Lead Opinion
PER CURIAM Oрinion; Opinion by Judge FERGUSON: Opinion by Judge KOZINSKI; Concurrence by Judge TASHIMA; Concurrence by Judge RONALD M. GOULD; Concurrence by Judge PAEZ.
A majority of the en banc court (Judge Ferguson, joined by Chief Judge Schroeder and Judges Pregerson, Tashima, Paez and Berzon) concludes that the officers did not have probable cause to enter Johnson’s
A different majority (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman, Gould and Paez) concludes that, under Ornelas v. United States,
On the probable cause issue, the decision of the district court is REVERSED. On the curtilage issue, we REMAND to the district court for a determination of whether the search lay within the curtilage and any other issues necessary to the disposition of this case. The panel retains jurisdiction over the case in the event of any further appeals.
FERGUSON, Circuit Judge, with whom Chief Judge SCHROEDER and Circuit Judge PREGERSON join; Circuit Judge TASHIMA joins with respect to all of the opinion except Part III.B a, b, c, and d; Circuit Judge PAEZ joins with respect to all of the opinion except Part III.A; and Circuit Judge BERZON joins with respect to all of the opinion except for Part III.B and the final two sentences of Part III.A:
I.
In an attempt to apprehend another person who was a misdemeanor suspect last seen 30 minutes previously and whose whereabouts were unknown, state sheriff officers broke into Michael Johnson’s fenced and locked residential yard on his rural Washington property without a warrant. While searching his yard, officers smelled marijuana in a detached shed. As a result of this warrantless search, a search warrant was issued and Johnson was subsequently indicted on one count of manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Prior to entering a conditional plea of guilty, Johnson filed a motion to suppress the evidence gained as result of the search.
The district court denied Johnson’s motion, determining that the search was justified under the hot pursuit and exigent circumstances exceptions to the warrant requirement of the Fourth Amendment. In affirming the district court, the three-judge panel of this Court assumed that the shed was not in an open field but was part of the curtilage. United States v. Johnson,
We therefore:
1. REMAND the case to the district court for factual findings and conclusions on whether the shed was in an open field or part of the curtilage, a matter not developed by the district court.
2. REVERSE the district court on the issue of the warrant requirement, a question that was fully developed in the district court and by the three-judge panel.
II.
In February 1998, Washington State Child Protective Service (“CPS”) asked Deputy Chris Kading of the Skagit County Sheriffs Office to check on the welfare of the children living in Stevеn Dustin Smith’s residence in rural Skagit County, Washington. Deputy Kading ran a check on Smith and discovered that Smith had
On February 14, 1998, Deputy Fading drove by Smith’s residence and noticed that he was standing outside his home. As Deputy Fading pulled into the driveway, Smith began to run. Deputy Fading ordered Smith to stop, which he did. Once he confirmed Smith’s identity, Deputy Fading told him that he was under arrest and ordered him to turn and place his hands behind his back. According to Deputy Fading, Smith became very agitated. He began clenching his fists and looking at the deputy’s gun. Deputy Fading unsuccessfully attempted to calm Smith with “verbal judo.” Smith made no sudden moves towards Fading, but instead turned to look off down the road. When he turned back to Fading, Fading sprayed his face with pepper spray because, he felt, the “verbal judo” was not working. Smith dropped to his knees and covered his eyes with his hands. Deputy Fading grabbed Smith and attempted to handcuff him, but Smith broke free and began running down the highway.
The attempted arrest took place at a trailer park located at 3090 South Skagit Highway. Approximately 157 feet west down the highway, a steep and rocky driveway led to the home of Smith’s mother and step-father. Approximately 1254 feet in the same direction lay the driveway of Defendant Michael Johnson. All of these locations were south of the highway.
Deputy Fading returned to his vehicle and began pursuing Smith. As he drove down the highway, he saw Smith leave the road and run south straight into the woods. At this point, Smith was approximately halfway to Defendant Michael Johnson’s driveway. Deputy Fading quickly lost sight of him in the thick brush. Although his testimony is somewhat confusing, Fading aрparently believed that Smith would remain in the woods between Johnson’s residence and Smith’s mother’s house.
Fading radioed for back up and requested a canine unit. He turned down a long, twisting driveway and followed it back 250 yards into the woods until he came to a 14-foot locked gate with a “No Trespassing” sign. A 5-foot high cyclone fence extended in both directions from the gate. This was Johnson’s driveway. Fading then returned to the Smith residence for his pepper spray, came back, and waited by the locked gate for backup.
