United States v. Piedad Barajas-Avalos, AKA Piedad Barajas-Avaslos

2310(d)(3)(B) § rеquirement of threshold America, UNITED STATES of arbitrarily

simply by tacking .substantial Plaintiff-Appellee, punitive damages sum of onto minimal compensatory damages claim. Because adjudicate, legislate, our role is to we BARAJAS-AVALOS, Piedad aka Kellys’ decline the invitation write Barajas-Avaslos, Piedad punitive damages provision Mag- into the Defendant-Appellant. Warranty nuson-Moss Act. The district determining court was correct that the No. 02-30301.

Kellys’ claims fail to meet the amount in Appeals, United States Court of controversy requirement. Ninth Circuit. Oregon Argued and Submitted Nov. 2003. Ii. The Lemon Law Claims March Filed 2004. Kellys against also seek relief Enterprises Oregon’s Fleetwood under July Amended Law, permits Lemon which limited recov

ery “if the court that the manufactur finds good

er did not act in faith.” Or.Rev.Stat. 646.359(1).

§ Kellys allege no inde

pendent subject jurisdic basis for matter claims,

tion over their state law but instead

rely upon supplemental the district court’s 1367(a).

jurisdiction. § See 28 U.S.C.

However, Kellys because the failed to sat $50,000

isfy Magnuson-Moss ju Act’s prerequisite,

risdictional there were no original

“claims the action within [its]

jurisdiction” to form supple the basis for jurisdiction.

mental affirm Id. We the dis

trict court’s dismissal of these claims.

AFFIRMED with instructions to the

district court to enter an order of dismissal prejudice.

without Rice, Portland, OR,

James G. defendant-appellant.

Fred N. Weinhouse Michael J. Brown, Attorneys, Assistant United States Portland, OR, for the plaintiff-appellee. ALARCÓN, FERGUSON, Before RAWLINSON, Judges. Circuit ALARCÓN; Opinion by Judge Partial by Judge Dissent FERGUSON. the cases cited Mr. ORDER concerning the searches of the interior filed March opinion, The court’s of non-traditional structures hold that a 1204], amended as follows: F.3d [359 hotel, guest in a residence or or an second full final sentence of the overnight camper, protected right has a F.3d at slip op. [359 paragraph privacy surrounding in the area matter, reads, “In the instant 1213] sleeping quarters. his or her Mr. Bara- not enter the trailer or use the officers did jas-Avalos has not demonstrated that interior,” its is deleted. explore a device to the officers violated his Fourth Amend- slip op. 2879-80 paragraphs The two rights by viewing ment the interior of that read: F.3d at [359 1213-14] through the travel trailer a window. Barajas-Avalos Mr. agree We no Fourth Amendment that “there is following paragraph are deleted. The only for provides protection rule that for place be substituted in their and in- shall traditionally Ap- houses.” constructed slip op. serted 2879: Opening Brief at 15. The cases pellant’s agree We with Mr. how- support proposition, cited in of this that “there is no Fourth Amendment ever, entry a warrantless each involved only rule that for for provides protection into interior of a non-traditional traditionally Ap- constructed houses.” Gooch, 6 In States v. structure. United pellant’s Opening Brief at 15. In this (9th Cir.1993), that a F.3d 673 we held matter, however, prohibited no search a of the interior of warrantless search unoccupied the interior of the travel public campground tent on a violated trailer occurred. An of the observation In Id. at 677. Fourth Amendment. protected through interior of a structure (9th Nelson, LaDuke v. 762 F.2d 1318 window, by a even when enhanced Cir.1985), priva- held that “LaDuke’s we flashlight, does not constitute a search by flashlight search of cy was violated when the is made from an observation Id. at n. 19. United his tent.” 1332 (9th Sandoval, open public place. 200 F.3d 659 or States v. field United Cir.2000), Dunn, 294, 298, 304, held that a search of the we States v. 480 U.S. (1987). of a makeshift tent viоlated the interior 107 94 L.Ed.2d 326 S.Ct. expectation pri- appellant’s reasonable has not demonstrat- illegal- vacy though camped even he was ed that the officers violated his Fourth Management Land ly on Bureau of rights by viewing the interi- Amendment property. Id. at 661. through trailer a window or of the travel Barajas-Avalos’s reliance on standing while an field. entry that holding cases a warrantless slip op. paragraph beginning In the on of a “non-traditional” into the interior ending slip F.3d at [359 1215] house violates the Fourth Amendment 1215], op. penulti- F.3d at [359 shows that the misplaced. record “The record is un- reading, mate sentence not travel trailer. officers did enter the the travel trailer did not disputed pro- An of the interior of a observation dishes, utensils, food, cooking contain window, through a even tected structure television, clothing, bedding, a radio or by flashlight, does not when enhanced electricity, plumbing, or a hookup constitute a search. United States water,” replaced It is Dunn, 298, 304, source of is deleted. 107 S.Ct. U.S. (1987). following None of with the lines: 94 L.Ed.2d 326 amendments, Judge in- Alarcon With these undisputed It is officers deny the Judge Electric Rawlin son vote to by the Portland General formed provide rehearing. not electri- for Company petition that it did Tree Farm. cal service to the Willow Ferguson grant peti- votes to Judge police prior to Neighbors reported to the rehearing. tion for that no one lived on the thе search deny voted to Judge Rawlinson has did not observe property. rehearing petition for en banc. activity any lights or on the daytime night- pe- left at Alarcon recommends that the Judge after the visitors rehearing fall. en banc be denied. tition for full The final sentence the first Judge Ferguson recommends slip op. F.3d at paragraph [359 rehearing granted. be petition for en banc stating, curtilage hold that the 1216] “We The full court has been advised immediately applies to the area doctrine judge No petition rehearing en banc. home, empty an surrounding a requested has a vote on whether to rehear occasionally sleeping structure used R.App. Fed. P. 35. the matter en banc. quarters,” is deleted. rehearing peti- and the petition The slip op. full on paragraph The second rehearing are DENIED. tion for en banc 1216], F.3d at which reads: 2883 [359 Because Mr. has ORDER to demonstrate that the travel failed on the Tree Farm was dissent, majority trailer Willow opin- The filed with the used as a hole within the definition set 1204], ion on F.3d [359 March Hester, clearing forth in the natural sur- amended as follows: rounding protected it from tres- was in phrase “concurring part The and” on pass by the Fourth Amendment. slip op. F.3d at [359 the first line of Therefore, hold that the district we is deleted. 1219] issuing court not err in the search did portion paragraph The of the first on based, in on the part, warrants observa- reading slip op. 1219] F.3d аt [359 trespassing tions of the officers after on “This case addresses the issue whether Farm, the Tree Willow government may of a search legitimacy the and replaced is deleted with: depend upon the results of that search. totality The of the circumstances re- prohibits Because the Fourth Amendment officers, lated the based on their ob- rule,” such a is deleted. open servations from the field surround- their ac- paragraphs, The twelve trailer,

