In the

United States Court of Appeals

For the Seventh Circuit

No. 01-3612

United States of America,

Plaintiff-Appellee,

v.

 

Aaron L. French,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. CR 00-20032-01--Michael P. McCuskey, Judge.

Argued February 19, 2002--Decided May 28, 2002

 Before Coffey, Easterbrook, and Diane P.

Wood, Circuit Judges.

 Coffey, Circuit Judge. Probation Officer

Steve Kelly came to Aaron French’s

property in Humboldt, Illinois, in search

of Richard Hensley, a delinquent

probationer. While searching for Hensley,

Kelly observed evidence of a

methamphetamine lab upon Aaron French’s

property. Kelly notified Illinois law

enforcement officers who obtained a

search warrant and discovered a

methamphetamine lab as well as

unregistered weapons in a shed on the

property. French was charged by a grand

jury sitting in the Central District of

Illinois in a six-count indictment with

various drug- and gun-related offenses.

French filed a motion to suppress and

argued that the evidence seized from the

shed be suppressed because the law

enforcement officers obtained the search

warrant based upon information that Kelly

had obtained in violation of French’s

Fourth Amendment rights. According to

French’s argument, Probation Officer

Kelly made his observations of the

methamphetamine lab from within the

curtilage of French’s residence, thereby

conducting an illegal search. The trial

court denied French’s motion to suppress,

ruling that Kelly was not within the

curtilage of French’s home when he

observed the methamphetamine lab. French

later pleaded guilty, but reserved his

right to appeal the trial court’s adverse
determination of his motion to suppress.

French appeals that determination. We

affirm.

I. Factual Background

 On November 22, 1999, Probation Officer

Steve Kelly went to Aaron French’s

property in Humboldt, Illinois, in an

attempt to locate Hensley, his

probationer. Kelly had previously been

assigned to Hensley’s case as his

probation officer, but for three months

Hensley had failed to report to Kelly as

the conditions of his probation required,

and Kelly’s attempts to locate Hensley up

to that point had been unsuccessful. But

on that day, Hensley’s mother and sister

informed Kelly that Hensley often worked

at defendant-appellant French’s residence

as a vehicle mechanic. After learning

that Hensley might be working on French’s

property, Kelly drove to French’s

Humboldt property, accompanied by two

additional probation officers, Vicki

Starwalt (Kelly’s supervisor) and Jana

Pamperin, in search of Hensley. 

 When he arrived at French’s residence,

Kelly pulled onto an open gravel

driveway. There were neither gates, nor

fences, nor barricades obstructing or

otherwise preventing the public from

entering upon the driveway from the

public road, nor were there any "no

trespassing" signs posted on or around

the drive. The structures on the

defendant-appellant French’s property,

which were in plain view, consisted of a

mobile home or trailer, which French used

as a residence, a shed connected to a

"lean-to," a three-sided structure that

was partially covered by a shredded tarp

on the one open side (serving as a

curtain to hide the interior from view),

and a second shed. The shed and lean-to

were located at the south end of the

drive, opposite the trailer, and faced

west. The trailer faced the shed and

lean-to structure and a gravel walkway

approximately 20 feet in length connected

the two structures. A second gravel

walkway connected the trailer and the

second shed, located in the southwest

corner of the property. A brick and

gravel walkway led from the drive to the

front door of the trailer.

 Kelly parked in the gravel drive, thirty

to forty feet from the shed. His
accompanying officers, Starwalt and

Pamperin, remained in the car while Kelly

exited the vehicle in order that he might

locate and speak with Hensley. Upon

exiting his vehicle, Kelly observed a

person working on a vehicle at the south

end of the drive approximately five (5)

feet from the shed and lean-to, but Kelly

was unable to see him clearly as the hood

of another vehicle obstructed his view.

Having been informed that Hensley might

be working as a mechanic at the French

property, Kelly decided to approach this

person (rather than proceed directly to

the front door of the trailer) to

determine whether the person was the

probationer, Hensley. As Kelly approached

the unidentified person working on the

vehicle, he also observed another

individual whom he recognized as

probationer Kevin Morlan run from the

lean-to into the adjoining shed, which

was unlocked at the time. Kelly had

encountered Morlan but two weeks earlier

at another location during a search of a

methamphetamine lab where a .45 caliber

automatic pistol was confiscated. Kelly

immediately became suspicious of Morlan’s

behavior and decided that in order to

ensure his safety he would order Morlan

to exit the shed before he attempted to

question the individual working at the

parked vehicle. Using the gravel walkway

that connected the trailer and the shed,

Kelly approached the open entrance of the

shed where Morlan had entered. As Kelly

approached, he noticed through the open

door that Morlan had placed his hands

inside his pants pockets and thus ordered

Morlan to remove his hands from his

pockets and to exit the shed. Morlan

complied in part, exiting the shed, but

continued to conceal his hands in his

pockets. Kelly noticed a rifle located on

a bench inside the shed from his vantage

point on the walkway. Kelly escorted

Morlan to his car and upon searching him

found two shotgun shells and a .44 magnum

shell on Morlan’s person. Morlan remained

uncooperative and refused to answer any

questions regarding the whereabouts of

Hensley. Because of the potentially

dangerous situation, Kelly asked his

supervisory officer, Starwalt, to call

for assistance. 

