United States v. Michael Johnson

рosition of this panel case. The retains 1. REMAND the case the district jurisdiction over the case in the event of court for findings factual and conclu- any appeals. further on sions whether the shed was in an FERGUSON, Circuit Judge, with whom open part field or curtilage, of the Judge Chief SCHROEDER and Circuit matter developed by the district Judge join; PREGERSON Judge Circuit court. joins TASHIMA respect with to all of the 2. REVERSE the district court on the opinion a, b, c, except d; Part III.B and requirement, issue warrant Circuit Judge joins PAEZ with respect to question fully that was developed in all of the opinion except III.A; Part and by district court and the three- Judge Circuit joins BERZON with respect judge panel. to all of the opinion except for Part III.B and the final two sentences Part III.A: II.

I. In February Washington State In an attempt apprehend per- (“CPS”) another Child Protective Service asked son who suspect was misdemeanor Deputy last Kading Chris Skagit County seen minutes previously and Sheriffs whose Office to check on welfare of unknown, whereabouts were state sheriff living children Steven Dustin officers broke into Michael Johnson’s Smith’s Skagit residence rural County, fenced and yard locked residential Washington. his Deputy Kading ran a check rural Washington property without a war- on Smith and discovered Smith had moth- home of Smith’s driveway led to the misde- arrest warrants outstanding five Approximately step-father. er and offenses.1 meanor driveway lay the direction in the same feet Fading Deputy February On All of Johnson. Michael of Defendant and noticed residence drove Smith’s highway. were south these locations As home. his standing outside he was vehicle returned to his Fading Deputy driveway, into the Fading pulled Deputy As he drove pursuing Smith. began and Fading or- Deputy to run. began Smith he Smith leave saw highway, down Once he did. stop, which Smith dered into straight run south road and Deputy identity, Smith’s he confirmed approxi- Smith was point, At this woods. arrest under him that he Fading told to Defendant Michael mately halfway place him to turn ordered Fading driveway. Deputy Dep- According to his back. behind hands brush. him in the thick sight of lost quickly very agitated. Fading, Smith became uty con- testimony is somewhat Although his looking at his fists clenching began He apparently believed fusing, Fading unsuc- Fading gun. Deputy deputy’s between woods would remain Smith Smith calm attempted to cessfully mother’s Smith’s and residence Johnson’s no sudden made judo.” Smith “verbal house.2 turned Fading, but instead moves towards request- he up and road. When for back Fading down radioed off the to look long, his Fading sprayed down unit. He turned Fading, a canine to turned back ed felt, because, he driveway and back spray twisting followed pepper face with to a working. Smith he came until judo” was not into the woods yards the “verbal Trespass- eyes his a “No covered with gate and to his knees locked dropped 14-foot fence grabbed cyclone Fading high 5-foot Deputy sign. A ing” his hands. him, gate. but from the to handcuff directions attempted in both and Smith extended Fading driveway. running down began free and was broke This Smith for residence Smith highway. then returned the back, and waited spray, came pepper his place at took attempted arrest backup. gate by the locked Skagit South at 3090 park located trailer latеr, Deputy 15 minutes Approximately west 157 feet Approximately Highway. Fading drive to directed Rose was rocky steep John and highway, a down west, Q: Now, which go why you further did driving charges of under 1. These included driveway? Johnson's to be Mr. influence, was sus- turns out license driving his while mischief, arrest, you that direction? resisting Why malicious drive in pended, do go- feeling impersonation. gut was he’s my and criminal A: Because go up his mother’s ing back and to double Deputy Fad- testimony from relevant 2. The thinking I’m driveway, he’s because follows: ing's examination direct mom’s go to going to his he's thinking Q: going at you he was did think Where di- go this going to down I’m house. point? away get trying to I think he’s rection to run logical for him thought it seemed A: I way. think I don't going this from me parents' house directly to circle. going to make a he’s Q: thought was you he just you had said But vehicle, and my patrol get is I What I do house. going his mother's to road, acces- the next to the next drive down I feeling was my gut Right. he A: Be doesn't — get may closer me I believe road which sible go direction. to this him, up road and encounter drive and gate. to Smith’s mother’s house and wait there. feet of two the door of the mushroom later, Ten Deputy Sigman minutes met shed, Kading smelled what he knew from Kading gated at the entrance to Johnson’s training marijuana. was He tried open yard. deputies The three discussed the shed, the door to the padlock but plan situation and formulated a in which prevented him. At point, deputies Kading Sigman and would enter Johnson’s left Johnson’s property and drove to proceed and through the woods Smith’s They mother’s house. did not con- toward Smith’s mother’s house. tinue plannеd their woods, search in the and Smith never found. pursue Smith, order to officers get felt needed to through the locked A state search warrant was subsequent- gate. They open could not padlock; ly obtained based Kading’s Sig- instead, according Kading, there was man’s observations while on Johnson’s enough “play” in locking mechanism to property. February On the war- “manipulate” allow the officers to hasp rant was executed and marijuana gate gain entry while keeping plants 23, 1998, were recovered. April On padlock Once locked. inside the gate, was federally Johnson indicted on one up the officers drove driveway approxi- count of manufacturing marijuana in viola- mately yards and parked their vehicle tion of 21 841(a)(1), §§ U.S.C. a yard. On right side of the drive- 841(b)(1)(B). way was Johnson’s house. On the left side entering Prior to plea a conditional driveway, approximately yards guilty, Johnson filed a motion suppress, house, from the large was a dog kennel arguing that deputies violated the by a enclosed chain link fence. the Behind Fourth Amendment they when conducted dog kennel small “mushroom a warrantless search property. of his The shed.”3 The shed was about yards 40-50 district court judge held an evidentiary from the house. None of the residential hearing motion, and denied the basing her area had been visible from gate. the primarily ruling on the existence of “hot The first thing the officers did was pursuit” “exigent circumstances.” knock on the door of Johnson’s home to pled Johnson subsequently guilty to the if see he was in and alert him to their charges, filed preservеd but his ability to presence. they When answer, received no appeal the denial of his sup- motion to they began searching his property for press. First, Smith. they checked a pa- covered tio near the back of the residence to if see III. Smith was hiding Next, there.

checked the Although outer area of both the the parties kennel. The and the dis- peered officers then into trict two old court vehicles focused attention on the “exi- parked next to gent the kennel and looked un- circumstances” and “hot pursuit” der a tarp blue spread that was exceptions out near to the Fourth Amendment the cars. Finally, officers followed a requirement, warrant it also must be de- trail behind the kennel to the mushroom termined whether the fenced area around shed, which was locked with a pad- new the residence that was searched was sub- lock. When the officers were ject within one to Fourth protection. Amendment 3. Johnson refers this to structure as a “mush- grow used shed to mushrooms. room shed” previous because owners had

901 of standard review determining our fore A. re therefore case is This issue. for this protection Amendment Fourth court for a determi to the district manded to extends searches warrantless against United curtilage issue. of nation “Wheth home. one’s around curtilage (9th Furrow, v. States curtilage protected is within aner area Traynor, v. States Cir.2000); United inquiry” essentially factual anis a home Cir.1993). (9th 1153, 1156-57 F.2d United error. for clear review that we 499, 502 Soliz, F.3d v. States Dunn, v. United States In “as has Cir.1997). Circuit Second L.Ed.2d a review deciding,” that sumed, without directed (1987), Supreme Court was affected curtilage determination be curtilage should questions v. Ornelas holding in Court’s Supreme reference particular resolved 690, 699, 116 S.Ct. States, United area proximity factors: four (1996),that determi 1657, 134L.Ed.2d 911 home, curtilage to the claimed reasonable cause probable nations enclo- in an is included whether area subject to de novo should be suspicion home, nature surrounding the sure Reilly, F.3d review. put, the area is which the uses hand, Cir.1996). other (2d theOn 331, 331 protect by the steps taken resident cited explicitly has Circuit the Seventh by people observation area from curtilage proposition Ornelas by. passing to be reviewed determination is a factual can- factors that these standard. The Court stressed “clearly erroneous” under are Shanks, “mechanically but applied,” not be United States to deter- tools” analytical Cir.1996). merely “useful protected to be an area is mine regarding the case, facts sei- searches unconstitutional any determination issue and dis- by the position taken Id. The zures. as demon complex, very therein based should why this Court illustrates sent opinion in this by the discussions strated no questions curtilage determine type of what Regardless the dissent. court as the district guidance made, it is ultimately be must of review dissent, as by the findings factfinder. first make court to the district vital below, ele- essential miss demonstrated review can upon fact which findings of curtilage. of determination in the ments of the majority Because be based. dispositive reach the panel judges on B. violated the search agree that issue analysis undertaking the four-factor In we leave protections, Fourth Amendment Dunn, must court the district in outlined resolving of question panel the for another factors additional of two mindful applies be this Court of review what standard First, the govern- here. important are See United determinations. curtilage has the that it burden Llano, 1532, has conceded ment Crespo de 830 States show in case to proof this Cir.1987) of (9th (holding that dis 2n. 1542 of curtilage within was search review was over standard agreement Second, the Johnson residence. Johnson’s on the majority agreed dictum where surveillance under had been conclusion). property should The Court ultimate Inter-Local County Skagit members court the district in which a case wait for Unit, suspected who Enforcement Drug curtilage be- about findings explicit makes 902

that Johnson growing marijuana Cir.2000), on endorsed analysis property. point At no during their adopting a district finding court’s that 100 investigation did these officers enter the feet was within curtilage part based in gated yard, area inside Johnson’s which he on the “rural nature of premises.” curtilage contends is the prop- his rural

erty. b. Enclosure a. Proximity analyzes second factor whether the area is included within enclosure sur-