Approximately 15 minutes later, Deputy John Rose was directed by Fading to drive
In order to pursue Smith, the officers felt they needed to get through the locked gate. They could not open the padlock; instead, according to Kading, there was enough “play” in the locking mechanism to allow the officers to “manipulate” the hasp of the gate and gain entry while keeping the padlock locked. Once inside the gate, the officers drove up the driveway approximately 50 yards and parked their vehicle in a yard. On the right side of the driveway was Johnson’s house. On the left side of the driveway, approximately 30 yards from the house, was a large dog kennel enclosed by a chain link fence. Behind the dog kennel wаs a small “mushroom shed.”
The first thing the officers did was knock on the door of Johnson’s home to see if he was in and alert him to their presence. When they received no answer, they began searching his property for Smith. First, they checked a covered patio near the back of the residence to see if Smith was hiding there. Next, they checked the outer area of the kennel. The officers then peered into two old vehicles parked next to the kennel and looked under a blue tarp that was spread out near the cars. Finally, the officers followed a trail behind the kennel to the mushroom shed, which was locked with a new padlock. When the officers were within one or two feet of the door of the mushroom shed, Kading smelled what he knew from training was marijuana. He tried to open the door to the shed, but the padlock prevented him. At this point, the deputies left Johnson’s property and drove to Smith’s mother’s house. They did not continue their planned search in the woods, and Smith was never found.
A state search warrant was subsequently obtained based on Kading’s and Sig-man’s observations while on Johnson’s property. On February 19, 1998, the warrant was executed and 553 marijuana plants were recovered. On April 23, 1998, Johnson was federally indicted on one count of manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)(B).
Prior to entering a conditional plea of guilty, Johnson filed a motion to suppress, arguing that the deputies violated the Fourth Amendment when they conducted a warrantless search of his property. The district court judge held an evidentiary hearing and denied the motion, basing her ruling primarily on the existence of “hot pursuit” or “exigent circumstances.” Johnson subsequently pled guilty to the filed charges, but preserved his ability to appeal the denial of his motion to suppress.
III.
Although both the parties and the district court focused attention on the “exigent circumstances” and “hot pursuit” exceptions to the Fourth Amendment warrant requirement, it also must be determined whether the fenced area around the residence that was searched was subject to Fourth Amendment protection.
The Fourth Amendment protection against warrantless searches extends to the curtilage around one’s home. “Whether an area is within the protected curtilage of a home is an essentially factual inquiry” that we review for clear error. United States v. Soliz,
In this case, the facts regarding the curtilage issue and any determination based therein are very complex, as demonstrated by the discussions in this opinion and the dissent. Regardless of what type of review must ultimately be made, it is vital for the district court to first make findings of fact upon which that review can be based. Because a majority of the judges on the panel reach the dispositive issue and agree that the search violated Fourth Amendment protections, we leave for another panel the question of resolving what standard of review this Court applies to curtilage determinations. See United States v. Crespo de Llano,
In United States v. Dunn,
resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by.
The Court stressed that these factors cannot be “mechanically applied,” but are merely “useful analytical tools” to determine whether an area is to be protected from unconstitutional searches and seizures. Id. The position taken by the dissent illustrates why this Court should not determine curtilage questions with no guidance from the district court as the factfinder. The findings by the dissent, as demonstrated below, miss essential elements in the determination of curtilage.
B.
In undertaking the four-factor analysis outlined in Dunn, the district court must be mindful of two additional factors that are important here. First, the government has conceded that it has the burden of proof in this case to show that the search was not within the curtilage of Johnson’s residence. Second, the Johnson property had been under surveillance by members of the Skagit County Inter-Local Drug Enforcement Unit, who suspected
a. Proximity
Generally, “there is not any fixed distance at which curtilage ends.” United States v. Depew,
The dissent does not distinguish between a yard and a field in a rural area. Calling a fenced-in area around a rural home an “open field” does not make it so. It is still a yard, even if somewhat larger than yards in urban areas. The realities of rurаl country life dictate that distances between outbuildings will be greater than on urban or suburban properties and yet still encompass activities intimately associated with the home; this is the nature of the “farmstead.” Recently this Court, in United States v. Furrow,
b. Enclosure
The second factor analyzes whether the area is included within an enclosure surrounding the home. “[F]or most homes, the boundaries of the curtilage will be clearly marked; and the conception defining curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience.” Dunn,
Johnson’s property consists of over 12 acres of wooded land. Within the twelve-plus acres, a relatively small yard is enclosed by a five-foot high fence. This section encloses the house, the dog kennel, and the mushroom shed. Although there are some smaller fences within this yard, none of the internal fencing segregates the house from the shed. As this yard is surrounded by dense woods and underbrush, the only access to the mushroom shed is from Johnson’s driveway and residenсe.