ing the travel were sufficient to footnotes, companying slip op. 2890-93 support an inference that the travel 1219-21], F.3d at that read: [359 trailer was not used as home. There- fore, surrounding majority opinion correctly the the trailer until about interior of “protected right have no inhabitants they next immediately stood to the trail- privacy in surrounding the area his peered through a window with a er or her sleeping quarters.” the ma- flashlight. looking through Before the view, then, jority’s the Fourth Amend- window, agents the not know what did only police ment prohibits from they would find. peering through the windows of homes majority has now decreed in this which are “traditional structures.” On validity that of Circuit when the a view, government agents may this look in question, permissible search is it is through campers, the windows trail- the cart horse. If place before the ers, tents, living spaces and similar as of the search flashlight results had much they please as without search war- home, shown that the trailer was then rants. immediately surrounding the area majority’s holding, curti- Under the officials qualified structure would have as lage purposes wishing for the Fourth Amend- interior of a inspect home curtilage steps protect 1. Determination of the extent of taken the resident to the area requires analysis area de- four-factor from While these observation.” Id. factors Dunn, scribed United States v. 480 U.S. (had suggest curtilage of the trailer that the it 301, 107 94 L.Ed.2d S.Ct. 326 home) likely been used as a would have en- notes, (1987). majority As the ‍‌​‌‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​​​​​​‌‌​‍in such cases compassed clearing the entire natural required proximi- courts are “the evaluate: situated, very which the at the trailer was ty curtilage area claimed to be to the least, immediately adjacent to the the land home, whether the area within an is included protected trailer’s have been windows would home, surrounding enclosure nature curtilage government as intrusion. from put, uses is to which the area and the ... contains incidents record “[t]he a search war- through a window without forcibly agents Patrol in which Border whether the only determine rant need intruded, or with a physically either “non-tra- is a “traditional” or structure units.” housing into the flashlight, tra- If the structure is house. ditional” added). (emphasis We F.2d at 1327-28 ditional, may be cur- the area around quali- that both behaviors made it clear government tilage protected non-traditional, violations: Fourth Amendment fied as If it is intrusion. was violated privacy “LaDuke’s protection no around it has such area physi- and a flashlight of his tent made search any efforts (regardless privacy trespass cal while Garcias’ public observa- prevent inhabitants to through trespass.” tion) only violated peer are free to added). (emphasis n. 192 any time Id. the windows at with- through out a warrant. flashlight to see how the It is difficult materially dif- intol- searches LaDuke were problem

This “solution” flashlight search con- cannot ferent from the government agents If erable. here, our La- especially since house in the ducted outside a traditional stand deposition Duke footnote references through the window peer suburbs and warrant, “lights through shined win- describing a search should without holding in majority’s Id. The with a non-tradition- dows.” not be able to do so that, tents suggests this case because may al serve as someone’s structure occupied by plain- home, stated in such as the one such as a trailer. As we Nelson, in LaDuke are non-traditional 762 F.2d tiffs LaDuke v. (9th homes, Cir.1985), government agents flash- “the Fourth Amend- n. through the tent lights may péer now permit government ment [a does basis windows at will. agency] per to differentiate on a se accorded different stocks privacy in the Trailers, tents, and other campers, housing.” typically non-traditional structures (temporary permanent) residences majority agree claims to are entitled to the same Fourth Amend- no Fourth Amendment rule “there is houses, tra- ment as traditional only protections for provides protection that an of a non-traditional ditionally houses” but con- and inhabitant constructed privacy to in only protected right been home has a principle tends that this has surrounding sleeping or her distinguish- in are area his applied cases which the instance, curtilage quarters.3 concept able from the facts here. For only govern- be irrelevant where majority says, LaDuke “involved a would the conclusively entry agents of a ment were able to warrantless into the interior establish, peering through (emphasis in without first non-traditional structure” window, ques- in that the structure majority opinion) because “LaDuke’s (whether a traditional or a nontradi- flashlight tion privacy violated dwelling-place) being tional was not reading of his tent.” This search government in as a home. Because the ignores finding LaDuke our that case area, protected as with all is attached 3. The extent of the 2. The text to which footnote "curtilage questions,” “The minor differences in which reads: would be resolved such rights representative’s Fourth Amendment the four factors outlined in with reference to were violated does not render their claims Dunn, S.Ct. 1134. 480 U.S. at atypical of those of the class.” do so in Development would not have been able to this Potential on Indian Lands case, ix, (2000), hold the District I would that http://www.eia.doe.gov/ cneaPsolаr.renewables/ilands/ilands_sum Court to the extent that its refusal erred Barajas-Avalos’s motion grant sup- join .html. I opinion cannot an that sug- made press was based observations “home,” gests that a is house not a with government agents peering while all protections constitutional that through the trailer’s windows. Conse- carries, status because it an lacks elec- quently, I III and dissent Parts IV Moreover, here, tricity supply. the fact majority opinion. that the Portland General Electric Com- pany officially did not provide service to The following para- are deleted. seven the trailer not did mean that was not graphs accompanying and the footnotes available; Barajas-Avalos’s brother tes- in shall be their and in- place substituted “[tjhere electricity tified that is on the 2890: slip op. serted telephone pole and we used wire con- majority govern- holds that nect it to trailer.” agents permitted ment to infer say I also cannot that a house not as a the trailer was not used home1 (1) entitled to full Fourth pro- Amendment from three facts: the Portland Gen- Company provide eral not tections because in it is Electric did residence not (2) service; electrical the officers did not Both migrant continuous. farm workers anyone night in spending observe wealthy with people second homes prop- the trailer when observed the (who in very Hawaii different rea- —for erty apprоximately ten or eleven times spend sons—would one season one hours; morning evening or another) house and the next season in (3) reported no neighbors one lived have privacy rights the same (this on the fact is mistate- around people their residences as evidence). ment of the Nelson, only one home. See LaDuke (9th Cir.1985) (holding 762 F.2d 1318 is, The fact there are people this Border Patrol violated country do live electricity. who without Fourth by searching mi- Amendment Department Energy The U.S. calcu- grant housing farm units without lates that 1.4% of U.S. households either consent). occupants’ enough It is not pay do not for or no have access to now, say unoccupied that a house is Admin., Energy electricity.2 Info. Office unoccupied lately; has been houses do Coal, Nuclear, Electric and Alternate Fuels, acquire legal Dept, Energy, status of barns or Energy U.S. Consumption Energy during and temporary Renewable warehouses the ab- inference, according 1. occupied "severely Because this to million of the renter households 725,000 majority, inadequate” housing the could the treat area owner units and field,” “open around the as Policy trailer rather than households Office Dev. and did so. of home, curtilage Research, as the of a and thus did not Dept, of U.S. Hous. and Urban peer Dev., need a to the warrant into trailer Housing Rental Assistance—The Wor- through flashlight. with a window sening Repоrt Congress Crisis: A to on Worst Needs, (2000), Housing app. Case at A-2 Housing http://www.huduser.org/publications/affhsg/ Department 2. The U.S. of and Urban many report, In a unit Development also found worstcase00.html. the was has Amer- severely inadequate if it had icans live without basic services. A recent considered to be that, problems heating, report plumbing, HUD severe in its indicates over a 1048 housing.” of different stocks See also of their owners. This is true even

sence extended, long States, absence is so Eng the v. Fung where Jem United (“The has not abandoned. (9th Cir.1960) been as F.2d tran- Wilson, 472 F.2d States United stay in appellant’s sience the room of Cf. (9th Cir.1972) (holding that a tenant the force of constitutional does not dilute property, having left departed who to protection.... right privacy unpaid, and the rent did the door equal vigor must be accorded both object to a search standing not have to and guests to hotel to occu- transient premises). the abandoned of pants private, permanent dwellings.”). of Finally, majority states that Bara- Border held that Patrol LaDuke jas-Avalos’s neighbors police told the housing farm units migrant searches of on the property. that no one lived required occupants. consent of the fact, Poikey testified that Agent Some F.2d at 1327-28. of knowledge “said had no neighbors unconstitutional searches held anyone living there.” Given that the of here, searches, flashlight as is case question unit in housing was surrounded of physical not intrusions the interi- by vegetation all sides and trees on 1327-28, or of units. n. Id. land, parcel of rural is thirty-acre suppose is no reason to There hardly revealing neighbors that the had except curtilage we to from our meant knowledge anyone living in the no regarding equal level of statement I would therefore hold that the trailer. “privacy accorded different stocks of had no information government since this area Fourth housing,” legitimately which it could have conclud- analysis necessarily is im- Amendment was sub- ed that the trailer not a home ject plicated approached by privacy protections all of the when home to by the afforded homes Fourth Amend- government agents but not entered. ment. reasons, I For all of these dissent Additionally, I am that por- concerned III of the majority Parts and IV majority opinion may be tions of opinion. suggesting as that our understood analysis OPINION curtilage