Generally, any “there is not fixed dis rounding homes, the home. “[F]or most tance at curtilage which ends.” United the boundaries of curtilage will be Depew, 1424, States v. 8 F.3d 1427 marked; Cir.1993). clearly conception defin- It must determined on a ing Dunn, case-by-case the area basis. around 301, 480 U.S. at —as home S.Ct. 1134. The to which activity Second and Third of home life Circuits have the importance noted extends —is a con familiar easily one under- sidering whether the area in question inis stood daily from our experience.” Dunn, rural, urban, or suburban setting. See 302, at U.S. 1134 (quoting Reilly, United States v. 1271, 1277, 76 F.3d States, Oliver v. 170, United 182, (2d Cir.1996) (con reh’g, 91 F.3d 331 n. 104 S.Ct. 80 L.Ed.2d 214 cerning a property); rural United States v. (1984)). conclusive, While not “fencing Acosta, (3d Cir.1992) configurations important factors in de- (concerning an property); urban see also termining Dunn, curtilage.” 480 U.S. at Seidel, 794 F.Supp. 301 n. 107 S.Ct. pieces rural (S.D.Fl.1992) (concerning a suburban here, property, as natural boundaries such property). These courts have reasoned as thick trees or may shrubberies also that the curtilage of a home a rural area indicate an area “to which the activity of could extend than farther the curtilage of a Dunn, home life extends.” home an urban or suburban setting. Oliver, 107 S.Ct. 1134 (quoting Reilly, 76 F.3d at (stating “on a 1735). U.S. at See, e.g., large parcel land, pond away 300 feet Reilly, 76 F.3d at (finding that hedge- from a dwelling may be intimately con rows and thick trees created a sufficient nected to the residence as is backyard enclosure to determine curtilage). grill door”). of the bloke next consists of over 12 The dissent not distinguish does be- acres of wooded land. Within the twelve- yard tween and a field in a rural area. plus acres, a relatively yard small is en- Calling a fenced-in area around rural by closed a five-foot high fence. This sec- “open home an field” does not make it so. tion house, encloses kennel, the dog the It yard, is still a even if larger somewhat and the mushroom shed. Although yards there than in urban arеas. The realities are some smaller within yard, of rural fences this country life dictate that distances none of the internal fencing between outbuildings segregates will greater the than on urban house from the shed. properties yard As this yet suburban encompass still activities surrounded intimately dense woods and associ- under- home; brush, ated the this is only the the nature of access to the mushroom the Recently Court, “farmstead.” this in shed is from driveway Johnson’s and resi- Furrow, United States v. 229 F.3d 817 dence. it free outbuilding may approach of an use

c. Use See, constraints. Amendment Fourth search, the offi their beginning to Prior 1426-1427; Cala at Depew, 8 F.3d e.g., that the data objective no possessed cers brese, F.2d at intimate for not used was shed mushroom home. Other with the associated activities Visibility d. the issue addressed that have circuits “objective must have that officers found the focuses on Dunn factor fourth The prior to the area the use about data” obser- prevent by Johnson steps taken City Daughenbaugh entry. See of Tif No passers-by. from the area vation of Cir.1998) (find 594, 599 F.3d fin, 150 is visible from area of the residential part when officers unreasonable ing search gate. Johnson from the highway or the that area knowledge objective prior lacked because precisely property purchased for used activities was searched area, and in a rural and secluded it was (2nd Cir. at F.3d home); Reilly, 76 constructing the for of his reasons one argu 1996) government’s (rejecting the Only neighbors. keep out fence “objective had data” the officers that ment (the pro- mаn and meter people two other outbuilding because use of about man) padlock. Un- keys to had pane marijuana smelled officers after circumstances, appears Johnson der these property); entered prevent every effort made to have Cir. F.2d Swepston, por- residential observing the from public (same). 1993) at Depew, 8 F.3d See property. his tion of Supreme Dunn, although the In curtilage where within (outbuilding both obtained information public relied on keep Court effort to made sincere Depew (aerial and after photographs) before property). viewing his acid) be the search (smell phenylacetic fact that suggests that dissent The “especially it found that emphasized gan, it visibility is did not block fences enforce the law that the fact significant” uncontro- inquiry. to this important “objective data” possessed ment officials however, officers, testimony of the verted was used question barn in underbrush woods indicated entering the drugs before manufacture visi- yard did block surrounding Johnson’s 302, 107 Dunn, at property. sowas Indeed, Smith why this bility. concurrence Scalia’s 1134. Justice Physical boundaries to follow. difficult opinion with majority in the joined Reilly, privacy. may protect one’s at Id. paragraph. exception at 1277; Daughenbaugh, F.3d (Scalia, J., concurring). Schroeder, at 442. 599; factor was only significant opinion, ex- logical its taken to position, dissent’s illegal being used the barn was considerably greater treme, place would matter it did not activity; who residents on rural economic burden entry. Id. to their prior knew officеrs find their to fence in wish determining the when requires that Dunn cost-effec- is the most chain-link fence rely, area, cannot the officers of an “use” interests, how- Privacy do way to so. tive case, exclusively on in this done as was of a on wealth depend the ever, not do the search learn after they information suspect. begins. determining to relevant law is also State lack- that an officer held have never We un- police activities of the of the reasonableness knowledge objective ing any prior 904 Hoy,

der the Fourth Amendment. Reed v. privacy reasonably supports, and the (9th Cir.1989) 324, 909 n. 5 330 (citing nature ‍‌​‌‌‌​​​‌‌‌​​‌‌​​‌​‌‌​​‌​‌​​​‌​‌​​​‌‌​‌​​​‌​​​‌​‍of the intrusion to answer the ul- Garner, 1, 15-16, Tennessee v. question: timate govern- Whether the 1694, (1985)).4 85 L.Ed.2d 1 ment’s intrusion a privacy violated in- Washington consistently courts have held terest which citizens of this state have its state constitution and laws are traditionally and justifiably held safe protective privacy more of than governmental federal from trespass absent a laws: warrant. presence long

[T]he history of Id. at 449. One of the officers who con- territorial and state laws prohibiting ducted the in this case testified as search trespass indicates that Washington kennel, shed, located near the places important emphasis person’s on a “if I would have been a private citizen right to exclude others from his or her driving up parked did, I where I’d private property, regardless of the size believe that the kennel would have been or developed state of that property. attached to that Despite residence.” the Johnson, fact that drug State v. 692, local Wash.App. enforcement had sus- (1994). pected P.2d “for some time” that The officers Johnson who was growing marijuana upon intruded on his property were lo- —and apparently cal performed and state officials fly-overs to had whom the Wash- the ington Constitution did not applies. feel at liberty state enter area — constitution, however, and investigate yard creates the heightened around his house. expectation privacy from intrusion (1) Based on the combination these officers. (2) rural setting, the fence around the shed, (3)

Under Washington Constitution, home and objective lack test is data government pointing illegal activity prior intruded upon entry, (4) “private inability defendant’s affairs.” see the shed Myrick, State v. “open fields,” Wash.2d 688 P.2d one could find that (1984). 154-55 the shed supra “so intimately was note 7. In tied to the Thorson, State v. home itself Wash.App. that it placed should under P.2d (1999), 448-50 home’s ‘umbrella’ of Washington Fourth Amend- Court of Appeals protection.”. Dunn, ment was asked to consider 480 U.S. at the legitimacy a search S.Ct. 1134. where officers on a rural strayed island from the proper IV.

ty for which they had a search warrant to another parcel. In holding that the search While the issue of curtilage in this violated the Washington pri Constitution’s unsettled, ease remains the district court vacy protection, the court focused on sub fully developed ruling its that the warrant- jective expectations of privacy and stated less search of Johnson’s property jus tified and not entitled to Fourth Amend

Myrick requires us to look to the na- protections. ment inquiry Our now is ture of the property, expectation of whether the officers’ warrantless search of change This does ruling our in United may effect state law subjective Chavez-Vernaza, States v. expectations of objective Johnson and the ex- (9th Cir.1987) that a state exclusionary rule pectations of the local regarding sheriffs will not trump application of federal law property. in a federal court. Our inquiry rather is into