Prior to beginning their search, the officers possessed no objective data that the mushroom shed was not used for intimate activities associated with the home. Other circuits that have addressed the issue have found that officers must have “objective data” about the use of the area prior to entry. See Daughenbaugh v. City of Tiffin,
In Dunn, although the Supreme Court relied on information obtained both before (aerial photographs) and after (smell of phenylacetic acid) the search began, it emphasized that it found “especially significant” the fact that the law enforcement officials possessed “objective data” that the barn in question was used to manufacture drugs before entering the property. Dunn,
We have never held that an officer lacking any prior objeсtive knowledge of the use of an outbuilding may approach it free of Fourth Amendment constraints. See, e.g., Depew, 8 F.3d at 1426-1427; Calabrese,
d. Visibility
The fourth Dunn factor focuses on the steps taken by Johnson to prevent observation of the area from passers-by. No part of the residential area is visible from the highway or from the gate. Johnson purchased the property precisely because it was in a rural and secluded area, and one of his reasons for constructing the fence was to keep out neighbors. Only two other people (the meter man and propane man) had keys to the padlock. Under these circumstances, Johnson appears to have made every effort to prevent the public from observing the residential portion of his property. See Depew,
The dissent suggests that the fact that Johnson’s fences did not block visibility is important to this inquiry. The uncontro-verted testimony of the officers, however, indicated that the woods and underbrush surrounding Johnson’s yard did block visibility. Indeed, this is why Smith was so difficult to follow. Physical boundaries may protect one’s privacy. See Reilly,
State law is also relevant to determining the reasonableness of police activities un
[T]he presence of the long history of territorial and state laws prohibiting trespass indicates that Washington places important emphasis on a person’s right to exclude others from his or her private property, regardless of the size or developed state of that property.
State v. Johnson,
Under the Washington Constitution, the test is whether the government intruded upon the defendant’s “private affairs.” State v. Myrick,
Myrick requires us to look to the nature of the property, the expectation of privacy it reasonably supports, and the nature of the intrusion to answer the ultimate question: Whether the government’s intrusion violated a privacy interest which citizens of this state have traditionally and justifiably held safe from governmental trespass absent a warrant.
Id. at 449. One of the officers who conducted the search in this case testified as to the kennel, located near the shed, that “if I would have been a private citizen driving up and parked where I did, I’d believe that the kennel would have been attached to that residence.” Despite the fact that local drug enforcement had suspected “for some time” that Johnson was growing marijuana on his property — and apparently had performed fly-overs of the area — they did not feel at liberty to enter and investigate the yard around his house.
Based on the combination of the (1) the rural setting, (2) the fence around the home and shed, (3) the lack of objective data pointing to illegal activity prior to entry, and (4) the inability to see the shed from the “open fields,” one could find that the shed was “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”. Dunn,
IV.
While the issue of curtilage in this ease remains unsettled, the district court fully developed its ruling that the warrant-less search of Johnson’s property was justified and not entitled to Fourth Amendment protections. Our inquiry now is whether the officers’ warrantless search of
“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York,
A.
Probable cause is hardly a new concept. See U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...” ). For over 75 years, the Supreme Court has stated that probable cause exists when the “facts and circumstances” before the officer are sufficient to warrant a person of reasonable caution to believe that the items sought will be found in the place to be searched. See Brinegar v. United States,
By his own testimony, Officer Hading was led to Johnson’s property by no more than a “gut feeling” that Smith would be there. The Supreme Court, however, has made it clear that “hunches” are insufficient to establish reasonable suspicion, let alone probable cause. See Illinois v. Wardlow,
Officer Hading did not provide a single objective fact to support his hunch or establish that it provided probable cause to rummage around Johnson’s yard. At the
We find no objective facts in the record to support Officer Kading’s “gut feeling.” For example, Officer Kading does not claim that he saw footprints leading toward Johnson’s property, heard sounds coming from Johnson’s property, or observed broken branches on the trees leading toward Johnson’s property. The only thing that Officer Kading knew was that a half hour earlier, Smith had run into the woods halfway between Johnson’s driveway and Smith’s driveway and that Smith’s mother lived nearby, in the opposite direction of Johnson’s house.