Fourth Amendment in some might apply different manner ALARCÓN, Judge. Circuit majority “dwelling terms a what Piedad convicted than to “temporary sleeping house” manufacture conspiracy methamphet- room, in a quarters, whether hotel attempting amine manufacture trailer, in a public or a tent area.”3 manufacturing methamphetamine in viola- correct, This cannot be as it would di- tion of federal law. He was sentenced to rectly contradict our rule in LaDuke v. serve of imprison- concurrent sentences Nelson, 762 F.2d at 1326 n. that “the ment for 360 months. does permit Fourth Amendment not [a judgment He reversal of the seeks government agency] differentiate on a conviction per privacy ground se basis accorded on the the court correct, system, many people upkeep, hallways. Id. at do reside electrical in trail- A-20, (as A-28. ers well as in other non-traditional hous- units) ing long of stretches time. For majority appears every 3. to assume that instance, Barajas-Avalos's brother '' testified house, 'non-traditiona! such as travel at in that he lived in the trailer issue this case trailer,” place persons is a "in which occa- September to December 1993. course, is, night.” sionally spend the of This denying suppress Oregon in to the since August erred his motion State Police pursuant time, seized to search During participated the evidence in he more Mr. contends warrant. involving manufacture, than 300 cases by- the upon magis- that the facts relied possession, and distribution of controlled in warrant judge issuing trate substances. He also worked in an under- by derived from earlier observations made capacity cover to infiltrate organizations law officers means of an enforcement distribution, involved in possession, thirty-acre his trespass unwarranted onto methamphetamine and manufacture of to of rural natural parcel land and the clear- gain information. He attended a Drug surrounding his trailer. ing travel (“DEA”) Enforcement Administration for- challenges ty-hour basic laboratory also clandestine inves- sentencing tigator court’s decision. He district school in and 1995. He also in denying that the court erred contends forty-hour attended the DEA lab site safe- departure. for a his motion downward He Quantico, officer’s ty Virginia. school in imposed by sentence also asserts He has attended numerous classes and punishment the court is cruel and unusual acquaint designed seminars to and train he felon. because a recidivist law enforcement with officers the methods organizations manufacture con- affirm judgment of conviction We trolled illegally. substances probable because we conclude that cause for the the search existed issuance of war- Beginning in April Detective Olsen appeal rant. dismiss the portion We DEA Special Agent Jeffrey Poikey and from the district court’s denial of a down- (“Special Agent Poikey”) initiated an in- departure appellate juris- ward for want of (“the vestigation organization of an Organ- affirm diction review the order. We ization”) be manufacturing believed to sentence of 360 we con- months because large quantities methamphetamine of in grossly disproportionate clude was not Portland, Oregon Organiza- area. The Barajas- crimes committed Mr. tion consisted His-panic individuals who Avalos. large Natiоnal” operated style “Mexican ' methamphetamine. laboratories. These I multiple large laboratories consist of reac- Detective Lenard of the Ore- C. Olsen capable producing fifty tion vessels gon Police filed an affidavit in sup- State pounds methamphetamine more of finished request Barajas- his port of to search process.' process in one involves the two-story single-family dwelling Avalos’s iodine, of pseudoephedrine, use and red located 14280 Northwest Tradewinds Methyl-Sulfonyl-Methane phosphorous.- Portland, thirty-acre Oregon, Street (“MSM”) cutting agent. is used as a parcel land located southeast of the Springs Road intersection Soda 29, 1999, agents working On June DEA (the Road, Creek, Oregon Potts Gales conjunction Westside Inter- Farm”), Tree twelve-foot ‘Willow agency twenty-two Narcotics Team seized Quonset style trailer travel and a metal- methamphetamine large at -a pounds thirty-acre framed structure located on the Hillsboro, laboratory in a residence Ore- parcel. - gon. laboratory This was identified as belonging through cell Organization Detective Olsen’s set forth affidavit records, fingerprints, toll following employed phone facts. He been state- had continuously persons custody. with the narcotics division of ments from 12, 2000, Barajas-Avalos Barajas-Avalos by June Mr.

Mr. was identified On by DEA being a mem- was observed a surveillance team “cooperating defendants” as twenty-five pounds of purchasing involvement MSM. Organization. of the His ber by through agents confirmed DEA was July “cooperating defendant” establishing that analysis phone records Poikey Special Agent informed that Mr. Barajas-Avalos with in- communicated Mr. Barajas-Avalos owned a ranch located by telephone. investigation dividuals under Grove, Oregon. of Forest The in- west by that the ranch was used former stated 24, 2000, January law enforcement On Organization a cook location for metham- pounds officers seized thirteen Agent Poikey methamphetamine. Special large laboratory located at a phetamine Organization paid told that Mr. Tillamook, Oregon. a residence This $15,000 Barajas-Avalos allowing for them laboratory was also as belonging identified use the ranch for the manufacture of rec- Organization through phone cell methamphetamine. ords, from ar- fingerprints and information restees. 7, 2000, July On DEA deter- Barajas-Avalos part mined that Mr. was a 23, 2000, March near a fence on Soda On Farm on owner Willow Tree Soda Road, on corner of Springs the southwest 2,322 empty pseu- Road. Springs Farm, Washington Tree Coun- the Willow on March doephedrine bottles found 2,322 ty Office recovered deputies Sheriffs had been to the fence found next pseudoephedrine empty bottles the southwest corner of the Willow Tree open. cut was sub- bottoms This Farm. sequently belong to Mr. Ba- determined

rаjas-Avalos. 11, 2000, Barajas- September On Mr. Avalos was observed a DEA surveil- alleged 'pseu- Detective Olsen twenty-five purchasing lance team another doephedrine precursor is a chemical used pounds of MSM. production methamphetamine. in the He also stated in affidavit that his September Also in Detective Olsen practice common who are in- persons Agent Poikey began and DEA conducting methamphet- manufacturing volved with a surveillance the Willow Tree Farm. amine often use a to cut utility knife 19, 2000, September On observed a the bottoms of the The empty bottles. pickup Ford truck black without vehicle processed finger- bottles were for latent plate parked license on the Willow Tree County prints Washington Forensic grounds. Farm The officers followed the Laboratory. Two fingerprints were identi- Grove, Oregon. truck to pickup Forest belonging fied as to members of the Or- stopped by The vehicle was Forest Grove ganization. Anthony Police Officer Silva. 24, 2000, April Special Agent

On Mr. Silva Officer informed pur- Poikey pickup was observed DEA surveillance that he stopped truck MSM, chasing pounds failing display plate. sixteen for license cutting vehicle agent methamphetamine. Laboratory passenger was a of the methamphetamine pickup tests seized on Ford truck. He told Officer Silva January 24, 2000 at Organization’s Til- that he resided 14280 Northwest Trade- lamоok, winds, Portland, Oregon, methamphetamine Barajas- Oregon. labora- tory showed was used as Avalos stated that the owner of MSM he was cutting agent. truck. 21, 2000, Special September Agent Poikey Barajas-Ava-