905 issue, but shall violated, and no Warrants under justified property Johnson’s ). over 75 ...” For cause probable upon protec- Amendment Fourth Constitution’s stated that has Supreme Court years, the plants marijuana not, the If it is tions. and the “facts when exists probable cause be should search of that as result seized officer are suffi- before circumstances” tree. poisonous as fruit suppressed person a reasonable to warrant cient 471, States, 371 U.S. v. United Wong Sun sought the items to believe caution (1963). 407, 441 9 L.Ed.2d 487, 88 S.Ct. to be searched. place in the found will be war- validity of a novo the de review We States, 338 U.S. v. United Brinegar v. Van States United search. rantless 1302, L.Ed. 1879 175-76, 93 160, 69 S.Ct. Cir.1996). (9th 285, 290 F.3d Poyck, 77 States, 267 U.S. (1949); v. United Carroll Fourth principle a ‘basic “It is (1925). 280, 162, 69 L.Ed. 543 132, 45 S.Ct. sei and searches law’ that Amendment emphasized that has Supreme The Court are a warrant home without zures inside “speci- factual “demands” cause probable v. Payton unreasonable.” presumptively according to judged “must be ficity” and 586, 573, S.Ct. York, 100 445 U.S. New at Terry, 392 U.S. objective standard.” an (1980). pre The 639 1371, 63 L.Ed.2d “Anything less 18, S.Ct. 1868. 21-22 n. be over can unreasonableness sumption of upon constitutional- invite intrusions would cоnfront however, police come, when nothing on rights based ly guaranteed fleeing fel like circumstance exigent an hunches, a result inarticulate more than 740, Wisconsin, 466 U.S. v. See Welsh on. consistently refused has this Court 2091, 80 L.Ed.2d 749-50, S.Ct. (em- S.Ct. Id. sanction.” situations, exigent (1984). these added). phasis the obli police of reheves the circumstance testimony, Officer own By his v. Murdock obtaining a warrant. gation to Johnson’s Hading led Cir.1995). (9th Stout, feeling” that Smith “gut more than no not, howev does circumstance exigent Court, how Supreme be there. would to have of the need er, pohce reheve that “hunches” ever, it clear has made As a Id. search. for the probable cause suspi reasonable to establish insufficient on rehes result, government when Illinois cause. See cion, probable let alone it still exception, exigent circumstances 123-24, Wardlow, 528 U.S. v. first, the requirements: two satisfy must (2000) (stating 145 L.Ed.2d officer prove must government is “less which suspicion, that reasonable house; search cause to probable had cause,” requires probable than demanding prove must second, government “un more than to articulate an officer justified circumstances exigent ”); Ter ‘hunch’ suspicion particularized States United intrusion. warrantless 1868, 20 Ohio, ry v. Cir.1991). 1434, 1441 Lai, 944 F.2d (same); (1968) L.Ed.2d 889 us, govern record before Based Cir.1987) Kerr, requirement. satisfy either failed ment Terry stop, for a that even (emphasizing constitu withstand will not “hunches alone A. scrutiny”). tional concept. hardly a new cause Probable single provide not Hading did (“The right Officer IV CONST. amend. See U.S. or es- his hunch support objective fact persons, in their to bе secure people cause probable provided effects, tablish unrea against houses, papers, At the yard. around rummage seizures, shall searches sonable suppression hearing, Moreover, Officer Kading testi- we are at a loss as why, fied that initially thought he that it given us, was the facts before Officer Kading “logical” that Smith would turn left his reached decision to search Johnson’s (southeast) in the woods and head directly property at all. Kading Officer was chas- parent’s toward his house. ing car; He was so Smith in his likely it seems that prediction confident of this that when he once Smith ran into the woods he would backup, radioed for responding he told the avoid areas where cars Ap- could travel. proceed officers to parent’s to Smith’s parently, exactly this is happened. what afterward, however, house. Soon all, he had After this was a sparsely populated thoughts. second He stated that he tried rural area. The terrain hilly and was cov- get inside of Smith’s head and outsmart ered with thick brush and trees. John- speculated him. He if Smith thought son’s alone consisted of over 12 that the go would parent’s officers acres and neighboring lots were a simi- house, Smith opposite would do the and lar size. Once Smith got into the woods (southwest). run toward Johnson’s house Kading him, Officer sight lost When asked how he came to this conclu- options Smith’s were unlimited. He could sion, Kading Officer admitted it that was have run east toward his property; own he just “gut feeling.” could have run past southwest Johnson’s property; he stayed could in have objective We find no facts in the record woods highway and used it as a support Kading’s “gut Officer feeling.” post; lookout or he could have watched example, For Kading Officer does not Kading drive down driveway Johnson’s claim that footprints he leading saw to- and then run north across the street into ward property, Johnson’s heard sounds the woods on the other side of high- coming from property, or ob- way. shelter, If he had wanted Smith served broken branches on the trees lead- could sought parent’s shelter on his ing toward Johnson’s property. only property, his own property, some other thing that Kading Officer knew neighbor’s property, or out the woods. earlier, half hour Smith had run into the halfway woods between Johnson’s drive- facts are analogous These to those in way driveway and Smith’s and that Winsor, Smith’s United States v. 816 F.2d 1394 mother lived nearby, opposite Cir.1987), di- vacated grounds, on other rection Johnson’s house. Cir.1988) (en banc). 846 F.2d 1569 Winsor, police followed a bank robber That is objective the extent of the facts. ” to a two-story “small ‘residential hotel’ None of any these facts make more and watched him “disappear” into the likely that hiding Smith was on Johnson’s building. Id. at 1395-96. police went property rather than some other loca- room to room and demanded that the occu- tion in surrounding area. Police offi- pants open their doors. Id. at 1396. The cers do not probable obtain cause to con- police eventually found person they duct a search place in one based on the looking were for. Id. lack probable cause to search another place. They probable obtain cause be- rejected On appeal, we government’s cause the they facts indicate argument will find pursuit” the “hot exception what looking place for in the justified to be the warrantless search. We stat- searched. Terry, hotel, ed that inside a enjoys room each its S.Ct. 1868. such No facts exist in this protection own zone from unreasonable case. searches seizures. Id. at 1397. Based

907 probable of amount “[N]o cause. probable although the that held principle, this on search enter the a warrantless justify can cause cause probable police had cause probable circumstances.’” hotel, ‘exigent did not they absent seizure Id. room. particular any 128, n. search 137 496 U.S. California, v. Horton (1990). 112 2301, L.Ed.2d 7, 110 S.Ct. per 110 argues this case in Appellant The Riverside, County hotel v. that, also LaLonde the individual like suasively of Cir.2000). in Winsor, the homes the The 947, of all 954 rooms in a enjoyed saw Smith police the cir- exigent area where the that suggests Government not invade they could that privacy of zone Kading Deputy prevented cumstances fact, In Johnson cause. probable without war- a search to secure attempting In Win stronger case. an even presents of pursuit” deputy’s the “hot rant was 1395-96, at least police the sor, at F.2d 816 otherwise. We hold Smith. in was somewhere suspect knew that in which hotel; just not know did exception to pursuit hot The contrast, in this By hiding. he was room of only applies when requirement warrant is last seen was case, where Smith аrea “continuous” in and are “immediate” ficers with thick covered and populated sparsely scene suspect from the of a pursuit alone property Johnson’s trees. brush 753, 104 Welsh, at S.Ct. 466 U.S. crime. adjoining and the 12 acres over contains Salvador, 740 2091; v. United is at seen was last Smith where (9th Cir.1984), cert. denied 752, n. 5 758 poten hiding places The big. least as 978, L.Ed.2d 105 S.Ct. 469 U.S. given true especially This is tially endless. addition, time critical (1985). In familiar with very probably that Smith exigency ex any determining whether Furthermore, for in area. this the terrain makes man; the officer Smith the moment caught their ists is in Winsor police rely on They cannot entry. large. at warrantless remains they are inside. once exigencies discovered transform way to no simply There Lindsey, 877 F.2d States v. “proba- feeling” into “gut Kading’s Officer Cir.1989).5 has clear- Supreme Court ble cause.” feelings inarticulable gut ly stated case, it is on record Based suspi- equal reasonable do “hunches” pursuit Smith the officers’ clear Wardlow, cion, probable cause. alone let Kad- Officer After “continuous.” was not 673; Terry, 123-24, 120 S.Ct. at 528 U.S. woods, he sight Smith- ing lost Based 1868. S.Ct. 392 U.S. backup to arrive. hour for half waited we hold precedent, this well-established time, to Smith’s he returned During this exist here. did not probable cause spray pepper and retrieved residence con- during