That is the extent of the objective facts. None of these facts make it any more likely that Smith was hiding on Johnson’s property rather than in some other location in the surrounding area. Police officers do not obtain probable cause to conduct a search in one place based on the lack of probable cause to search another place. They obtain probable cause because the facts indicate that they will find what they are looking for in the place to be searched. See Terry,
Moreover, we are at a loss as to why, given the facts before us, Officer Kading reached his decision to search Johnson’s property at all. Officer Kading was chasing Smith in his car; it seems likely that once Smith ran into the woods he would avoid areas where cars could travel. Apparently, this is exactly what happened. After all, this was a sparsely populated rural area. The terrain was hilly and covered with thick brush and trees. Johnson’s property alone consisted of over 12 acres and the neighboring lots were a similar size. Once Smith got into the woods and Officer Kading lost sight of him, Smith’s options were unlimited. He could have run east toward his own property; he could have run southwest past Johnson’s property; he could have stayed in the woods by the highway and used it as a lookout post; or he could have watched Kading drive down Johnson’s driveway and then run north across the street into the woods on the other side of the highway. If he had wanted shelter, Smith could have sought shelter on his parent’s property, his own property, some other neighbor’s property, or out in the woods.
These facts are analogous to those in United States v. Winsor,
On appeal, we rejected the government’s argument that the “hot pursuit” exception justified the warrantless search. We stated that inside a hotel, each room enjoys its own zone of protection from unreasonable searches and seizures. Id. at 1397. Based
The Appellant in this case argues persuasively that, like the individual hotel rooms in Winsor, all of the homes in the area where the police saw Smith enjoyed a zone of privacy that they could not invade without probable cause. In fact, Johnson presents an even stronger case. In Winsor,
There is simply no way to transform Officer Kading’s “gut feeling” into “probable cause.” The Supreme Court has clearly stated that gut feelings and inarticulable “hunches” do not equal reasonable suspicion, let alone probable cause. Wardlow,
B.
Our decision would not be altered even if the Government were able to show probable cause. “[N]o amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’” Horton v. California,
The hot pursuit exception to the warrant requirement only applies when officers are in “immediate” and “continuous” pursuit of a suspect from the scene of the crime. Welsh,
Based on the record in this case, it is clear that the officers’ pursuit of Smith was not “continuous.” After Officer Kad-ing lost sight of Smith- in the woods, he waited for a half hour for backup to arrive. During this time, he returned to Smith’s residence and retrieved a pepper spray canister that he had lost during his confrontation with Smith. When the officers entered Johnson’s property, no one had
While we respect Deputy Kading’s concern for his safety had he followed Smith into the woods, it does not change the fact that Johnson had not been seen or heard for at least 30 minutes after disappearing into the woods. This is not a case where the police officers always knew exactly where the suspect was, but decided that it would be dangerous for them to enter the property until reinforcements arrive. Cf. Lindsey,
In this case, however, the continuity of the chаse was terminated permanently. Smith did not run into a confined area where Officer Kading could monitor his movements while waiting for his backup to arrive. Smith ran into a wooded area where he was free to run for over a half hour. Once the alleged “pursuit” resumed, the officers no longer had any idea where Smith was.
Under these circumstances, the continuity of the chase was clearly broken and a warrant was required. Although this requirement may be inconvenient to law enforcement, any other outcome renders the concept of “hot pursuit” meaningless and allows the police to conduct warrantless searches while investigating a suspect’s whereabouts.
We also find instructive the Supreme Court’s holding in Welsh v. Wisconsin,
Smith was only wanted for misdemeanor offenses. Even his unlawful conduct that gave rise to the initial chase, i.e., resisting arrest, is a misdemeanor under Washington law. See Wash. Rev.Code § 9A.76.040. Although this does not definitely preclude a finding of exigent circumstances, it weighs heavily against it.
Very few cases have considered this issue. In National Organization for the Reform of Marijuana Laws v. Mullen,
Of course, the subsequent warrant after the invalid search does not validate the search. Wong Sun v. United States,
V.
The search was without probable cause and not within the exigent circumstances or hot pursuit exceptions to the Fourth Amendment warrant requirement. Accordingly, we REVERSE on the probable cause issues and REMAND on the curti-lage issue for further proceedings consistent with this opinion.