On Detective Olsen at Mr. Poikey Special Agent and entered the Wil- los’s residence at 14280 Northwest Trade- winds, Portland, a Oregon. low Tree Farm without warrant or con- sent from Mr. or the other As Detective approached Olsen co-owners. On the southeast corner of the property, southeast corner of the he heard Farm, Willow Tree observed a coming Quonset noises from the hut that Quonset twelve-foot travel trader and a sounded like the movement pots style (“Quonset metal-framed structure pans. The officers continued their surveil- hut”) vinyl covering, covered with a silver lance until the truck pickup depart- black canopy. a truck with a Detec- pickup Special Agent Poikey ed. observed Mr. observed, through tive Olsen window Barajas-Avalos arrive at his 14280 North- canopy, large plastic two trash contain- Tradewinds, Portland, west Oregon resi- ers, boxes, acetone, two blender a can of dence 2:40 a.m. on the following morn- burner, propane plastic gloves, discarded ing. Thereafter, lights the interior of Mr. towels, paper tape, twenty-five duct and a Barajas-Avalos’s residence were extin- pound pail labeled in the MSM bed guished. pickup truck. Detective Olsen knew 11, 2000, On October Detective Olsen training аnd experience his these submitted an affidavit containing the fore- items were used the manufacture of going facts to Magistrate United States pickup Next methamphetamin^. Judge Janice M. Magistrate Stewart. truck, “separatory the officers saw two Judge Stewart issued warrants authorizing valves, lengths vessels” with tub- rubber Farm, searches of the Tree Willow Mr. ing, and hypochloride containers sodium Portland, Barajas-Avalos’s Oregon resi- Quonset walking solution. After into the dence, and his black Ford pickup truck. hut,’ agents saw a three-foot stick with 20, 2000, On Magistrate Judge October a red stain on one end. Detective Olsen Stewart authorized the search of a storage experience phos- knew from his that red Beaverton, Oregon, locker in registered to phorus ingredient an used in man- Barajas-Avalos. Searches con- were methamphetamine. ufacture of pursuant ducted to these warrants. Detective observed Olsen four discarded glass lids that approximately eight II next inches diameter to the travel trail- filed a motion to er. These lids were similar to lids he had suppress pursu- all of the evidence seized seized from the Tillamook and Hillsboro ant to the search warrants. The motion laboratories. Detective Olsen learned states: such were used to deep lids cover electric hearing The evidence at the

fryers. deep fryers Electric are this motion will that federal es- evaporate liquid pseudoephedrine mix- show probable tablished cause to obtain a pseudoephedrine hydrochlo- ture into solid ride, magistrate search warrant from a necessary ingredient manu- only by trespassing October methamphetamine. facture of onto curtilage proper- of defendant’s ‍‌​‌‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​​​​​​‌‌​‍10, 2000, On October Detective Olsen ty in of the Fourth violation Amend- Special Agent Poikey observed Mr. ment. Barajas-Avalos’s pickup black truck parked on the Farm. testimony presented by Willow Tree This the Govern- pickup same truck hearing had been observed ment at on the motion to regard- permission The officers from a facts obtained

suppress disclosed additional surveillance from an neighbor conduct Tree Farm and the officer’s ing the Willow adjoining property on the east side of the to ob- prior and observations information location, Tree From that Farm. Willow July 5, taining the search warrants. On trailer, Quonset a they observed a travel Agent Poikey was informed Special hut, and some abandoned vehicles. by that a ranch “cooperating a defendant” arrive in the officers also saw vehicles by Springs on was owned Mr. Road Soda through a morning gate. and enter secured and used for that was approximately left The same vehicles methamphetamine. the manufacture twenty thirty minutes after dark. The independently corroborat- report This was the gate was secured each time cars left by ed information that the officers had Tree the Willow Farm. Organi- previously regarding received the had a gravel The Willow Tree Farm zation, Barajas-Ava- by Mr. purchase the large gates. that had road three The en- MSM, large quantities of and the los of posted Trespassing” trance was with “No 2,322 discovery pseudoephedrine empty was fenced signs. property adjacent to corner of bottles the southwest wire. barbed Special Agent Tree Farm. Poi- the Willow was key learned that a conducting After from a surveillance by of the Tree Farm ex- co-owner Willow times, neighbor’s land ten or eleven the amining tax assessment records. The officers concluded that no one resided on zoned as farmland. property period, was time property. During this or any lights activity officers did not see Tree not have The Willow Farm did on the after vehicles left Instead, residential address. it was identi- nightfall. consulting After with members par- its fied in the tax assessor’s office Attorney’s Office, of the United States cel number. The officers were informed officers entered the Willow Tree Farm Company the Portland General Electric September from the west at 6:30 a.m. provide that it did not electrical service to They observed a travel trailer Tree Farm. the Willow Quonset hut. Both were dark. They left the property being after con- Special Agent Detective Olsen Poi- A dog. fronted an unleashed second key began their surveillance of the Willow dog joined barking at the departing early Farm in 2000. Ini- September Tree person appeared prop- officers. No on the tially they parked their vehicles in a wood- response barking erty of the land, ed adjoining area on outside the dogs. boundary western Tree Willow 21, 2000, September On the officers vantage point, they Farm. From this could Farm ap- reentered Willow Tree gate driveway and the observe trailer, Quonset proached travel Willow Tree Farm. of the Wil- Their view hut, and the abandoned vehicles. On this blocked, partially Tree Farm how- low was they occasion the items observed described ever, by acres curly ten willow trees. in Detective Olsen’s affidavit as metham- adjacent Neighbors properties on the stat- materials. phetamine cooking ed to the officers that had no knowl- living edge anyone on the Tree Willow Agent Poikey and Special Detective Ol- per- property. They reported Farm looked the travel trailer through sen inside come to property during sons would They twenty-pound its windows. saw two day night. propane and leave at tanks the floor of the travel appeared to be DEA countertops Special Agent trailer. The Shawn Alexander testified that he They assigned saw four-inch thick foam empty. surveil Farm Willow Tree from аn pads, bedding pillows adjoining but no were visi- property on October 2000. Prior to the ble. arrival of the officers with the search war- no electric lines at- power There were rants, Special Agent Alexander smelled an tached to the travel trailer. It did not chemical, burning odor of a and saw a appear septic system to be connected to small Special amount of smoke. Agent any of kind. travel trailer did not Alexander testified that based his train- appear any signs to contain other of occu- ing experience the odor was similar to water, running pancy, such as: source that which a methamphet- emanates from food, set, clothing, a television or a radio. laboratory. amine There were no in operable vehicles the Barajas-Avalos presented Mr. witnesses clearing surrounding natural the travel 6, 2001, on March in support of his motion trailer. suppress pursuant the evidence seized to the search Barajas warrants. Ramone 26, a.m., September 2000 at On 6:30 testified that he is the father of Mr. Bara- Special Agent Poikey reentered the Willow jas-Avalos. He and his two sons were co- Tree Farm with a video camera. He owners the Willow Tree Farm. He testi- trailer, videotaped Quonset the travel slept fied that he many in the travel trailer hut, and the items described the affida- stayed times. He in the travel trailer “to vit for the search warrаnts. things” get watch over and “to inup September, Between 2000 and Octo- morning addition, and work there.” In he 10, 2000, ber the officers continued their stayed in the travel trailer at times in the surveillance of the Willow Tree Farm from protect curly summer to willow trees 10, 2000, adjoining properties. On October Barajas from elk. Mr. testified that he the officers saw and heard sounds that had slept last the travel trailer during banging pots were consistent with the preceding Barajas summer. Mr. also pans. At p.m., around 7:00 two vehi- parties testified that outdoor were con- property. Barajas-Ava- cles left the Mr. clearing ducted the natural where the los’s vehicle was followed to a bar. parked. travel trailer was On cross-exam- ination, Barajas Mr. testified that no one While Mr. inwas thirty-acre permanent- lived on the parcel officers, bar Under surveillance other ly, just stay “[w]e there.” Special Agent Poikey and Detective Olsen Enrique Barajas testified that he is Mr. reentered the Willow Tree Farm at 11:00 Barajas-Avalos’s brother. He stated that p.m. tarp entry that covered the he used the travel trailer as his residence x Quonset propped open by hut was a 2 September between 1993 and Decem- They propane board. observed burners year. ber 26 of the same Quonset pots pans inside the hut with They on them. also a large plastic saw Special DEA Agent Thomas Velez testi- container cоntained a solvent and a prosecution. fied on behalf He stat- sludge white or After making executing solution. ed that he assisted the search observations, pre- these Detective Olsen warrant at the Willow Tree Farm. He pared requested an affidavit and that Mag- conducted a search of the travel trailer on Judge istrate Stewart issue search war- 2000. ap- October The travel trailer “dirty” rants. in.” peared and “not lived It did obtaining a effects, clothing, parked, search war- any personal without not contain trailer argues rant. that because “the food, He bedding, or an electrical connection. sleep thin, persons, in- small, frequently There two foam rubber defendant, both cluding personal in the travel trailer. pads mattress reasons, curly try protect and to mattresses, lifting Special Agent one of elk,” by local being willow from eaten had a field It Velez discovered mouse. curtilage, it was clearing natural around chewing out rubber made a nest foam against trespass constitutionally protected from the mattress. under entry Appel- without a search warrant. argued, in support Brief at Because the Opening lant’s travel suppress, of his motion to that the natural clearing officers entered the with- protected by trailer “house” was a warrant, Barajas-Avalos main- out a Fourth Amendment unreasonable tains the officers observations it contained sеarches and seizures because determining cannot considered be and had been his two mattresses whether Detective Olsen’s affidavit set family sleeping quarters. as He members justify forth facts to the issuance sufficient clearing natural imme- contended that the Barajas-Avalos of a Mr. search warrant. diately surrounding the travel trailer was also that the affidavit does not set asserts “house,” of his curtilage protected probable forth sufficient facts to establish searches and observa- warrantless cause if the the officers observations tions Amendment. the Fourth during trespass onto Willow Tree their court denied the motion to district Farm are excised. suppress. It held that travel trailer question review de novo the We was not a because it did residence protected is whether an area of land under “harbor intimate activities associated those the curtilage the Fourth Amendment as and the privacies with domestic life house. United States v. John dwelling home.” court The district concluded son, (9th 895, n. F.3d 909 1 Cir. 256 home, since travel trailer was not a 2001)(en banc). indepen We also review surrounding clearing not a natural was dently a motion suppress. the denial of to against by law curtilage protected trespass Enslin, United States 315 F.3d enforcement officers. (9th Cir.2003). 1209 Barajas-Avalos Mr. as convicted are mindful that “evidence We charged in the indictment. He was sen- a direct which is obtаined as result of an in prison tenced to months followed 360 may illegal search and seizure not be used years supervised five The dis- release. cause probable to establish for a subse request trict his for a down- court denied Wanless, States v. search.” United quent ward departure. (9th Cir.1989) (cita 1465 F.2d Mr. timely appealed. has omitted). tions an affidavit contains When jurisdiction pursuant We have to 28 U.S.C. obtained, reviewing illegally evidence “[a] § § 1291 and 18 U.S.C. 3742. court excise the evidence should tainted the remaining, and determine whether un Ill provide tainted evidence would a neutral magistrate probable to issue a contends that cause Vasey, States v. Amendment warrant.” United Fourth officers violated his Cir.1987) (citation (9th right by entering F.2d omit privacy to the natural ted). clearing, in which travel trailer was Barajas-Avalos’s 31-40, argument Id. at 121 S.Ct. 2038. The Court “[wjhere here, held that