B. lost had that he canister officers When with Smith. frontation altered not be would decision Our had no property, one entered to show able were if the Government even 38, 42-43, 49 L.Ed.2d exigent developed Supreme Court pursuit "hot (1976), wrote that it re- where warrant exception to circumstances chase, but it need not Hayden, aof some sort quirement in Warden means (1967), cry and about 18 L.Ed.2d hue an extended fleeing search where warrantless upheld the context where public streets.” made that the situation exigencies "the these between any distinctions fine suspect, the "hot expanded on It imperative.” course immaterial. doctrines is two Santana, exigency in United States pursuit" seen sumed, Smith for over a hour. half Unless the officers no longer any had idea the “continuity” requirement where Smith was. stretched beyond recognition, the facts of this case circumstances, Under these the continui- simply are not covered pur- the “hot ty clearly chase was broken and a suit” doctrine. The period, half-hour time required. warrant was Although this re- during which the officers received quirement no new may be inconvenient to law en- forcement, information any about where Smith gone, had other outcome renders the concept of pursuit” “hot pursuit meaningless turned the from lukewarm to ice police allows the to conduct warrantless cold. searches while a investigating suspect’s respect While we Deputy Kading’s con- whereabouts. safety cern for his had he followed Smith also find Supreme We instructive the woods, into the it does not change the fact holding Wisconsin, Court’s in Welsh v. that Johnson had not been seen or heard 740, 750, 2091, 104 S.Ct. 80 L.Ed.2d for at least 30 minutes after disappearing (1984), important “an factor to be into the woods. This is not a case where considered when determining whether any police the always officers knew exаctly exigency,exists gravity the is of the under- suspect was, where the but decided it lying offense for which the arrest is being would dangerous be for them to the enter made.” Id. at 104 S.Ct. 2091. Al- property until reinforcements arrive. though the Court did not bright draw a Cf. Lindsey, 877 F.2d at 779 (noting that line when between misdemeanors, felonies and it arrived, backup favorably officers saw cited a suspect the number of cases that permit refused to through house). the warrantless window of entries of Under the home for “nonfelonious crimes.” Id. at circumstances, such the “continuity” of the 752, 104 S.Ct. 2091. cases, Based on these chase delayed, is but not broken. See the Court “application found that v. Lindsay, exigent circumstances exception (D.C.Cir.1974) (stating that “[s]peed context of a entry home rarely should knowledge continuous alleged sanctioned when there probable cause to perpetrator’s whereabouts are ele- believe a only minor offense ... has ments underpin which exception this to the been committed.” Id. at 104 S.Ct. warrant requirement”). 2091. In case, however, the continuity Smith was only wanted for misdemeanor the chase was terminated permanently. offenses. Even his unlawful conduct that Smith did run not a into confined area gave chase, i.e., rise to the initial resisting where Kading Officer could monitor his arrest, is a misdemeanor Washing- under movements while waiting backup to ton law. See § Wash. Rev.Code 9A.76.040. arrive. Smith ran into wooded area Although this does definitely preclude where he was free to run for over a half a finding of exigent circumstances, hour. Once alleged “pursuit” re- weighs hеavily against it.6 6. We suggest do not Kading that Officer person's did right to be free from warrantless right not have a pursue through Smith intrusions or law enforcement's interest in public streets after he resisted arrest. The apprehending fleeing suspect. Brinegar, Cf. rather, question, is whether the search can U.S. at 69 S.Ct. situations continue when it person's encroaches on a truly where an pursuit officer is in hot Fourth rights. Amendment differently, Put underlying felony, offense is the Fourth question is whose yield interest should usually yields. Amendment See United States —a 9 L.Ed.2d to this case another element Adding (1963). on the encroached the officers fact that not create did person who of a V. com- and was circumstances exigent and his suspect unrelated pletely probable cause without The search was Here, who it was Smith misdemeanors. circumstances exigent and not within he re- when exigency alleged Fourth exceptions to the pursuit created or hot however, officers, per- Ac- requirement. arrest. The warrant Amendment sisted proper- probable cordingly, search we REVERSE on formed warrantless (Johnson). on the curti- REMAND issues and home cause neighbor’s ty of Smith’s consis- proceedings for further lage issue situa- involvement the lack of Johnson’s opinion. tent with is another exigency the created tion the reasonableness weighing against factor KOZINSKI, Judge, with whom Circuit entry. the warrantless NELSON, TROTT, Judges T.G. Circuit is considered ‍‌​‌‌‌​​​‌‌‌​​‌‌​​‌​‌‌​​‌​‌​​​‌​‌​​​‌‌​‌​​​‌​​​‌​‍this cases have Very few Judge join, Circuit SILVERMAN the Organization joins respects In National with sue. M. GOULD RONALD for Mullen, IV, 796 II, v. Marijuana I, Laws III.A and and Circuit Parts Reform Part (9th Cir.1986), joins a Judge respect we confronted with PAEZ 276 officers, in III.A:1 drug enforcement where case marijuana a local attempt to eradicate

an was not majority holds that search A the warrantless searches industry, conducted exception by pursuit the hot justified upheld the We properties. neighbor’s Amendment, only need but we the Fourth base “to court’s determination district if intruded exception the search reach that a neighbor’s a cause for search probable by the amendment. protected on area fact that regarded the mere curtilage precedents prior home or Although our con- question, from might curtilage be visible as a factual marijuana garden the that those clude, majority, the a different meaningless render property is to v. by Ornelas overruled been the cases have Org. Nat’l amendment.” fourth 690, States, 116 S.Ct. Mullen, United v. Marijuana Laws Reform of (1996). his- As the L.Ed.2d 911 (N.D.Cal.1985). Similar F.Supp. may con- undisputed, we torical facts the Fourth under ly, rights the shed area the outside sider be simply waived cannot Amendment home curtilage of Johnson’s the fell within hoping to catch were cause the officers Amendment. Fourth under the property. his glimpse of Smith on I course, subsequent warrant Of Deputy Chris when began The chase does validate invalid search after the driveway leading States, Fading down drove Wong v. United Sun the search. court holds 42-43, en banc majority of the Santana, 1. A 427 U.S. States, 517 U.S. However, (1976). under Ornelas situa- 49 L.Ed.2d (1996), the 134 L.Ed.2d only S.Ct. underlying offense where tions re- curtilage must be misdemeanor, yield to determination must enforcement law and we overrule appeal, de novo on viewed the "rarest” in all but Fourth Amendment Thus, contrary. Part past cases to Welsh, our cases. Court. opinion of III.A reflects marijuana Steven Dustin Smith’s trailer.2 On of wafting through a vent. Af- car, spotting police Smith must have confirming locked, ter that the shed was guessed that the visit concerned his out- deputies left the and contin- standing arrest warrants he start- because ued their search They for Smith. later away. ed to run struggle After a brief returned deputies with other and war- deputy, wriggled Smith out of his rant and marijuana plants discovered 771 jacket and took off high- down rural house, in Johnson’s shed and kennel. way, heading halfway west. About be- court, Before district Johnson moved homestead, tween his trailer and Johnson’s to exclude garden on the evidence ran south off Smith the road and into a ground that the search violated the Fourth heavily wooded area. Amendment. The government argued than chasing Rather into Smith that the area around the shed fell outside woods, Kading radioed for backup and pre- Johnson’s home and driveway turned down the to Johnson’s sented evidence in support. Because the house, where he might believed Smith look district court deputies concluded the were for a to hide. After place yards, about 250 pursuit Smith, in hot it did not decide Kading gate, reached a locked where he whether area the around the shed was waited until a second officer arrived. The curtilage. within the The court noted that deputies planned two to search for Smith “whether figure I sit here and it’s in the on heading Johnson’s before into curtilage or curtilage,” out of the depu- the Thеy the pushed hasp woods. in the on justified ties’ search was because it “in no the and continued gate fifty than more way intruded on Mr. Johnson’s residence.” yards driveway down the to the front of Nevertheless, the historical underly- facts They the house. knocked on Johnson’s ing the issue are in the record doors, front and back but received no an- and undisputed. swer. A perimeter fence encircled the build- II ings on property. Johnson’s Amendment, The Fourth Su the backyard home and by were surrounded preme it, Court interpreted has fence, permits an interior with open- the door front police land, the to search your all over ing so property. kennel, onto the rest of A long as the officers don’t by fence, cross the bound surrounded its own was located your aries of ninety house, about home. As Justice feet from Holmes the and observed, farther, special slightly protection “[T]he about 120 to accord 150 feet from house, the ed the Fourth peo an old shed Amendment to was built into the ple houses, in ‘persons, side a hill. their deputies papers, searched a effects,’ house, covered area near the is not open back of the extended to the fields.” States, Hester v. walked around United 59, the outside 57, of the home 265 U.S. (1924) towards the kennel and looked inside two L.Ed. 898 (quoting IV). old parked nearby. vehicles Seeing U.S. Const. amend. no The rationale sign Smith, deputies for this just headed towards in distinction lies not the text Standing shed. one Amendment, to two feet in of the in provision’s but door, front of its Kading emphasis smelled the scent preserving privacy. on Within 2000), 2. The greater facts are described in detail reh'g granted, vacated en banc original panel opinion. See United Cir.2000). States F.3d 1169 Johnson, 541-43 Cir. Court, in Supreme curtilage, the within the free from homes, to be expect we our Dunn, 480 U.S. and surveillance. interference government (1987), 94 L.Ed.2d States, v. United Oliver courts should four factors that 214 identified L.Ed.2d 178-79, 104 S.Ct. (1) addressing question: expectation consider (1984). lack a similar But we (2) home; area to the proximity of the Al- property. of our open fields in the included within an the area is ex- whether right to us the gives law though the (3) home; surrounding the our enclosure trespassing from others clude put; the area is of the uses to which to avoid nature privilege fields, no similar we have (4) by the resident to steps front taken in our eyes while walk prying by peo- area observation protect the from has read the Supreme Court yard. yield factors do not ple passing by. These these incorporate Amendment Fourth answer; they guide rather inti- a definite by protecting the notions traditional determining whether the area courts home, protec- no providing macy but home it intimately open so connected in the searching police tion of the fall under the umbrella should home. outside the fields protections. See id. Amendment’s Fourth of the boundaries 'constitutional But court did deter- Because the district the walls than larger home are somewhat the cur- shed fell within mine whether the “curtilage,” house; they include required failed conduct the tilage, intimate to which extends that “area ability to analysis. Our review a Dunn ‘sanctity of activity assoсiated ” depends for ourselves curtilage question Id. of life.’ privacies and the home man’s suscep- inquiry kind of it is the Boyd v. on whether 180, (quoting 1735 104 S.Ct. at in first instance 616, 630, to determination States, 6 S.Ct. tible 116 U.S. United court, it an or whether is (1886)). appellate by an concept The 524, 746 29 L.Ed. requiring us to law, “essentially inquiry factual” which common out of the arises judgment. See district court’s defer to the “castle of home as his a man’s viewed 1195, McConney, 728 F.2d Blackstone, v. States Commen- United 4 William defence.” Cir.1984) (en banc); also see 1203 curtilage included *225. taries 1061, 210 F.3d Depew, v. States walls, those tur- United also castle but only the Cir.2000) (remanding to the dis- 1067 adjoined the rets, baileys that moats and of the curti- for court determination the owner trict and whose breach residence latter, issue). we then If it is the security lage regard as violation would so court time, to the district must remand the same id. At home. See of the like, determination. warehouse, may make initial barn, “no distant Id. privileges.” When the same are under III homes, in- might we modern