KOZINSKI, Circuit Judge, with whom Circuit Judges TROTT, T.G. NELSON, SILVERMAN join, Circuit Judge RONALD M. GOULD joins with respects to Parts I, II, III.A and IV, and Circuit Judge PAEZ joins with respect to Part III.A:
A majority holds that the search was not justified by the hot pursuit exception to the Fourth Amendment, but we need only reach that exception if the search intruded on an area protected by the amendment. Although our prior precedents regarded the curtilage as a factual question, we conclude, by a different majority, that those cases have been overruled by Ornelas v. United States,
I
The chase began when Deputy Chris Fading drove down the driveway leading
Rather than chasing Smith into the woods, Kading radioed for backup and turned down the driveway to Johnson’s house, where he believed Smith might look for a place to hide. After about 250 yards, Kading reached a locked gate, where he waited until a second officer arrived. The two deputies planned to search for Smith on Johnson’s property before heading into the woods. They pushed in the hasp on the gate and continued more than fifty yards down the driveway to the front of the house. They knocked on Johnson’s front and back doors, but received no answer.
A perimeter fence encircled the buildings on Johnson’s property. Johnson’s home and backyard were surrounded by an interior fence, with the front door opening onto the rest of property. A kennel, surrounded by its own fence, was located about ninety feet from the house, and slightly farther, about 120 to 150 feet from the house, an old shed was built into the side of a hill. The deputies searched a covered area near the back of the house, walked around the outside of the home towards the kennel and looked inside two old vehicles parked nearby. Seeing no sign of Smith, the deputies headed towards the shed. Standing one to two feet in front of its door, Kading smelled the scent of marijuana wafting through a vent. After confirming that the shed was locked, the deputies left the property and continued their search for Smith. They later returned with other deputies and a warrant and discovered 771 marijuana plants in Johnson’s house, shed and kennel.
Before the district court, Johnson moved to exclude his garden from evidence on the ground that the search violated the Fourth Amendment. The government argued that the area around the shed fell outside the curtilage of Johnson’s home and presented evidence in support. Because the district court concluded the deputies were in hot pursuit of Smith, it did not decide whether the area around the shed was within the curtilage. The cоurt noted that “whether I sit here and figure it’s in the curtilage or out of the curtilage,” the deputies’ search was justified because it “in no way intruded on Mr. Johnson’s residence.” Nevertheless, the historical facts underlying the curtilage issue are in the record and undisputed.
II
The Fourth Amendment, as the Supreme Court has interpreted it, permits the police to search all over your land, so long as the officers don’t cross the boundaries of your home. As Justice Holmes observed, “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” Hester v. United States,
But the 'constitutional boundaries of the home are somewhat larger than the walls of the house; they include the “curtilage,” that “area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’ ” Id. at 180,
Although there is no mechanical way of determining whether a particular area falls within the curtilage, the Supreme Court, in United States v. Dunn,
Because the district court did not determine whether the shed fell within thе cur-tilage, it failed to conduct the required Dunn analysis. Our ability to review the curtilage question for ourselves depends on whether it is the kind of inquiry susceptible to determination in the first instance by an appellate court, or whether it is an “essentially factual” inquiry requiring us to defer to the district court’s judgment. See United States v. McConney,
III
A. In the past, we have joined other circuits in concluding that the Dunn test is factual, to be applied by the district court and reviewed only for clear error. See, e.g., United States v. Traynor,
We believe, however, that the Supreme Court’s recent decision in Ornelas,
However, the Supreme Court decided that such deferential review was inappropriate in Fourth Amendment cases. Although appellate courts must rely on the district courts to determine the historical facts undergirding the Fourth. Amendment inquiry, they need not give the same deference to the district court’s application of the legal standard to those facts. Independent review is necessary for appellate courts to ensure that the Fourth Amendment be applied consistently across cases. See id. at 697,
The considerations catalogued in Ornelas apply with equal force to the determination of where the curtilage ends. There is no conceptual difference between calling an area “curtilage” and telling an officer he had “probable cause” or “reasonable suspicion.” The curtilage question turns on “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.” Dunn,
We are the first of the circuits to consider the effect of Ornelas on the curtilage question. The Second Circuit has “assumed, without deciding, that Ornelas requires us to review the district court’s finding of curtilage de novo.” United States v. Reilly,
The Supreme Court’s own approach in Dunn supports our plenary review of the curtilage question. There, the Supreme Court held that the barn in question fell outside the curtilage even though the lower courts had not conducted (and of course, could not have conducted) the Dunn analysis. See Dunn,
B. A majority of the en banc court, after due consideration, holds that the determination of the curtilage must be reviewed de novo. According to Judge Ta-shima, however, this conclusion is merely dicta, because deciding the standard of review is not necessary to the disposition of this case. Judge Tashima advises litigants that the question we purport to answer remains unsettled, and that future panels are free to disagree without violating the law of the circuit.