confuses and conflates two discrete Fourth the Govern ment uses a protections. general Amendment He has failed to device that is not in use, public explore demonstrate that he is entitled to a rever details of the home theory. previously It would have been quite sal under either true unknow intrusion, physical able person right privacy that a has a his without surveil house, lance is a ‘search’ presumptively and is dwelling temporary sleeping or unreasonable without a room, warrant.” Id. at quarters, whether in a hotel a trail 40, 121 S.Ct. 2038. er, area, in a in a public tent or on government рublic land not Broadhurst, In United States v. overnight camping. clearly It is also es (9th Cir.1986), F.2d 849 we held that “[i]t curtilage surrounding tablished may is clear that legally one have a suffi- person’s dwelling protected house is from cient in a place interest other than her own entry. an unwarranted The travel trailer house so as to extend Fourth Amendment clearing and the natural area surrounding protection from unreasonable searches and it on the Tree Farm fit in Willow did not (cita- in that place.” seizures Id. at 851 protected either on the dates that omitted). Broadhurst, tions category we ruled the officers entered the Tree Farm Willow person that a has standing challenge an without a search warrant. alleged “joint search if he or she has con- supervision” trol and place. Id. at right person of a privacy within concluded, however, 852. alsoWe that interior of a dwelling enclosed house is overflights conducted officers of a expressly protected governmental in greenhouse yards situated 125 from a two- by the Fourth trusion Amendment. The story residence did not constitute a search Fourth provides pertinent Amendment in requiring a warrant under the Fourth part of “right people to be secure 849-50, Amendment. Id. at 856-57. in ... ... against their houses unreason 483, searches and In California, able seizures shall not be v. Stoner 376 U.S. 84 ” 889,11 (1964), violated.... U.S. Const. amend. IV. S.Ct. L.Ed.2d 856 the Court noted that less than a tenant of a “[n]o States, In Dow Chemical v.Co. United house, or the of in occupant a room a 227, 1819, 476 106 U.S. S.Ct. 90 L.Ed.2d house, boarding guest a in a hotel room is (1986), person 226 the Court held that a protection entitled to constitutional against reasonable, “plainly legitimate, has a unreasonable and seizures.” Id. at searches objective expectation privacy of within the (citations omitted). 490, 84 S.Ct. 889 In ... buildings, interior covered and it is of Olson, 91, Minnesota v. 495 U.S. 110 S.Ct. equally clear that expectation is one soci- 1684, (1990), 109 L.Ed.2d 85 the Court 236, ety prepared to observe.” Id. at in overnight guest held an a residence added) (citation (emphasis 106 S.Ct. 1819 expectation privacy had a reasonable of omitted). States, Kyllo In v. United 533 protection under the of the Fourth Amend- 27, 2038, 121 U.S. S.Ct. 150 L.Ed.2d 94 entry ment. The Court held that the into (2001) concept the Court extended the respondent residence arrest objective expectation an privacy to bar an without arrest warrant violated the imagers the unwarranted use of thermal 96-97, Fourth Amendment. Id. at 110 detect infrared radiation to scan the interi- S.Ct. 1684. a through residence its walls to de- high Barajas-Avalos termine whether it contained agree intensi- We with Mr. ty grow marijuana used to lamps indoors. that “there is no Fourth Amendment rule as the common only for tradi- and the house is as old protection provides (citation omitted). The law.” Id. Court Appellant’s

tionally constructed houses.” matter, in if there Hester that “even had how- stated Brief at 15. In this Opening tresрass,” the information obtained been ever, of the interior prohibited no search “supposed officers who were on trailer occurred. unoccupied travel of the land,” by an was not obtained Hester’s protect- interior of An observation 58, at search or seizure. Id. illegal window, through even when ed structure 445. S.Ct. consti- by a does not flashlight, enhanced observation is tute a search when the Supreme confirmed the con Court place. open public an field or made from vitality “open tinued fields” doctrine 294, Dunn, 298, v. 480 U.S. United States States, 170, v. 466 U.S. Oliver United (1987). 1134, L.Ed.2d 326 107 S.Ct. 177-178, L.Ed.2d 104 S.Ct. demonstrated has not (1984). The Court stated in Oliver: “We his Fourth the officers violated conclude, deciding as did the Court Hes rights by viewing the interior Amendment States, government’s that the ter United through the travel trailer window upon fields is not open intrusion one of standing in an field. open while proscribed those ‘unreasonable searches’

by the text of the Fourth Amendment.” IV 177, 104 Id. at 1735. S.Ct. argues Oliver, further at when the officers arrived right privacy farm, there