we consider ga- adjoining an curtilage clude within joined other past, In A. picket the white yard-within rage, Dunn concluding that the test circuits keep kids fence, where the gazebo or the district factual, applied by the court to be question is toys. The real pool their See, error. for clear only and reviewed reasonably might home owner whether F.2d Traynor, 990 v. e.g., States United parcel part and those structures as regard (9th Cir.1993); 1153, United 1156-57 home itself. (2d 1271, 1275 Reilly, F.3d v. 76 States Friend, 50 Cir.1996); United way of is no Although there mechanical (8th Cir.1995), 548, vacated area falls particular determining whether 1152, grounds, other 517 U.S. facts undergirding the Fourth. Amend- 1538, (1996); 134 L.Ed.2d inquiry, they ment give need not the same (3d Benish, 20, States v. 5 F.3d Cir. deference to the applica- district court’s Hatch, 1993); 931 F.2d United States legal tion of the standard to those facts. (11th Cir.1991). Traynor, In Independent necessary review is ap- though we reasoned that even the curti- pellate courts to ensure that the Fourth lage may question be viewed as a mixed applied Amendment consistently across fact, one of law and the Dunn test was cases. See id. at 1657. If S.Ct. appropriate because boundaries de appellate courts reviewed such determina- pended heavily on the factual circum error, tions for clear then identical factual stances of each case. See 990 F.2d at circumstances could lead to different re- 1156-57; Depew, see also United States v. depending upon predilections sults (9th Cir.1993) (“Every Likewise, each district judge. law en- curtilage determination is distinctive and forcement officers would lack the “set of stands or on its unique falls own set of which, instances, rules in most makes it facts.”). possible to reach a correct determination beforehand as to invasion of believe, however,

We that the Su privacy justified in the interest of law preme Ornelas, Court’s recent decision in Ornelas, enforcement.” 697- 134 L.Ed.2d (internal 116 S.Ct. 1657 requires quotation us to reconsider our view of omitted). marks curtilage who decides the and citations issue. Orne las, the Court concluded that ques mixed catalogued

tions of law and fact under considerations the Fourth subject apply Amendment Ornelas plenary equal review force to the de by appellate courts. The Court acknowl termination of where ends. edged deciding the appropriate stan conceptual There is no difference between dard of review such instances poses calling an “curtilage” area and telling an difficulty. some Legal standards such as “probable officer he had cause” or “reason “probable cause” and suspi “reasonable suspicion.” able The curtilage question cion” usefully cannot be reduced to clear turns on “whether the area in question is rules, legal they and so draw their content so intimately tied to the home itself that it entirely application their to concrete should placed under the home’s ‘um 695-96, cases. See id. at 116 S.Ct. 1657. brella’ of Fourth protection.” Amendment Because such Fourth ques Amendment Dunn, at U.S. 107 S.Ct. 1134. depend tions upon particular factual con question The of whether an area should be text, (as some circuits had concluded we protected by the Fourth Amendment issue) had with respect to the curtilage ultimately a depends factual one. It upon they must defer to the judgments of government’s whether the intrusion in the the district courts. area “infringes upon personal the and so

However, Supreme the protected Court cietal values decided the Fourth that such Oliver, deferential inappro- review was Amendment.” 182-83, at U.S. priate in Fourth Amendment cases. Al- 104 In making S.Ct. 1735. that determina though appellate tion, rely courts must on the a court apply legal must value district courts to determine the historical judgment to the facts of each case.3 Ornelas, Relying on Supreme propriate Court re- in other contexts that call for "the cently recognized that ap- application de novo review is of a constitutional standard to the has “as Circuit question. The Second to re- officers law enforcement