Judge Tаshima’s concurrence raises a fundamental question concerning the development of our circuit law: To what extent is a later panel bound by statements of law contained in opinions of an earlier panel? Judge Tashima would hold that a later panel is free to ignore statements in an earlier opinion-even statements supported by reasoned analysis-if the later panel concludes that the earlier ruling is not necessary to the result reached. Judge Tashima is not the first member of our court to take this position. See, e.g., United States v. Enas,
The difficulty with Judge Tashima’s approach is that judges often disagree about what is and is not necessary to the resolution of a case. For example, the Enas panel dismissed a key portion of our earlier opinion in Means v. Northern Cheyenne Tribal Court,
Panels often confront cases raising multiple issues that could be dispositive, yet they find it appropriate to resolve several, in order to avoid repetition of errors on remand or provide guidance for future cases.
If later panels could dismiss the work product of earlier panels quite so easily, much of our circuit law would be put in doubt. No longer would the question be whether an issue was resolved by an earlier panel. Rather, lawyers advising their clients would have to guess whether a later panel will recognize a ruling that is directly on point as also having been necessary. We decline to introduce such uncertainty into the law of our circuit.
We follow, rather, the approach we have taken in deciding whether an issue is “necessarily decided” for purposes of collateral estoppel. As Chief Judge Schroeder explained in United States v. Weems,
Of course, not every statement of law in every opinion is binding on later panels. Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the panel’s full attention, it may be appropriate to re-visit the issue in a later case. However, any such reconsideration should be done cautiously and rarely-only where the later panel is convinced that the earlier panel did not make a deliberate decision to adopt the rule of law it announced.
A majority of the en banc court has concluded that the determination whether the search took place within the curtilage must be reviewed de novo. The issue was fairly presented to us and refined through the adversary process, and we have decided it after careful analysis, rather than through a casual, off-hand remark or a broad statement of principle. Under these circumstances, our court has undeniably decided the issue, see Weems,
IV
Because five members of our panel would affirm on the record before us, we proceed to examine the Dunn factors based upon the undisputed facts in the record:
1. Proximity. Because the curtilage is defined as the area adjoining and immediately associated with the home, proximity to the home is the first factor under Dunn. In Dunn, the Court noted that 180 feet was a “substantial distance supporting] no inference that the barn should be treated as an adjunct of the house.”
2. Enclosure. Because, in most cases, the curtilage will be clearly marked, Dunn requires us to examine the fences that demarcated portions of Johnson’s property. Johnson’s shed lies inside the perimeter fence encircling the buildings on his property, but outside an interior fence that includes only the house. Under Dunn, a perimeter fence surrounding a property does not designate the curtilage. See also Traynor,
In contrast to the perimeter fence, an interior fence that surrounds the home is a “significant” factor in determining the curtilage. Dunn,
3. Use. Dunn also requires us to consider whether the area in question was used or appeared to be used for the intimate activities associated with domestic life and the privacies of the home. Dunn was not entirely clear about whether use is determined by what the officers knew at the time of the search or how the homeowner himself actually used the area. The Court described the factor as “the nature of the uses to which the area is put,” suggesting that the relevant inquiry is the actual use the owner makes of the area. Dunn,
Following Dunn, we have emphasized both actual use and objective factors in determining the nature of the uses to which a structure is being put. We have looked at what an observer standing outside the structure could have known. See Brady,
The officers smelled the marijuana while standing in an open area outside the old shed. There is no evidence that Johnson used that area for any intimate household activities, nor that any outside observer would believe the area was so used. Because the officers did not enter the shed, we have no need to decide whether its interior fell within the curtilage. See Van Damme,
Johnson does not claim that he used the old shed for any activities other than growing marijuana. “The cultivation of crops, such as marijuana, is one of those activities that occur in ‘open fields,’ not an intimate activity of the home.” Van Damme,
Objective use is somewhat closer. In contrast to Dunn, the deputies had no prior information indicating that Johnson was growing marijuana in the shed or elsewhere on his property. They enterеd the property looking for Smith. At the same time, a shed is not generally known for housing the intimate activities of domestic life. And Deputy Fading testified that this particular shed was old, lay down a hill from the home and smelled of the marijuana growing inside it. These factors would allow the officers to conclude that the old shed was not considered to be part of the home. Thus, the objective evidence also tilts against finding that the area outside the shed was within the curti-lage.
4. Visibility. The fourth Dunn factor looks at the steps the homeowner has taken to prevent those standing in his open fields from viewing activity in the area alleged to be in the curtilage. In Dunn, the Court noted that the chainlink interior fences were used to corral livestock, rather than block visibility.
