could see through the gate.” At some time prior to the arrival of the first backup officer, Kad-ing left this position at the gate to return to Smith’s trailer and recover a pepper spray cartridge, which he had dropped during his initial encounter with Smith.

Approximately ten or fifteen minutes after Kading first arrived at the gate, Deputy John Rose came on the scene and proceeded directly, to Smith’s mother’s residence to set up an eastern perimeter in conjunction with Kading’s western perimeter. Another ten to fifteen minutes later, Deputy Kevin Sigman joined Kad-ing at Johnson’s gate. Kading and Sig-man then decided that, due to their remote location, it would take too long for the requested canine unit to arrive. Feeling much better about the issue of officer safety now that they did not have to perform a single-officer search of the densely covered area, Kading and Sigman decided to enter the gated portion of Johnson’s property to continue the search for Smith. Kading and Sigman planned to move gradually eastward to try and pin Smith between themselves and Rose.

[543]*543Kading and Sigman manipulated the hasp on Johnson’s locked gate to enable them to drive further up the driveway. Eventually, they came upon Johnson’s house and an enclosed dog kennel. Ninety feet separated the two structures. Kading and Sigman knocked on the door of the house, found no one home, checked a covered area in the back of the house, and walked around the outside of the dog kennel to perform a cursory check. They also looked for Smith inside two old vehicles parked near the kennel and under a blue tarp resting near the cars. Having seen no sign of Smith, the officers proceeded north, down a hill behind the kennel. As they proceeded, they spotted an old “mushroom shed,”2 approximately 120-150 feet from Johnson’s house. A shadowy, darkened doorway led Kading and Sigman to believe that the shed might be a hiding spot for Smith.

Kading and Sigman approached within one to two feet of the mushroom shed and observed a new padlock hanging from the door. While standing in the doorway, Kading smelled what he recognized as marijuana through a vent built into the shed. After testing the padlock to confirm that it and the door were locked, Kading and Sigman left Johnson’s property and drove to Smith’s mother’s residence. They never found Smith.

Subsequently, a search warrant was obtained based upon Kading’s and Sigman’s observations while on Johnson’s property.3 The search warrant was executed on February 19, 1998, and 771 marijuana plants were recovered from Johnson’s house, shed, and kennel.

Johnson pled guilty to one count of manufacturing marijuana in violation of 21 U.S.C. § 841

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207 F.3d 538, 2000 Daily Journal DAR 2667, 2000 Cal. Daily Op. Serv. 1930, 2000 U.S. App. LEXIS 3599, 2000 WL 263389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-johnson-ca9-2000.