If sumed, of re rights deciding, Ornelas Amendment without Fourth spect serve, have they must the district court’s quires us to review the citizens any that transcends guidance of the kind de novo.” United finding curtilage of The particular case. (2d of a judge’s view one Cir. Reilly, 91 F.3d States v. any obviously resolve must courts district 1996). Likewise, prominent Seventh un- facts the historical over controversies “in light judge has concluded Circuit factors, appellate Dunn derlying the Ornelas, curtilage] question is a [the of for such determinations review courts will novo, de without that we are decide application But the clear error. court.” United deferring to district kind of issue is not the the facts law to Redmon, 1109, 1132 F.3d States v. the dis- province within the peculiarly Cir.1998) (en banc) C.J., (Posner, dissent Indeed, curtilage questions trict courts. (citation omitted).5 The Wisconsin ing) to review courts appellate are easier Supreme has also read Ornelas Court probable than are determinations reviewing court determine requiring lay- depends on curtilage cause. Martwick, novo. State v. the issue de See to which the uses out of the 604 N.W.2d 231 Wis.2d considerably that are put, factors (2000). that has No court considered drawn the inferences objective than more contrary. hаs ruled to the Ornelas under- experience which from an officer’s approach in Supreme own Court’s probable cause. lie the determination Ornelas, plenary review supports 116 S.Ct. Dunn our 517 U.S. at There, Supreme plenary re- curtilage question. (recognizing even some def- requires question cause fell probable held that the barn view of Court police). of local expertise though the low- curtilage erence even outside the determina- (and course, hold that Accordingly, we er courts had not conducted (or did search did particular that a conducted) tion analy- the Dunn could not not) curtilage must be within occur Dunn, sis. See appeal.4 de novo on reviewed believed that curti- 1134. If the Court on-the-spot required lage determination circuits to consid- first of the are the We court, it could by the district judgment effect of Ornelas er the Cir.1993). Because case," 1156-57 as whether particular such of a facts ultimately the case remands court’s determina en banc court of the district the review damage award is punitive the search of whether of whether tion for a determination Cooper constitutionally Indus. excessive. curtilage, we retain place within took — —, Group, 121 Tool Leatherman appeals. any subsequent jurisdiction over (internal (2001) 1678, 149 L.Ed.2d 674 omitted). con If the Court quotation marks did not reach majority in Redmon 5. Fourth applies Ornelas outside cludes Circuit, Seventh curtilage question. The context, seem it would a fortiori Amendment discussion, cited Ornelas for has without analogous within determinations to apply curtilage is to re proposition that Amendment framework. the Fourth v. See United for clear error. viewed 977, (1996). Shanks, We can’t 97 F.3d 979 contrary in statements 4. overrule We panel in the Sev subsequent say 805, Furrow, 816 229 F.3d States v. citation the unreasoned Circuit will treat enth Soliz, Cir.2000); (9th 129 v. United States question. To extent having settled as Cir.1997); (9th United States v. F.3d , re that Ornelas judgment Cir.1993); it does reflect (9th Depew, curtilage for clear to be reviewed quires the Brady, 993 F.2d States v. United Cir.1993); error, disagree. respectfully Traynor, we and United States hold, approach. instead, case for have remanded the consideration We Instead, the Court relied on the below. panel germane where a confronts an issue in undisputed facts the record and deter- ease, to the eventual resolution of the question mined the for itself. resolves it after reasoned consideration in published opinion, that ruling becomes court, majority B. A of the en banc circuit, regardless the law of the of wheth- consideration, after due holds the de- doing er so in necessary some strict termination of the must be re- logical sense. According Judge viewed de novo. Ta- shima, however, merely this conclusion is difficulty Judge ap- Tashima’s dicta, deciding because the standard of proach judges disagree is that often about necessary disposition review is not necessary what is and is not to the resolu- Judge of this case. Tashima liti- advises example, tion of a case. For the Enas gants question purport that the we to an- panel key portion dismissed a of our earli- unsettled, swer remains and that futurе opinion er Cheyenne Means v. Northern panels disagree are free without violat- Court, (9th Cir.1998), Tribal 154 F.3d 941 ing the law of the circuit. dicta, as because did not believe the Judge Tashima’s concurrence raises a necessary discussion was to the result in question fundamental concerning the de- Enas, Means. See 204 F.3d at 920. But velopment of our circuit law: To what judges thought Means must have panel extent is a later bound state- they ruling were on an issue that was ments of law in opinions contained of an necessary, they else would not have includ- panel? Judge earlier Tashima would hold Indeed, it in opinion. ed their a member panel ignore that a later is free to state- panel separately of the Means wrote opinion-even ments an earlier state- very issue-something that would have supported by ments analysis-if reasoned wholly been superfluous if the ma- Means panel the later concludes that the earlier jority merely had ruminating. been ruling necessary is not to the result raising Panels often confront cases ‍‌​‌‌‌​​​‌‌‌​​‌‌​​‌​‌‌​​‌​‌​​​‌​‌​​​‌‌​‌​​​‌​​​‌​‍mul- Judge reached. Tashima is not the first tiple dispositive, issues that could be yet position. member of our court to take this See, they several, it appropriate find Enas, resolve e.g., United States v. 204 F.3d (9th Cir.2000) repetition in order to avoid errors on (dismissing the le- gal analysis provide guidance remand or panel earlier for future “not Or, decision”), necessary panels to the court’s cases.6 reh’g occasionally en will find it (9th Cir.2000). granted, banc 219 F.3d appropriate to offer alternative rationales explained below, For the reject reasons we for the Judge results reach.7 Tashi- See, Madison, (1 e.g., Marbury Weems, 6. government may retry Cranch) (1803) (Marbury 2 L.Ed. 60 has also address Weems' contention that the dis- right remedy, Supreme and a but the U.S. evidence....”). admitting trict court erred in jurisdiction); Court lacks United States v. Val See, Reid, e.g., United States v. 226 F.3d lejo, Cir.2001) 1026 n. 9 (9th Cir.2000) J.) (Pregerson, (recognizing "independent grounds four (consent to search was invalid because the trial); remanding reversal” and for a new party authority lacked the to consent and the Association Mexican-American Educators v. of 572, involuntary); California, (9th consent was Cir.2000) United States v. 231 F.3d 579 Adams, 681, (en (9th banc) Cir.1971) 446 F.2d (ruling 684 on whether Title VI and VII (court err, alternative, apply though even did not the issues were in the unneces sary case); harmless). disposition happens partic- to the of error was This in Weems, (9th prongs States v. 49 F.3d ular analysis Cir. where both are 1995) (Schroeder, J.) ("Because See, Hill, e.g., we conclude doubtful. Kleve v. 243 F.3d ‘necessarily’ must have been termination v. United in Calderon as much ma did (and in first ‘presumably’) decided (Kelly), 163 F.3d not Court District noted, Cir.1998) (en banc), “necessarily,” she (9th proceeding.” hold But 530, 542 undeniably court de- only of limitations means that the statute that AEDPA’s ing issue, petition was not that it was unavoidable a habeas cided the apply because didn’t and, of one disagreement was enacted it so. the statute for do Over filed before J., tolling (Norris, alternative, equitable colleagues, because see id. at in the our view, Tashima’s Judge concurring), Under held where applied. Weems necessary to the rationale would be argument neither court heard evidence ignore outcome, panels could and future ruled on the parties, specifically both issue, escape ruling’s as dicta.8 party may both a not that it was binding ground on the effect the work panels could dismiss If later ulti- to the court’s logically not essential easily, quite so panels product of earlier id. at 532. mate determination. See in put law would be of our circuit much be question would the longer No doubt. course, every statement of law Of not by an earli- was resolved an issue whether binding panels. on later every opinion is Rather, their lawyers advising panel. er is made it is clear that statement Where a later guess whether would have clients analysis, where the casually and without ruling that is direct- recognize a panel will passing without is uttered statement necessary. having been point as also ly on alternatives, consideration of due uncertainty introduce such decline to We prelude to another merely it is where circuit. law of our into the full panel’s legal issue that commands attention, may appropriate to re-visit it rather, have follow, approach we We However, any case. issue in a later is “nec deciding whether issue taken be done cau- should such reconsideration collateral purposes for essarily decided” the later rarely-only where tiously and Judge ex As Schroeder estoppel. Chief panel that the earlier Weems, panel is convinced in United States plained adopt a deliberate decision (9th Cir.1995), justify did not make “in order Where, on announced.9 rule of law it a factual de- estoppel, invoking collateral course, (9th reasoning, Judge dicta. Of Tashima’s *2 Cir. WL holdings are argue that alternative 2001) we do not (sustaining on the conviction Mar. dicta; contrary. But the fact may grounds court decision that state not, didn’t, Judge that, fallacy Tashi- only are shows changed law and even if reasoning approach. ma’s under the defendant was convicted decision). of the state instance, City Escon in Vera 9. For Cruz 1997), dido, course,” we F.3d Cir. Judge that "[o]f Tashima asserts that, previous cases had where three noted holdings "are not the and dicta alternative announcing legal standard same,” refrained from explain why. Tashima but he doesn’t force, rationale, deadly remarks their the use of 4 n. 5. Under his Concurrence at settling question. not be taken necessary to the could everything not which is that Llano, Likewise, Crespo de dicta, States v. holdings in United both alternative result is 1987), n. 2 Cir. necessary to the re- dicta because neither expressly panel not an earlier had by asking noted that proposition We can test this sult. review, dis and so its change ei- decided standard the result if question: Would regarded In both as dicta. must be holdings were re- cussion ther of the alternative cases, course, answer, dicta based on we measured Since is no. moved? issue, to decide the panel intended affecting the the earlier without be removed either could logically nec- result, whether the discussion necessary, and so under neither hand, majority previous panel that a fully the other it is cleаr considered the panel legal of the has focused on the issue interpreters issue and intended for future presented by the case before it and made a it).10 rely disapprove Judge We issue, decision to resolve the deliberate argument contrary. Tashima’s ruling the law of the circuit becomes by only and can overturned an en banc be IV Supreme by court or Court. panel Because five members of our majority

A of the en banc court has us, affirm that the determination whether would on the record concluded before place curtilage took within the proceed the search to examine the Dunn factors must be reviewed de novo. The issue was upon undisputed based facts in the fairly presented through to us and refined record: adversary process, and we have decid Proximity. 1. curtilage Because the analysis, ed it after careful rather than defined as adjoining the area and immedi- casual, through a off-hand remark or a home, ately proximity associated with the principle. statement of these broad Under to the home is the first factor under Dunn. circumstances, undeniably our court has Dunn, In the Court noted that 180 feet Weems, issue, decided the see supporting] was “substantial distance no holding and our becomes the law of inference the barn should treated Oshatz, circuit. See United States v. adjunct as an of the house.” 480 U.S. at (2d Cir.1990) (Newman, 302, 107 S.Ct. 1134. Johnson’s shed was J.) (“[I]n expressions some contexts located 120 away to 150 feet from the by appellate