Taken alone, each Dunn factor weighs against finding that the area outside the old shed lay within the curtilage of Johnson’s property. Together, their weight is conclusive. The officers smelled the marijuana while standing in an open area at least 120 feet away from the house and outside the interior fence surrounding the home. The shed lay down a hill from the house, and indeed was hardly visible from Johnson’s residence. There were no domestic activities conducted in the area, and Johnson made no special effort to shield it from view. Our cases have established that where the police stand outside a nonresidential structure lying away from the house and smell the odor of drugs, they are generally not within the curtilage of the home. See Van Damme,
V
Based on the undisputed facts in the record, we conclude that the area outside the shed was not within the curtilage of Johnson’s home. It seems pointless to send this case back to the district judge, who will surely reach the same result. Accordingly, we would affirm.
Notes
. These included charges of driving under the influence, driving while his license was suspended, resisting arrest, malicious mischief, and criminal impersonation.
. The relevant testimony from Deputy Fading's direct examination follows:
Q: Where did you think he was going at that point?
A: I thought it seemed logical for him to run directly to his parents' house
What I do is I get in my patrol vehicle, and I drive down to the next road, the next accessible road which I believe may get me closer to him, and drive up the road and encounter a gate.
Q: Now, why did you go further west, which turns out to be Mr. Johnson's driveway? Why do you drive in that direction?
A: Because my gut feeling was he’s not going to double back and go up his mother’s driveway, because he’s thinking I’m thinking he's going to go to his mom’s house. I’m going to go down this direction I think he’s trying to get away from me going this way. I don't think he’s going to make a circle.
Q: But you had just said you thought he was going to his mother's house.
A: Right. Be he doesn't — my gut feeling was to go this direction.
. Johnson refers to this structure as a “mushroоm shed” because the previous owners had used the shed to grow mushrooms.
. This does not change our ruling in United States v. Chavez-Vernaza,
. The Supreme Court developed the exigent circumstances exception to the warrant requirement in Warden v. Hayden,
. We do not suggest that Officer Kading did not have a right to pursue Smith through the public streets after he resisted arrest. The question, rather, is whether the search can continue when it encroaches on a person's Fourth Amendment rights. Put differently, the question is whose interest should yield — a person's right to be free from warrantless intrusions or law enforcement's interest in apprehending a fleeing suspect. Cf. Brinegar,
. A majority of the en banc court holds that under Ornelas v. United States,
. The facts are described in greater detail in the original panel opinion. See United States v. Johnson,
. Relying on Ornelas, the Supreme Court recently recognized that de novo review is appropriate in other contexts that call for "the application of a constitutional standard to the
. We overrule the contrary statements in United States v. Furrow,
. The majority in Redmon did not reach the curtilage question. The Seventh Circuit, without discussion, has cited Ornelas for the proposition that the curtilage is to be reviewed for clear error. See United States v. Shanks,
. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137,
. See, e.g., United States v. Reid,
. Judge Tashima asserts that "[o]f course,” alternative holdings and dicta "are not the same,” but he doesn’t explain why. Tashima Concurrence at 4 n. 5. Under his rationale, which is that everything not necessary to the result is dicta, both alternative holdings are dicta because neither is necessary to the result. We can test this proposition by asking the question: Would the result change if either of the alternative holdings were removed? The answer, of course, is no. Since either could be removed without affecting the result, neither is necessary, and so under Judge Tashima’s reasoning, dicta. Of course, we do not argue that alternative holdings are dicta; to the contrary. But the fact that they are not, only shows the fallacy of Judge Tashi-ma’s approach.
. For instance, in Vera Cruz v. City of Escondido,
. Judge Tashima's attempt to distinguish these cases is not persuasive. He accepts that Oshatz read the law of the Second Circuit as including a statement unnecessary to the disposition of the case, but he contends that, since the rule involved trial procedure, it would only bind the district courts, and not later circuit panels. But would later panels of the Second Circuit be free to announce a rule of trial procedure contrary to that announced in Oshatz? Of course not; the law of the circuit binds all courts in the circuit, including later court of appeals panels. In order for the Second Circuit to give different guidance to its trial judges, it would have to go en banc.
Judge Tashima quotes only half the sentence in reading Crawley for the proposition that we may ignore dicta because "the passage was unnecessary to the outcome of the earlier case....” Tashima Op. at 921 (quoting Crawley,
. Judge Ferguson's suggestion that a chain-link fence provides the same expectation of privacy as a fence that blocks visibility is directly contrary to the Supreme Court's holding in Dunn, as well as common sense. See Ferguson Op. at 903. Judge Ferguson's concern for economic inequality doesn't change the fact that one can see through a chainlink fence, no matter whether a rich or poor man stands on the other side.
