In Louisiana, officers received a report from an informant that the defendant was operating a meth lab in a shed behind his house and cooks started at midnight. Officers staked out the area and attempted to approach from open fields. They turned on lights of their cars and yelled to the defendant to try to flush him out, and he was arrested and they searched. The trial court suppressed and the appellate court affirmed, finding that the area was within curtilage (although the record was deficient, so the trial court’s findings got deference) and not open fields. The officers’ two day wait belied exigency. State v. Hemphill, 942 So. 2d 1263 (La. App. 2d Cir. November 17, 2006):
The Tip and Entry on Curtilage:
In this case, the anonymous tip provided some information that predicted criminal activity as well as merely descriptive information. The caller stated that Mr. Hemphill ran a meth lab in a shed south of his mobile home and that the methamphetime “cooks” generally started after midnight. Det. Pittman was able to confirm activity after midnight in the shed and associated that activity with meth production by the smell of what he said was ether, but not before entering the defendant’s backyard and moving near the shed. The state attempted to establish that Det. Pittman corroborated the requisite predictive elements of the tip before entering defendant’s yard by establishing that Det. Pittman saw the mobile home and some kind of other structure “upon arrival of the officers.” However, the testimony of Det. Pittman indicates that he only identified a mobile home and some unidentified structure. These are merely general descriptive facts not predictive of any criminal activity. See Florida v. J.L., supra. The existence of a mobile home residence and a structure in the backyard is commonplace in Louisiana, particularly in outlying areas.
We also observe that a photograph in evidence shows that the property was partially enclosed with a privacy fence. The officers entered the defendant’s property from the unenclosed portion of the yard that appears to be the backyard of the defendant. Det. Pitman testified that the yard was clearly distinguishable from the field by the grass, so he clearly knew he was entering the yard of the defendant.
Although the district court found that the defendant was adversely affected by the agents’ entry into the neighboring property as well as the defendant’s property without a warrant, it did specifically state that it had determined that crossing into the defendant’s yard itself was a violation of the Fourth Amendment. There has been no argument on appeal that the backyard constituted “open fields,” that is, the land outside the curtilage of the home and was therefore excepted from the warrant requirement of the Fourth Amendment since it is entitled to no more protection than public land. Oliver v. U.S., 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984). Nor has it been argued that the backyard was within the curtilage and therefore protected.
. . .
Although the evidence in this record to make a determination on this issue is weak, applying an objective standard, we conclude that the defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation, according to Det. Pittman. It was after midnight when the agents were sneaking furtively around the defendant’s yard, thereby creating the possibility of a violent confrontation. We also note that the state prosecutor was clearly concerned by the entry into the yard because she tried to establish that the MNU agents confirmed predictive elements from the anonymous tip before entering the defendant’s property. This was clearly not established, however, and Det. Pittman testified that the yard was clearly distinguishable from the field and other testimony and evidence indicates that there were some steps taken by the defendant toward privacy. Accordingly, we must conclude that the trial court was not clearly wrong in its finding that the defendant was adversely affected by this entry. We further conclude that the state did not carry its burden in showing that the warrantless entry into the yard was justified by the agent’s corroboration of some of the descriptive information from the anonymous tip.
Probable Cause Based On the Smell of Ether:
Even if we were to assume that the warrantless entry into the defendant’s yard was justified, the next issue is whether the agents obtained probable cause to search or arrest the defendant without a warrant. As stated above, the anonymous tip provided some predictive information regarding the defendant’s criminal activities, namely, that the defendant was operating an active meth lab and the meth “cooks” generally began after midnight. The agents arrived at the scene about 12:30 AM. Once in the defendant’s yard, they observed, with night vision equipment, a male walking from the trailer to the shed. Det. Pittman testified that he saw the person make three trips back and forth, ending in the trailer, while the defendant testified he only made one trip from his trailer to the shed. At this point in the investigation, there was at least partial confirmation that there was some activity taking place after midnight, albeit nothing criminal at this point. Detectives positioned themselves to the west of the shed, and Det. [Pg 18] Pittman said that they smelled a strong odor of ether, but they could not pinpoint the source of the odor. It appeared to be coming from the general direction of the trailer and shed because the wind was from the east. Based upon his experience in drug enforcement, Det. Pittman knew that ether is used in the production of methamphetamine, and his past experience was that this confirmed the existence of an active meth lab. The agents then moved closer to the shed and Det. Pittman said that the smell of ether was stronger and he heard activity in the shed that sounded like what could have been someone sharpening mower blades and he did not associate it with meth lab activity. Nevertheless, he associated the activity in the shed with an operating meth lab because of the odor from the shed and the fact that there was some activity in the shed, although its exact nature was unknown.