that because is a “they past petitioner’s drove Oliver’s house, of a the interior “non-traditional” a ‘No gate house to a locked Tres- trailer, persons travel sign.” such as a which 104 S.Ct. passing’ Id. occasionally ‍‌​‌‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​​​​​​‌‌​‍spend night, marijuana area field was “bounded on Oliver’s woods, fences, surrounding protect a travel trailer is also all sides embank- curtilage any entry point from warrantless as the ments and cannot be sеen from ed 174, access.” at 104 sleeping quarters. public of the He maintains of Id. S.Ct. 1735. The Court held Oliver “an incriminating that the information re may legitimately individual demand the not trespasses sulted from officers’ the conducted privacy activities out of Tree Farm must be struck from Willow fields, in the area except doors immedi- He the affidavit. asserts that without the 178, ately home.” Id. at surrounding the during recitation observations made (citation omitted). 104 S.Ct. the not con trespasses, affidavit does facts tain sufficient to demonstrate that Oliver, distinguished the Court be- probable cause existed for the arrest of right trespass tween the law of and the Barajas-Avalos. privacy protected by the Fourth Amend- The this explained ment. Court distinc- States, 57, In Hester v. United 265 U.S. tion as follows: 445, (1924), 44 S.Ct. 68 L.Ed. 898 however, pri- Supreme right trespass, Court held that the The law forbids vacy open upon not intrusions person’s does extend to a land Fourth 59, at proscribe. fields. Id. 445. The Court Amendment would not For S.Ct. that “the special protection trespass instructed ac- law extends to instances where by the exclude right corded Fourth Amendment the exercise vin- houses, ‘persons, papers, legitimate in their no people privacy dicates interest. fields, Thus, open is not in the and effects’ extended case of rights protected general property by fields. distinction between the latter trespass mining the common law of have little whether the nаtural clearing was or to the applicability protected no relevance from a warrantless entry is the Fourth Amendment. whether the travel trailer was a “home.” We must decide whether the travel trailer 188-184, 104 Id. at S.Ct. 1735. those “harbor[ed] intimate activities asso- explained The Court Oliver that “the ciated with domestic life and the privacies distinguished ‘open common law fields’ Dunn, of the home.” 4, at U.S. 301 n. ‘curtilage,’ from the immediately the land 107 S.Ct. 1134. We note at the outset of surrounding and associated with the analysis our that there is no evidence that 180, home.” Id. at 104 S.Ct. 1735 (empha- the travel trailer was used a permanent added) (citation omitted). sis The Court or temporary home since 1993. It is un- “curtilage” defined the term as “the area disputed that officers were informed activity which extends the intimate asso- the Portland General Electric Company ‘sanctity ciated with the of a man’s home that it did provide not electrical service to ” 180, privacies and the of life.’ Id. at the Willow Tree Farm. Neighbors report- States, 1735 (quoting Boyd S.Ct. v. United police prior ed to the to the search that no 616, 524, 630, 116 U.S. 6 S.Ct. 29 L.Ed. 746 one lived on property. did (1886)) added). (emphasis any lights activity observe on the Dunn, In United States v. 480 U.S. daytime after the visitors left at (1987), 107 S.Ct. 94 L.Ed.2d 326 nightfall. During the time the officers Court held: conducted their surveillance of the Willow curtilage questions should be resolved Farm, Tree no one occupied the travel particular referenсe to four factors: overnight. trailer proximity of the area claimed to be Barajas Ramone slept testified that he home, curtilage to the whether the area in the travel trailer occasionally to work on is included within an enclosure sur- the Willow Tree Farm protect and to home, rounding the the nature of the curly willow trees elk. This occasion- uses to which put, the area is and the occupancy al did not demonstrate that the steps taken the resident to protect travel trailer “harbor[ed] those intimate the area from people observation activities associated with domestic life and by. passing privacies Instead, of the home.” added) (emphasis Id. 107 S.Ct. 1134 simply record shows that since 1993 the (citations omitted). occasionally travel trailer has used been Dunn, The Court in cautioned that: Barajas place a sleep per- while analytical these factors are useful tools forming farm undisputed chores. It is only that, degree any in given Barajas-Avalos’s that Mr. residence was at case, they upon bear the centrally rele- separate Portland, a location in Oregon. vant consideration —whether the area in totality The of the circumstances related question intimately is so tied to the officers, by the based on their observations home itself that it should be placed un- open from the field surrounding the travel der thе home’s ‘umbrella’ of Fourth trailer, were support sufficient to an infer- protection. Amendment ence that the travel trailer was not used as 301, Id. at (emphasis S.Ct. 1134 add- Therefore, a home. clearing the natural ed). surrounding protected was

In applying these trespass by factors to the instant the Fourth Amendment. The matter, dispositive question in deter- issuing district court did not err in based, marijuana in from an informant that was be- part, warrants

search ing grown inside house resembled officers while on the observations trailer, Id. at specific castle on a street. 1098. surrounding field the travel affidavit also indicated house’s on the Willow Tree trespassing after usage that of electricity was twice other Farm. neighborhood. in the Such excess homes marijuana being when was usage occurs V grown building. within a Id. affidavit brief, Barajas- In his reply allegations pair also that a contained that, contends if the information Avalos in found the house’s trash con- scissors trespasses in their obtained officers residue, marijuana emp- and that an tained redacted, Tree Farm is on the Willow reducer, ty pHof indoor bottle present affidavit does not sufficient “[t]he cultivation, found marijuana was in the uphold Ap warrant.” [search] facts Finally, at 1098-99. an individ- trash. Id. disagree. Reply Brief at 3. We pellant’s ual seen pur- seen at the house was also only allegation of di He asserts chasing grodan two boxes of cubes and illegal activity report rect based mylar, plant items used indoor sheets veracity. an informant of unknown We cultivation. Id. question prob de novo the whether review analogous This case is to Celestine. The allegedly cause after tainted able exists in this affidavit case contains sufficient has redacted from an information been to establish probable evidence cause Huguez-Ibar v. affidavit. United States of a warrant without consider- issuance (9th Cir.1992). ra, 546, 954 F.2d ing by the the observations made officers “The inclusion of tainted mere trespassing on the Willow Tree while not, itself, in an evidence does affidavit Farm. taint the warrant or the evidence seized known pri- The facts to Detective Olsen pursuant Vasey, to the warrant.” trespasses demonstrating proba- omitted). (citation “A F.2d at 788 review ble cause can be summarized as follows: the tainted evi ing court should excise April Detective One. Olsen whether the remain dence determine Agent began Poikey and DEA investi- provide untainted would ing, evidence gating reports Organization that an was magistrate probable neutral cause manufacturing methamphetamine in the (citation omitted). a warrant.” Id. issue Portland area. in support “An affidavit of a search war DEA agents On June Two. if, probable rant demonstrates cause under twenty-two pounds seized of metham- circumstances, totality it reveals phetamine at a methamphetamine lаbo- probability a fair that contraband or evi ratory located a residence Hills- of a crime found in particu dence will be boro, laboratory Oregon. This Celestine, place.”

lar United States belonging identified as to the same Or- Cir.2003) (9th (citation 1095, 1102 F.3d through ganization the statement of ar- omitted). restees, phone fingerprints and cell rec- ords. Celestine, upheld we the issu though “Cooperating ance of a search even Three. defendants” in- warrant Barajas- not Mr. allege regarding affidavit did facts formed the officers that Organiza- reliability of an unidentified informant. Avalos was member of The affidavit contained a Id. statement tion. agents phetamine. DEA independently Bishop,

Four. See United States v. (9th Barajas-Avalos’s Cir.2001) 919, Mr. involve- (holding confirmed 264 F.3d through tele- Organization in the ment that when a search warrant is an based on commu- phone showing records that he tip, reliability informant’s of the infor- other nicated with members who mation may be demonstrated in- through investigation. under corroboration). Thus, dependent police 23, 2000, Washington ‍‌​‌‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​​​​​​‌‌​‍On March the district court did not in concluding Five. err deputies Sheriffs recovered County Detective Olsen’s affidavit contained 2,322 empty pseudoephedrine bottles to support sufficient facts of a the issuance near a fence the southwest corner of search warrant without of- considering the o.n Farm. Tree Willow ficers’ observations while trespаssing Farm. 24, 2000, the Willow Tree April agents On DEA