Concurrence Opinion
concurring:
I concur in all of Judge Ferguson’s opinion for the Court,
Judge Kozinski states: “Accordingly, we hold that the determination that a particular search did (or did not) occur within the curtilage must be reviewed de novo on appeal.”
Judge Kozinski’s musings about the standard of appellate review of curtilage determinations are dicta because the Court has not reviewed any curtilage determination.
Judge Kozinski does not contend that his standard of review pronouncements are not dicta according to any accepted definition of the term. He does not even attempt to argue that his statements regarding the standard of review for curtilage determinations are necessary to our decision in this case. They transparently are not. Instead, he disagrees with our Circuit’s definition of “dictum,” which reflects the centuries-long development of the common law.
Judge Kozinski’s reliance on the “necessarily decided” rule for invoking collateral estoppel, see. id. at 915, is equally flawed. Obviously, one of the primary preconditions for the invocation of collateral estoppel is that the issue was, in fact, decided in the prior proceeding. But applying the same test-whether an issue has “undeniably” been decided-to a legal issue to distinguish between dictum and a holding would, in fact, completely obliterate any distinction between dicta and holdings. A panel can “undeniably” decide any question of law, whether or not it is related to any issue in the case and whether or not it is necessary to the disposition of the case.
Finally, Judge Kozinski’s reliance on out-of-circuit authority is misplaced. United States v. Oshatz,
Judge Kozinski’s reliance on United States v. Crawley,
The fact that Judge Kozinski’s pronouncement is joined in by a majority of the en banc court does not affect this analysis. By definition, dictum is an unnecessary statement made by the majority; unless a statement is made by a majority, there is no need to engage in an analysis of whether that particular statement is dictum or a holding. Thus, while the en banc court has the authority to overrule the holding of a three judge panel, it can do so only in a holding necessary to the disposition of the case. If it were otherwise, the en banc court would be acting as a legislature and not as a court. Cf. Flast v. Cohen,
Because they are, in fact, dicta, subsequent panels are not bound either by Judge Kozinski’s self-proclaimed “holding” or by his purported “overruling” of our prior cases. As Judge Ferguson observes, we must “leave for another panel the question of resolving what standard of review this Court applies to curtilage determinations.” Op. for the Court at 901.
. Judge Ferguson’s opinion is the opinion of the Court because it is the opinion on which our mandate-our disposition of the case-is based. Nothing in Judge Kozinski's opinion, not even that part (Part III.A) joined in by five other members of the en banc court, affects our disposition of the case.
. In an accompanying footnote, Judge Kozin-ski purports to "overrule” our consistent line of cases, starting with United States v. Traynor,
. In fact, the district court did not make any curtilage determination at all. See op. for the Court at 898, 901; op. of Kozinski, J., at 911.
. Judge Kozinski has, however, agreed with the accepted definition of "dictum" in the recent past. See Vera Cruz v. City of Escondido,
. Judge Kozinski’s discussion of Calderon v. United States Dist. Court (Kelly),
. All of these definitions share a common theme: "a statement ... that could have been deleted without seriously impairing the analytical foundations of the holding;” "argument unnecessary to the decision;” "a remark ... concerning some rule ... that is not necessarily essential to the decision and lacks the authority of adjudication;” "a statement not ... necessary for its decision.” Crawley,
Concurrence Opinion
in Part II, concurring:
I.
I concur in Parts I, II, IIIA, IV and V of Judge Kozinski’s opinion. I join the holding that the United States Supreme Court’s decision in Ornelas v. United States,
II.
I respectfully decline to join Part IIIB. We have had no briefing, no argument, and no conference on the holding/dicta debate. For me, this debate itself is outside of Article III, which empowers us to decide cases and controversies. Here, we have a duty to decide the issues disputed between Johnson and the United States. The holding/dicta debate is interesting and might be beneficial in a law journal, which could recruit academics to comment further on the issues on which my eminent colleagues disagree. The debate might in
Concurrence Opinion
concurring:
I concur in all of Judge Ferguson’s opinion except for his conclusion in Part III.A. that we should not resolve the standard of review for curtilage determinations at this time.
I also concur in Part III.A. of Judge Kozinski’s opinion because I agree that the appropriate standard of review for curtilage determinations is de novo in light of Ornelas v. United States,