is whether the property itself was intended to be used for domestic purposes or at least for a home owner's purposes as the court this was real property with a large open space in a marijuana garden in the back i submit to the court that there was a natural enclosure of the entire property it wasn't a situation where there w of the ninth circuit cases deals with a natural barrier and the question is whether a natural barrier might constitute an enclosure for the purposes of credibility i would submit to the court that we've assume and as we must that the residence which is in the lower part of this exhibit the residence was built before the marijuana the purpose of building the residents must be assumed for solitude which is the use of intended by the homeowner who built this house to come out to be in the wilderness or to be and is to be in an environment other than an urban environment that would be the intended use of the property and us got to change it seems to me the pending upon where it is and whether it is so it's not really fair i don't think to say that this residence doesn't have a picnic table  residence doesn't have a sheet pan or chickens or doesn't margolies that it doesn't have a telephone or like this or well i don't think the fact that i don't in this particular case i'm not sure that that really makes a difference because it's a first cousin to tool shed it's a first cousin first cousin the government concedes it it's brief continues in its brief this is a residence the officers understand somebody  particular case the majority seem to say that the open fields are not what we are deciding the case on we're deciding the case on the back of the so called residence wasn't back not a residence traditional nontraditional didn't really make any difference but the large open expanse of land would have been within the curtilage that's where the observations had been made it would have been within the curtilage had this been a residence as we understand residence to mean in the context of i'm just curious this is an open area where the parameter of ownership here and who has access to the road  and that would be the only way to get onto this for sure that's correct there was some argument or discussion in the on some discussion in the in the district court about whether and i'm not sure this is in the record i've read a fair amount of the testimony but i'm not sure i read all of it there on this point and it may or may not be in the record if you're standing on the road when the house right up there by the little blue glowing but you're standing on the wish with some fear and trepidation and then a couple of suggest a possible likely issue which occurred to me yesterday driving up here and would possibly ask  well below what would have been the defendant was was sentenced to the mandatory minimum five years his guideline range well below what would have been sixteen months it was somewhere i think in the filed in february my reply brief was filed april twenty eighth two thousand and four and i was aware of this court i became aware of this court's recent decision requesting the let stated on page eighty five of the transcript just looking at the photos there is no way that the garden is part of the curtilage just prior to that the district court observed instead of the marijuana garden being part of the house the house seems to be an appendage that's used while people are working on this garden it's your script the search affidavit down to its barest minimum  could you have alleged in front of the magistrate that an aerial surveillance was made of the property by two officers and that they believe that th in response to that the sheriff's office said up to individuals now there experian he's in detail it all but i think the magistrate if faced with that situation could reasonably assume that the sheriff would send up two persons with some experience if they're looking for a marijuana guard and think they enter a property through a gate as opposed to sign no trespassing they may meet a person at the gate who said you're not welcome here stay out and they just reached the road and decided to drive on out right well i don't i don't believe the record fully indicates what the person at the gate told them but they did meet a person at the gate who was in the process of closing it but your honor the witness testif made a preliminary search of the residence property looking for firearms and other contraband and and then went and got his warrant and then came back and did the thorough search where he found the document that led to the other page eighty three and that's supplemental excerpt of record page eighty three the next factor is one of the areas within a closer surrounding the home and it's not here the only argument can be made with there's a fence below which is about a half a mile away basically the evidence was clear that there was a sixteen foot wide gate at the entrance i believe it's exhibit d which is part of the supplemental excerpt of record shows that you could walk right around that gate if you wanted to a car couldn't drive through it of course but at the the defense investigator estimated the marijuana garden was three hundred fifty feet from the structure and one of the detectives who actually walked that estimated it was six hundred feet the district court determined it was somewhere between that but he said it was at least three hundred seventy five feet and rightly so basically the judge should determine the based on the distance based upon the lack of any enclosure other than that gate preventing cars from driving into the driveway and the fact that there is no evidence whatsoever in this record that that garden and that area around the garden is used for anything other than to grow marijuana out of first part of the property search down was for garden and in the residence subsequent yes the residence your honor after a while the guard was back in the event that if the court two roads have to be crossed to get there the third issue which is quite clear is that the area of the marijuana garden was not being utilized for anything that traditionally would be tied to a of course correct it does provide some linkage not the kind of linkage that a fence would or or something a little more positive but of course correct it provides a linkage indicating and i think this actually works to the favor of the lack of  alleged utilizing the third factor the use the only use for this grow marijuana it was not used we might made a difference if the marijuana was interspersed with some other kind of education well i think it could have certainly i don't know if that would be dispositive or not but let's say that there were home grown tomatoes and cucumbers and that they looked like they were being well kept and they looked like it was something that would be tended to least on occasion was not rural area not clear where the best cultivation area would be for a garden but if that's in a royer where the water would be best allocated to actually generate quickly answer answer each of them first if i may if i stated that the most important factor was the proximity or lack thereof i misspoke basically all four of these factors are important i don't think that any of them are one point in the other but it is an important factor curtilage and they based part of their finding upon the fact that this was a rural area and not an urban or suburban area so i can see that that makes good sense but the case law is clear that even in an urban area the current list doesn't go on forever th but there was none so what i would basically answer the court if they had done it yes it would have made their case much stronger but they didn't do it and i was so much of the court that the only factor that appears to be at all in favor of way how close to the end of his new term of incarceration is he you know he was incarcerated i believe it was early october of two thousand and two so it's almost been two years i haven't done this in my head but  submit to the court that at this point in time i don't think that's an issue but it might very well become one while this case is still pending before the court but without without holding it to a commitment you have a government and meter and there was also some reference to that in the transcript itself there was testimony about that and as i look at the pictures and i have read the testimony it's pretty clear that there's a fairly effective very are against the vehicle driving along although not a particularly thank you very or somebody is willing to case is united states versus allow at all