views court must be re house, Dunn, quite not as far inas but still cirсuit, garded as the law of the even a substantial distance. We have noted though holding not an announcement of a “any there is not fixed distance at necessary step or even a reasoning ends,” Depew, which 8 F.3d at leading holding”); to a United States v. generally regard- but our cases have Crawley, 837 F.2d 292-93 Cir. 1988) J.) (Posner, (adopting a ed the area around a pragmatic structure 120 feet upon definition of dictum based from the house to lie curtilage. outside the essary disposition. Judge quotes only to the earlier Where a Tashima half the sen- panel deciding question, tells us it's not reading Crawley proposition tence in for the course, we take it at may ignore its word. pas- that we dicta because "the sage unnecessary to the outcome of the Op. (quot- earlier case....” Tashima at 921 Judge attempt distinguish Tashima's 292). ing Crawley, 837 F.2d at The sentence persuasive. accepts these cases is not He perhaps continues as follows: "and therefore read the law of the Second Circuit as Oshatz fully not as considered it including unnecessary as would have been a statement to the dis- case, that, if it Crawley, were essential to the position outcome.” of the but he contends Crawley 837 F.2d at 292. procedure, since the rule defines dicta involved trial courts, previous only panel, rejecting intention of the would bind the district and not inadequate panels. panels Judge later circuit But would later definitions Tashima re- passage of the Second Circuit be free to lies on. A is dicta announce a where it was "not contrary fully procedure judicial pronouncement,” rule of trial to that an- measured not; nounced in Of the law attempting course so "the court was not Oshatz? circuit, change circuit binds all courts in the the established standard and ... no including appeals panels. interpreter later court of reasonable of our decisions would give thought order for the Second Circuit to different accordingly." it was and relied guidance judges, to its trial Crawley, judi- it would have to Id. at 293. Under a measured go pronouncement by majority en banc. cial dicta. Damme, Compare States v. Van 48 can walk from the front door United of the house (9th Cir.1995) (200 461, 464 feet is to the shed without crossing F.3d over any true, curtilage); United States v. fence. While this is it misleading. outside (9th Cir.1993) (45 177, 178 Brady, 993 F.2d Johnson’s house is surrounded on more curtilage); Traynor, degrees by is outside the 990 than 270 an feet interior fence that (70 at to 75 outside the yard. only F.2d feet is includes small gap in Calabrese, curtilage); by United States fence is filled the house itself. A (9th Cir.1987) (50 person walking feet is from the front door to the fence, curtilage), may outside the shed avoid the but no one could Furrow, (9th Cir.2000) reach the back or sides of the house from (100 (or curtilage); Depew, feet is inside the 8 the shed crossing without the fence (60 house). entering Thus, F.3d at 1427 feet is inside the curti- the interior Thus, alone, lage). standing proximity fence in this case an demarcates area weighs against finding that the area out land that includes the house but excludes lay within curti- side Johnson’s shed the shed.

lage. 3. requires Use. Dunn also us to con- Because, cases,

2. Enclosure. in most question sider whether the areа in was marked, curtilage clearly appeared will be Dunn used or to be used for inti- requires us to examine the fences mate activities associated with domestic portions proper- privacies demarcated of Johnson’s life and the of the home. Dunn ty. perime- lies entirely Johnson’s shed inside the was not clear about whether use is encircling buildings ter fence his determined what the officers knew at property, an but outside interior fence the time of the search or how the home- Dunn, only includes actually the house. Under a owner himself used the area. The perimeter surrounding fence Court described factor as “the nature designate curtilage. does not See also of the uses to put,” which the area is Likewise, Traynor, 990 F.2d at 1158. suggesting inquiry that the relevant is the fence, perimeter while not sur- actual use the owner makes of the area. Dunn, rounding property, entire an encircles 480 U.S. at 1134. At S.Ct. kennel, shed, time, dog area that contains a “espe- the same the Court found it open space. the home and cially significant” several acres that the officers had ob- fence, open jective Given fields within the information that the barn being put the existence of several other interior photos domestic use: Aerial fences, perimeter we do not consider the a truck apparently delivering showed barn, in designating fence to be relevant chemicals to the and the officers curtilage. strong emanating detected a chemical odor 302-03, from the barn itself. See id. at fence, perimeter contrast an interior fence that surrounds the home is Dunn, “significant” determining Following factor in the cur emphasized we have Dunn, tilage. objective 480 U.S. at both actual use and factors in that, determining 1134. Dunn concluded where a fence the nature of the uses home, being surrounds the is un put. which structure is We have likely standing to include areas that lie outside that out- looked what observer distinguish fence. Johnson tries to structure could have side the known. (in here, Brady, determining from Dunn nothing case because 993 F.2d at 178-79 house; separates building, police the shed from the relied one the use the claim that he used does not informants, Johnson the smell tips of on the any grow- other than for activities old shed buzzing of electrical the marijuana and crops, cultivation of marijuana. “The ing (police ballasts); F.3d at Depew, 8 of those activities marijuana, is one such as that an informant tip a from received fields,’ an intimate ‘open that occur marijuana); grow to used property was Damme, 48 Van activity of the home.” were (police F.2d at 1158 Traynor, 990 Oliver, (quoting at 464 the marijuana and hear to smell able 1735). Thus, actual use 179, 104 S.Ct. ballasts). But we buzzing of electrical finding that the area out- against weighs actual uses that also considered have curtilage. the shed fell within side property. See makes of homeowner (cultivation In closer. Damme, Objective use is somewhat at 464 Van Dunn, no deputies had to activity); contrast intimate marijuana is not an indicating that Johnson information (some prior at 178-79 evidence Brady, 993 F.2d marijuana in the shed growing was storage and outbuilding was used for They entered property. his elsewhere on children, well as to area for as play aas At the property looking for Smith. 8 F.3d at 1427 marijuana); Depew, grow time, generally known a shed is not same (homeowner nudist who practicing was a of do- housing the intimate activities around the buff outside to walk liked Deputy Fading And testified mestic life. (no house); Traynor, 990 F.2d at 1158 old, lay down particular shed was that this outbuilding used for evidence hill from the home and smelled marijuana). growing other than anything fac- marijuana growing inside it. These marijuana while The officers smelled allow the officers to conclude tors would open area outside the old standing in an to not considered that the old shed was is no evidence Johnson Thus, objective shed. There part of the home. any intimate household finding that area for that the against used also tilts evidence activities, ‍‌​‌‌‌​​​‌‌‌​​‌‌​​‌​‌‌​​‌​‌​​​‌​‌​​​‌‌​‌​​​‌​​​‌​‍any outside observer the curti- nor that outside the shed was within area lage. area was so used. Be- would believe shed, not enter the the officers did cause Visibility. fourth Dunn factor 4. decide whether its have no need to has tak- steps looks at the the homeowner curtilage. fell within the See Van interior open in his prevent standing those en (where Damme, F.3d at 465 the officers activity in the area viewing fields marijuana green- from outside smelled Dunn, curtilage. in the alleged to be

houses, there was no “need to reach interior noted that the chainlink the Court the interior of the question of whether livestock, rather used to corral fences were ”). ‘open fields’ greenhouses constituted visibility.11 480 U.S. at than block See However, the uses to which the shed was nothing in the Similarly, 107 S.Ct. 1134. determining relevant to put anything suggests Johnson did record to the shed person walking from the home from the view of those shield the shed remaining within in his fields. His fences restrict- standing consider himself as would visibility. they did not block ed access but curtilage of the home. Judge Ferguson's Ferguson Op. at 903. Judge Ferguson's suggestion chain- inequality doesn't for economic provides expectation the same concern link fence through a change can see visibility the fact that one privacy a fence that blocks fence, a rich or no matter whether directly contrary Supreme Court's chainlink Dunn, the other side. poor man stands on holding as well as common sense. within may sheltered the locked shed shed was not While inside, marijuana garden pointless there was Johnson’s home. It seems observing nothing stop the officers from send this case back to the district judge, Thus, surely area outside the shed. Johnson who will reach the same result. protect pri- that area’s Accordingly, did not contrive to we would affirm. home.

vacy might protect as one one’s

TASHIMA, Judge, Circuit concurring: alone, weighs Dunn Taken each factor I concur in Judge Ferguson’s all of opin- against finding that the area outside the Court,1 a, ion for the except for Parts III.B lay curtilage old shed within the of John- b, c, d, regard and which I I dicta. property. Together, weight son’s their is separately only write to correct the mis- conclusive. The officers smelled the mari- taken assertion that Part III.A Judge of juana in an at standing open while area opinion represents Kozinski’s a “holding” away leаst 120 feet from the house and of the Court. surrounding outside the interior fence Judge Kozinski lay “Accordingly, The shed down a hill from the states:

home. house, hold that the hardly particu determination that a indeed visible (or not) lar search did did residence. There were no do- occur within the area, curtilage must be in reviewed de novo on mestic activities conducted Kozinski, appeal.”2 Op. J., 913; of at special Johnson made no effort to shield it see also id. at 909 n. 1. may from view. cases have While some find Our established musings to interesting, they are of police that where the stand outside a non- no moment because have no effect on lying away residential structure from the Thus, disposition our of the case. while I drugs, they house and smell the odor of disagree overly-broad with his generally curtilage reading of of within States, 690, 116 Damme, Ornelas v. United home. at See Van 48 F.3d (1996), 465; 179; Brady, 134 L.Ed.2d 911 Traynor, 993 F.2d at 1159; Calabrese, 1350; purpose would serve no useful to debate F.2d at 825 F.2d at Dunn, in at issue this case. see also in difficulty reaching 1134. We have little Judge musings Kozinski’s about the same conclusion on the facts of this appellate curtilage standard of review of case. determinations are dicta because the any curtilage Court has not reviewed de- V Rather, in disposition, termination.3 its undisputed Based on the facts in the remands the case to Court the district record, we conclude that the area outside court for it to make determination cases, Judge Ferguson’s opinion opinion starting Tray 1. is with United States v. nor, 1993), 1156-57 Cir. opinion the Court because it is the on which which holds that a district court’s determina disposition our mandate-our of the case-is protected tion whether an area is within the Nothing Judge opinion, based. Kozinski's curtilage of a home is reviewed under the (Part III.A) part joined not even that five clearly op. erroneous standard. See of Kozin court, other members of the en banc affects ski, J., at n. 4. disposition our of the case. fact, any 3. In the district court did not make footnote, accompanying Judge In an Kozin- op. at determination all. See for the Kozinski, J., 901; purports op. ski to "overrule” our consistent line Court at at 911. versus “ca- and “due consideration” erate” op. for the Court See instance. first He does not inform have not reviewed Id. at 915-16. 898, 901, sual.” 909. We “considered, of re- any standard under the line curtilage issue us on which side of an- Judge Kozinski’s Thus, view. because “semi-casual” duly considered” or but not standard of preferred of his nouncement all. no standard at fall. This is would unnecessary to curtilage issues review reliance on the Judge Kozinski’s “neces case, it is dictum. disposition our invoking collateral sarily rule for decided” Indus., Inc., 54 Group v. Export Reef equally flawed. estoppel, see. id. at Cir.1995) (adopting 1466, 1472 primary precondi Obviously, one of of “dic- definition Dictionary Law Black’s estop of collateral tions for the invocation ... not or remark as “an observation tum” was, fact, in in that the decided pel in the case or essen- is issue necessarily involved determination”) in the (ellipsis applying But prior proceeding. tial to its “not (holding that statements Id. an issue has original); same test-whether “undeni of the case decision” necessary to the to dis legal issue ably” been decided-to impact”). binding precedential or no “have holding dictum and tinguish between fact, any would, completely in obliterate not contend does Judge Kozinski holdings. A dicta and distinction between are pronouncements of review his standard any “undeniably” ques decide panel can any accepted defini- according to dicta law, to or not it is related tion of even at- does not the term. He tion of in the and whether or not any issue case regard- that his statements tempt argue necessary disposition of the case.5 is curtilage for of review standard ing the necessary to our deci- determinations Finally, Judge Kozinski’s reliance They transparently are sion in this case. misplaced. authority out-of-circuit Instead, our Cir- with disagrees he not. (2d Oshatz, F.2d 534 States v. United “dictum,” reflects of which definition cuit’s Cir.1990), “approv[al] or dis- involved the com- development of centuries-long proce- aspect of of trial court approval an] accepted ap- mon law.4 He criticizes at It thus involved the dure.” Id. 540. “judges often “difficult” because proach as supervisory of that court’s author- exercise and is not neces- about what disagree in ity the trial courts that circuit. over Op. of of a case.” sary to the resolution extending of Whatever merits submit, however, Kozinski, J., I at 914. here, circumstances, in force of dicta such adopt have us standard he that the would course, supervi- no exercise of our of such difficulty. with more fraught be even would definition, By sory authority is involved. subjective wholly shift to the He would any appellate of re- of “delib- rule on the standard standard completely unworkable other, banc), however, (9th Cir.1998) (en has, agreed with Judge 4. Kozinski J., cases, Kozinski, "dictum" in the accepted op. definition at 914- similar see City Escondi- past. See Vera recent do, holdings Cruz 15 & n. alternative confuses Cir.1997) (charac- 139 F.3d course, they are not the same. See dicta. Of "dicta" because terizing prior cases as three Co., Realty Woods v. Interstate occasion to decide” "the earlier cases had no (1949) 93 L.Ed. 1524 Likewise, issue). occasion to have "no ("where or rests on two more a decision issue in this of review decide" the standard catego- relegated to the grounds, none can case. cases). dictum”) (citing He ry does of obiter pronouncements this not contend that his Calderon v. Judge discussion of 5. Kozinski’s holding. (Kelly), are an case alternative States Dist. Court only panels future speaks “holding” statement as a does not view make it Thus, reasoning has no so. Oshatz’s Court.

application here. are, fact, dicta, Because subse- quent panels are by not bound either Judge Kozinski’s reliance on United Judge self-proclaimed Kozinski’s “holding” Crawley, States v. Cir. purported “overruling” of our 1988), puzzling. Judge Ko is even more prior Judge Ferguson observes, cases. As zinski’s ruminations about the standard panel we must “leave for another ques- appellate curtilage meet review issues resolving tion of what standard of review every quoted definition of “dictum” apрlies this Court determina- Moreover, id. at 292. it even case.6 See Op. tions.” for the at Court 901. Judge “pragmatic meets Posner’s defini Kozinski, J., Op.- of tion of dictum.” GOULD, RONALD M. Judge, Circuit For, observes, Crawley first with whom Circuit Judge joins BERZON among “many” “reasons there are II, in Part concurring: pas against giving weight court’s sage previous opinion” found in a “is that I. passage unnecessary to the out I, IIIA, II, I concur Parts IV V of (empha come the earlier ....” Id. case of Judge join I opinion. Kozinski’s the hold- added). sis ing that Supreme the United States Court’s decision Ornelas v. United Judge pro-

The fact Kozinski’s States, 116 S.Ct. joined by majority a nouncement is of (1996), requires L.Ed.2d 911 us to review court does not affect the en banc this de novo a district court’s deci- definition, un- analysis. By dictum is an sion, and that our earlier inconsistent necessary majori- statement made cases are overruled. by major- ty; unless statement is made ity, engage there is no need to in an II. analysis particular of whether that state- Thus, holding. ment is dictum or a while respectfully join I IIIB. decline Part authority the en banc court has the briefing, argument, We have had no no holding pan- of a judge overrule three holding/dicta and no conference on the de- el, only holding necessary it can do so in a me, bate. For itself is debate outside disposition to the If it case. were III, empowers of Article which us to de- otherwise, the en banc court would be Here, cide cases and controversies. we acting legislature as a and not as a court. duty disputed to decide the issues Cohen, Flast v. 96 & n. between Johnson and the United States. Cf. (1968) (not- 20 L.Ed.2d 947 holding/dicta interesting is debate ing against advisory opin- rule might journal, “[t]he in a law which beneficial early ions was established as as 1793” and to comment fur- could recruit academics it my “has been adhered to without devia- ther on the eminent issues which tion”). in- Finally, ipse labeling colleagues disagree. might dixit The debate concerning 6. All of ... rule ... that is not nec- these definitions share a common some essarily theme: "a statement ... that could have been essential to the decision and lacks the seriously impairing authority adjudication;” "a deleted without the ana- statement not lytical holding;” "argu- necessary Crawley, foundations of the ... for its decision.” decision;” unnecessary ment "a remark F.2d at 292. possibly a court and judgment form our America, UNITED STATES orders or general

lead to consideration Plaintiff-Appellee, fu- guide precedent rules about other their Article consistent panels ture thought stimulates III duties. debate JORDAN, Defendant-Appellant. Ronald process: what judicial nature of on the what should be by precedent mean No. 97-10255. However, in and dicta. holding considered Appeals, Court of United States in this judges view, my the debate Ninth Circuit. binding effect of their deci- case over panel a future cannot bind made here sions Nov. 2000. Argued and Submitted duty assess own have its which will July Filed holding is judicial statement whether a over the fu- debate Respectfully, dicta. left to the a decision best import

ture necessary to the decision

future when

of a case.

PAEZ, concurring: Judge, Circuit opin- Judge Ferguson’s in all of

I concur in Part III.A. except for his conclusion

ion standard of not resolve the

that we should at this curtilage determinations

review for

time. Judge in Part III.A. of

I also concur agree I opinion because

Kozinski’s of review for appropriate ‍‌​‌‌‌​​​‌‌‌​​‌‌​​‌​‌‌​​‌​‌​​​‌​‌​​​‌‌​‌​​​‌​​​‌​‍standard in light is de novo

curtilage determinations States, Ornelas (1996). 134 L.Ed.2d however,

Here, the district court did not Even un-

make a determination. standard, appropriate it is

der a de novo court to rule on the issue

for the district can instance. We then review the first unen- court’s determination

the district any speculation of what the

cumbered by its failure to ex-

district court intended or whether the

plicitly address the issue Accordingly, agree I complete.

record Ferguson that we should re- Judge

mand the district court for determina- curtilage.

tion of

Case Details

Case Name: United States v. Michael Johnson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 20, 2001

Citation: 256 F.3d 895

Docket Number: 99-30012

Court Abbreviation: 9th Cir.