Six. Barajas-Avalos purchas-

observed Mr. pounds of is a ing sixteen MSM. MSM VI agent methamphetamine. cutting Barajas-Avalos Mr. 12, 2000, also contends agents On June DEA Seven. that the district court Barajas-Avalos failing erred purchas- Mr. observed grant him a downward twenty-five pounds departure “based ing MSM. he [on] detriment suffers in confine “cooperating A in- Eight. defendant” ment based on his alienage.” Appellant’s Special July Agent Poikey formed Opening Brief 2000, Barajas-Avalos Mr. owned a Grove, Oregon

ranch of Forest west “A grant district court’s refusal to Organization was loca- departure discretionary a downward produce methamphetamine. tion to appellate free from review.” United 7, 2000, July agents On DEA Nine. Romero, (9th 1120, States 293 F.3d Barajas-Avalos that Mr. determined denied, Cir.2002), 1144, cert. 537 U.S. part Tree was a owner the Willow (2003) (citation S.Ct. 154 L.Ed.2d 844 Farm, examining after tax assessment omitted). matter, In this the district court records. “I expressly do have stated discretion 11, 2000, September On DEA Ten. on the are depart downward factors which observed Mr. urged by your attorney.” so well Counsel purchasing twenty-five pounds MSM. argued that the court should consider September On De- Eleven. Barajas-Avalos’s age, education, his his Special Poikey Olsen and Agent tective steady family, his his employment, truck pickup a black Ford observed conjunction “in ... minimal record owned alienage, that not the fact of ... will [he] Tree Farm. Willow be due that which is avаilable to others Bara- report The informant’s that Mr. deported.” who to be going are not jas-Avalos using was Tree Willow Farm manufacture The court considered each of these fac- methamphetamine the of- that this case did independently corroborated tors determined alia, investigation including, fall the heartland of other cases ficer’s inter outside presence pseu- involving jurisdiction of thousands of We have no empty aliens. doephedrine dumped bottles next to the to review the court’s exercise of its discre- refusing downwardly Farm purchases depart Willow Tree and his on tion in of a metham- of precursor argued three occasions based on the combination factors 1060 counsel, Barajas-Avalos’s possibility parole imposed without the of including Mr. alien. on a who was a first-time of- deportable

status as a defendant grams of 672 possessing

fender convicted VII 961, 994, 501 at 111 of cocaine. U.S. S.Ct. Davis, 370, v. 454 2680. In Hutto U.S. Finally, 370-71, 375, 703, 102 70 556 im S.Ct. L.Ed.2d maintains that the 360 month sentence (1982), upheld must vacated be the Court as constitutional posed court be Eighth cause it violates his Amendment defendant’s sentence of two consecutive right twenty years prison posses- free from cruel and unusual for to be terms of Barajas-Avalos has punishment. Mr. nev with the nine sion intent distribute to. felony or marijuana er been of a before convicted ounces and distribution of of argues cases, He marijuana. crime of violence. Supreme In both grossly dispropor sentence is extreme and Court determined that federal courts novo We review de the constitu tionate. review legislatively should be reluctant to tionality of a United States v. sentence. imprisonment terms of because mandated (9th Patterson, 615, 292 F.3d 631 Cir. fixing prison specific “the of terms for ‘properly province crimes ... 2002). within Harmelin, legislatures, of not courts.’” pro The Eighth Amendment 998, (quoting 501 at 111 S.Ct. 2680 U.S. vides that bail shall be “[e]xcessive Estelle, 275-76, 445 at 100 Rummel v. U.S. required, imposed, nor fines nor excessive 1133); Hutto, 374, 102 S.Ct. 454 U.S. at punishments cruel and unusual inflicted.” Patterson, also 292 F.3d at S.Ct. 703. See Const, determining U.S. amend. XIII. “In 9954 that a sentence of 188 (holding 631-32 Eighth whether sentence violates the imprisonment “grossly months of was not Amendment, must accord substan [courts] disproportionate” crime manufac- to the tial legislative deference to determinations turing marijuana plants, 100 or more con- Patterson, punishments.” of appropriate gravity and the sidering offense (internal quotations 292 at 631 F.3d omit penalty imposed fact that the at both ted). Eighth The Amendment “forbids range the minimum of the Guideline ... ‘grossly extreme sentences are maximum). statutory well below disproportionate’ to the crime.” Harmelin 957, 1001, was sentenced to v. 501 111 Michigan, U.S. S.Ct. (1991) 2680, imprisonment conspiring 360 for J., months (Kennedy, 115 L.Ed.2d 836 methamphetamine manufacture viola- concurring part concurring in the § tion of attempting 21 U.S.C. 846 judgment). narrow proportionality This manufacturing manufacture and metham- principle applies noncapital sentences. phetamine § 21 violation of U.S.C. 841. Id. 111 S.Ct. “[O]utside Based on the amount of a mixture contain- capital punishment, context of successful ing methamphetamine attributed to Mr. challenges proportionality partic Barajas-Avalos, punishment the minimum ular been exceedingly sentences have years imposed by imprison- statute is ten Ewing California, rare.” v. 538 U.S. 1179, 1186, ment each offense. 21 U.S.C. S.Ct. L.Ed.2d 108 (2003) 841(b)(1)(A). § Estelle, (quoting Rummel 263, 272, U.S. 63 L.Ed.2d S.Ct. of methamphetamine amount dictat- (1980)). ed a base offense level of 38. USSG See 2Dl.l(a). Harmelin, § Supreme upheld granted Court court two district prison possession as constitutional a of life in for the sentence enhancements: one (2) offense, firearms in connection with the did not anyone officers observe 2Dl.l(b)(l), § in spending night and one for obstruc- the trailer USSG when § justice, 3C1.1, bringing property approximately tion of observed the USSG ten Barajas- total to 42. or eleven times in the morning evening offense level Mr. hours; (3) neighbors him in and history placed reported Avalos’s criminal cat- that no (this lived egory only single prior I he had a one on the fact because is a evidence). imprison- conviction. mistatement of the misdemeanor an of 42 range ment offense level with is, The fact there people are this history a I category criminal is 360 country live electricity. who do without months court to life. district sen- Department The U.S. of Energy calculates tenced Mr. at the low end that 1.4% of U.S. households either do not guideline range. pay for or no electricity.2 have access to Admin., Coal, Energy Info. Office of Nu- Mr. was convicted of clear, Fuels, Electric and Alternate U.S. drug serious offenses. His sentence was Dept, of Energy, Energy Consumption consistent the Sentencing Guidelines. Energy Development Renewable Po- Barajas-Avalos’s at least crimes were ix, (2000), on tential Indian Lands as serious as those committed the de- http://www.eia.doe.gov/cneaf/solar.renewa- fendants in Harmelin and Hutto. His bles reviewing less severe. sentence was After /ilands/iland_sum.html. join I cannot an novo, Barajas-Avalos’s de sentence we that that opinion suggests is house npt grossly conclude that is not dispropor- it “home,” with protec- all constitutional tionate, Eighth nor does it violate the carries, tions that status because lacks Amendment’s ban cruel and unusual Moreover, here, electricity supply. an punishment. fact that the Portland General Electric AFFIRMED. Company officially provide not did service to trailer did mean that it was not FERGUSON, Circuit Judge, dissenting available; Barajas-Avalos’s testi- brother part: electricity fied on the tele- that”[t]here IV, III, I dissent from Parts and V of pole phone and we used wire to connect it majority opinion. trailer.” The majority government say holds that the I also is not cannot a house agents permitted protec- full infer entitled to Fourth Amendment trailer was not used as a home1 from three tions because residence it is not continu- (1) facts: Portland migrant General Electric ous. Both farm workers and provide service; Company wealthy did not electrical in Ha- people with second homes inference, according "severely 1. Because of this occupied million renter households 725,000 majority, inadequate” housing could the area treat units and owner field,” "open around the trailer rather than Policy Dev. households did so. Office of home, Research, curtilage as the of a thus Dept, did not U.S. of Hous. and Urban peer Dev., need a warrant into the trailer Housing Rental Assistance—The Wor- through flashlight. with a window sening Report Congress Crisis: A Worst Needs, (2000), Housing app. Case at A-2 http://www.huduser.org/publications/affhsg/ Department Housing 2. The U.S. and Urban Development many report, In the unit has also found worstcase00.html. Amer- severely inadequate icans live without basic services. A recent considered to be if it had that, report problems heating, HUD plumbing, indicates over a severe in its (who Additionally, por- that very I am concerned different reasons— waii —for may be un- majority opinion tions in one would one season house spend Fourth suggesting as that our another) derstood in have the next the same season analysis curtilage might ap- of Amendment in resi rights and around them privacy in some different manner to what the ply only with one home. See people dences as “dwelling terms than majority a house” to (9th Nelson, 762 F.2d 1318 LaDuke v. sleeping quarters, whether “temporary Cir.1985) (holding that Border Patrol room, trailer, a or in a tent a hotel by the agents violated Fourth Amendment correct, area.”3 cannot as public This be units migrant housing farm searching directly it contradict our rule in would consent). not occupants’ It is without the Nelson, v. 762 F.2d at 1326 n. LaDuke enough say unoccupied that house is to does not that “the Fourth Amendment now, unoccupied lately; or hous has been differen- permit government agency] to [a acquire legal do the status of barns es not per privacy basis in the tiate on se temporary during or warehouses ab housing.” of accorded different stocks See of their owners. This is true even sence States, Fung Eng v. United also Jem extended, long is so as where the absence (“The (9th Cir.1960) 803, 805 tran- F.2d not been abandoned. has Cf. stay in appellant’s of the room does sience (9th Wilson, 472 F.2d 901 United States pro- not dilute force of constitutional Cir.1972) (holding that a tenant de who right privacy .... must tection be property, having left the door parted the equal vigor both to transient accorded unpaid, and the rent did not have occupants guests private, hotel and to of object to of standing to a search the aban permanent dwellings.”). premises). doned that LaDuke held Border Patrol majority states that Bara- Finally, farm migrant housing searches of units jas-Avalos’s neighbors police told the that occupants. required consent fact, one property. no lived on the at F.2d 1327-28. Some Agent Poikey that the held flash- neighbors searches unconstitutional were testified searches, here, light as is the case and not knowledge anyone “said had no physical intrusions of interior of the living housing there.” Given that the unit 1327-28, at There units. Id. n. 19. is by all question was surrounded on sides that suppose no reason we meant vegetation thirty-acre par- trees curtilage from our except statement re- land, it hardly revealing cel of rural is garding equal of “privacy level accord- neighbors no knowledge anyone had housing,” ed different stocks of since this living in I would the trailer. therefore Amendment analysis of Fourth is area nec- hold no government that the had informa- implicated essarily ap- when a home by tion legitimately which could have proached government agents but not that the trailer was not a home concluded entered. subject privacy protections to all of the reasons, afforded homes the Fourth Amend- For all of these I dissent from opinion. III and majority ment. Parts IV of the correct, system, many people as upkeep, hallways. electrical Id. at do reside in trail- A-20, (as A-28. well other ers as in non-traditional hous- units) ing long stretches of time. For appears every majority 3. The to assume that instance, Barajas-Avalos’s " brother testified house, 'non-traditional' such a travel he lived the trailer issue in this case trailer,” place persons is a which occa- "in September December is, course, sionally spend night.” This however, I from Part majori- also dissent V of the originated bottles had ty opinion. Once the observations made from the Willow Tree Farm property. trespassing the officers while Willow Barajas-Avalos’s fingerprints were redacted, Tree Farm are the affidavit sub- not bottles, found on the and the bottles support mitted in of the search warrant were not found among trash known to does not contain sufficient evidence to es- originated have from Willow Tree Farm. probable tablish cause. contrast, ‍‌​‌‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​​​​​​‌‌​‍By Celestine, in the scissors con- taining marijuana residue and empty majority’s analogy The to United States pH bottle of reducer were found in the Celestine, (9th Cir.2003), 324 F.3d 1095 trash, house’s and the electricity excess legitimately fails. The facts available to consumption was directly from the house. government in that pointed case far The evidence established a clear link be- directly presence more of illicit drug tween marijuana the indicia of use and the activity property on the in question than property in question. No such direct link notes, was the majority ease here. As the exists this case. the affidavit in Celestine indicated that a pair marijuana cоntaining scissors resi- government agents’ inability to find (a due an empty pH bottle of reducer any such evidence is all the more striking marijuana substance used indoor culti- given the extensive surveilance of the vation) trash, were found in the house’s property. had surveiled Wil- house consumed twice the electricity of low Tree Farm from a neighboring parcel (an neighboring houses indication of an of land in morning and evening hours indoor drug-growing operation), and an in- approximately ten or eleven prior times dividual driving was observed from the entering property September store, a hydroponics house to where the 2000, and property surveiled the another purchased individual items indoor to eight six times completing before plant cultivation. Id. at 1098-99. The search warrant affidavit on .October 11. that, Celestine court together, held taken All that this lengthy surveillance revealed the evidence an adequate “established] 1) presence was of a pickup black Ford basis to conclude that drug evidence of truck owned Mr. on the growing would be found in the house.” Id. 2) Willow Tree Farm pots the sound of at 1102. pans. paltry Given the amount of Here, contrast, there was link little to evidence government agents were able Barajas-Avalos’s the evidence of Mr. in- to obtain weeks-long from their surveil- volvement in methamphetamine-manu- lance of the property, it is no wonder that faсturing organization with the Willow they tempted property to enter the Tree Farm property. Aside from the fact without obtaining first a search warrant. that Mr. was a part-owner tempting been, However it may have in the property and a statement so, should not have done for the reasons “cooperating defendant” alleging that already stated in this dissent. methamphetamine was being produced on Celestine, Barajas-Avalos’s Unlike in- property, only confidential linking Barajas- evidence formant’s statement Willow Tree Farm with the production Avalos’s methamphetamine was used for metham- large quantity of empty pseudophed- phetamine insufficiently manufacture was dumped adjacent rine bottles public corroborated and was thus insufficient to land. indicate, There was no support evidence to the issuance of a search warrant. III, IV, respectfully from Parts