Because this information tended to corroborate the predictive information from the anonymous tip, that is, activity after midnight and the odor associated with methamphetamine production, we conclude that the MNU agents had probable cause that would justify obtaining a search warrant to enter the shed. Det. Pittman, however, elected not to obtain a search warrant. Rather, he decided that he would flush out the defendant from the shed and shut down the meth lab. The state contends that his decision was justified based on exigent circumstances.
Exigency, Seizure of Defendant, and “Plain View” or “Plain Smell”:
A warrantless search is per se unreasonable unless the police are able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. United States v. Richardson, 208 F.3d 626 (7th Cir. 2000). A police officer’s subjective belief that exigent circumstances exist is insufficient to justify a warrantless search; instead, the test is an objective one. See U.S. v. Richardson, 208 F.3d at 629 (7th Cir. 4/3/00); U.S. v. Elder, 352 F. Supp. 2d 880 (C.D.Ill. 1/19/05). As previously stated, exigent circumstances may arise from the need to prevent the offender’s escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, supra; State v. Hathaway, 411 So. 2d 1074 (La. 1982).
The district court found that exigent circumstances did not exist to justify the actions of the police. The court believed that exigency based on the concern of police for safety was “watered down,” inasmuch as the agents waited two days before investigating the tip. The state argues that the deputies entered the defendant’s shed to look for the defendant for the purpose of ensuring the safety of Mr. Hemphill, the agents near the shed and the neighbors in the house next door.
According to Det. Pittman, he decided to shut the operation down after he smelled ether and the activity he heard in the shed. He first attempted to lure the defendant out of the shed by sending for the units that were held back, telling them to come down the driveway with all lights. After positioning himself and the other agents by the shed door, Det. Pittman either opened the door himself, or when defendant opened the door, he reached into the shed and pulled the defendant out. On the one hand, he testified that he did not really take time to look into the shed from the doorway because he was handling the arrest of the defendant. On the other hand, he testified later that he was able to see and smell ether emanating from the meth lab located in the unlighted shed 30 feet from the door in the back corner. Subsequently officers found two unopened containers of ether and a meth lab set up in the shed. Defendant contends that the officers were smelling anhydrous ammonia, which is used in the meth cooking process, and which the defendant admits he was mixing.
We agree with the district court that the agent’s actions were unjustified on any of the grounds constituting exigency. First, there was no likelihood of escape. Det. Pittman and four other agents were present at or near the shed. Additional officers were waiting “there for Mr. Hemphill,” presumably to take Mr. Hemphill into custody or to assist in case Mr. Hemphill attempted to escape. Second, once the agents smelled ether and heard activity going on inside, they could have obtained a search warrant provided their intrusion into the yard was justified. If the officers were concerned with safety, they could have moved to a safe distance from the shed and evacuated the neighbors, if they were indeed threatened. Third, the officer’s concern for Mr. Hemphill’s safety is indeed watered down by the two-day delay investigating the tip.
Hence, we conclude that the district court’s determination that exigent circumstances were not present to justify the warrantless arrest of Mr. Hemphill was not plainly wrong.
We also reject the search of the shed based on “plain view” or possibly “plain smell.”
Search of car by consent was not overly intrusive because the search did not materially alter the car as prohibited by NY law. People v Reed, 2006 NY Slip Op 8588, 34 A.D.3d 1364, 825 N.Y.S.2d 600 (4th Dept. 2006).*
A reasonable person would have felt free to leave, so the stop was not extended by the officer’s actions. Saldivar v. State, 209 S.W.3d 275 (Tex. App. — Ft. Worth November 16, 2006).*