I dissent majority opinion.

and V of America,

UNITED STATES

Plaintiff-Appellee, RIVERA-GUERRERO,

Abisai

Defendant-Appellant.

No. 04-50115. Appeals,

United Court of States

Ninth Circuit.

Argued 2004. and Submitted June July

Filed natural it The notes clearing the trespass by legitimate that individuals have no ex- protected was not fields,” pectation privacy “open Fourth Amendment. The district court area issuing exception did not err the search war- with the of “the immedi- home,” based, i.e., part, ately surrounding rants on the observations curtilage. of the officers while on the field home’s Oliver v. United States, 170, 178, trailer, surrounding the travel after tres- 466 U.S. 104 S.Ct. (1984). on the Tree Farm. 80 L.Ed.2d passing Willow correctly analysis.1 ment majority Consequently, also concludes peering the trailer on the Willow Tree through the window would have been a a home. property Farm was not Fourth Amendment violation because agents federal who searched trailer the officers so who did would have been no no provisions, found food dishes or present in curtilage of a home with- utensils, cooking appliances in- and no out a search warrant. sheets, blankets, side. There were no For us to ratify flashlight search bags or pillows, sleeping the beds. in this case because the results of the short, nothing there was within the search proved structure in being trailer to indicate that it was question say was not a home is to at the time for a home. presence or of a Fourth absence home, Given that was not a the trailer depends Amendment violation on what majority says, clearing natural “the government agents find looking after surrounding protected.” it was not through the of a window structure and They agents claim that federal had com- not before. mitted no Fourth violation Amendment This problem presented by is the clearing, including the area because government’s case, action this trailer, immediately adjacent is a significant majority’s one. The field” “open “curtilage” and not opinion problem by eliminates the hold- home. ing structures,” that “non-traditional However, the federal investi- such as “a guest those inhabited in a Farm gating the Willow Tree hotel, residence or an overnight not able to this information obtain camper,” curtilage, have no and such

Case Details

Case Name: United States v. Piedad Barajas-Avalos, AKA Piedad Barajas-Avaslos

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 26, 2004

Citation: 377 F.3d 1040

Docket Number: 02-30301

Court Abbreviation: 9th Cir.