 After patting down and restraining

Morlan, Kelly observed another individual

slumped over inside a second vehicle

parked on French’s driveway. As Kelly
approached the car, he noticed that this

person (later identified as Eric Collins)

also had his hands in his pockets. When

Collins removed his hands, Kelly heard a

"pop," which he soon learned was the

sound of a light bulb breaking in

Collins’s pocket. Collins admitted that

he had used the lightbulb to smoke

methamphetamine and, upon Kelly’s

request, consented to a search of his

vehicle.

 Shortly after Collins admitted to having

been smoking methamphetamine, two police

officers and a state trooper arrived and

Kelly briefed them on the situation.

Having secured both Morlan and Collins,

Kelly returned to question the individual

who had continued to work on the vehicle

parked near the shed. Kelly approached

the unidentified person repairing the

vehicle, and the individual identified

himself as Nicholas Jordan. Kelly asked

Jordan whether he had seen Richard

Hensley, and Jordan denied having seen

him. As Kelly questioned Jordan, he

detected a strong odor of ether emanating

from the shed, approximately five feet

away. When Kelly turned toward the shed,

the door of which was still open after

his earlier encounter with Morlan, he was

able to view the inside of the shed and

observed fuel cans, glassware, and

tubing, all used in the manufacture of

methamphetamine. Kelly never entered the

shed, nor the lean-to. 

 Kelly reported his observation to the

law enforcement officers who were still

present in response to Starwalt’s

previous call for assistance. Based on

Kelly’s observations, the officers

approached the trailer to further

investigate the possibility that the

property might shelter a methamphetamine

lab. French’s wife, Brandy French, gave

the officers consent to search the

trailer, but told them she did not have

access to the shed. The officers searched

the trailer and secured the area around

the shed and shortly thereafter obtained

a search warrant for the purpose of

searching the shed for evidence related

to a methamphetamine lab. During the

ensuing search, the law enforcement

officers discovered and seized illegal

firearms as well as items used in the

manufacturing and processing of

methamphetamine. Kelly left the scene

shortly after the law enforcement

officers obtained the warrant, having
failed to locate probationer Hensley.

 Several months later on April 4, 2000,

Kelly returned to French’s property once

again looking for his parolee, Hensley

(who had served a jail sentence for his

November 1999 failure to report to Kelly

and upon release had remained A.W.O.L. in

failing to report as required). When

Kelly arrived at the property, he

observed two men walking from the trailer

to the shed. Kelly walked up the gravel

walkway to the shed and asked the person

inside to come out. Eventually, Ricky

Bell, who later became a co-defendant of

French, exited the shed. As Bell emerged,

Kelly became aware of a strong chemical

odor emanating from the shed and was able

to observe items used in the manufacture

of methamphetamine inside the shed.

Illinois drug agents were called to the

scene and obtained defendant French’s

verbal and written consent to search the

trailer, shed and lean-to. During the

search, agents once again found drug

paraphernalia used in the manufacture of

methamphetamine as well as illegal

firearms.

 On June 9, 2000, a grand jury sitting in

the Central District of Illinois charged

French in a six-count indictment with two

counts of the attempted manufacture of

methamphetamine in violation of 21 U.S.C.

sec. 841(a)(1) and sec. 846, possession

of a firearm in furtherance of a drug

trafficking offense, 18 U.S.C. sec.

924(c), two counts of possession of a

firearm with an obliterated serial

number, 18 U.S.C. sec. 922(k), as well as

possession of an unregistered shortbarreled shotgun, 26 U.S.C. sec. 5861(d).

A superseding indictment charged French

with the six counts recited above as well

as an additional count of conspiracy to

manufacture and distribute

methamphetamine, 21 U.S.C. sec. 846.

 On August 23, 2000, French moved to

suppress the evidence seized during the

November 22, 1999, and April 4, 2000,

searches, alleging that Probation Officer

Kelly invaded the curtilage of his home

for the purpose of determining the

existence of the methamphetamine lab and

thus violated the Fourth Amendment

prohibition against warrantless searches.

During a three-day hearing on French’s

motion to suppress held on various days

in September and October 2000, French
presented ten witnesses who testified in

support of his theory that Kelly’s

observations were made from within the

curtilage of French’s property and thus

violated the Fourth Amendment. On the

other hand, the government offered the

testimony of Probation Officers Kelly and

Starwalt who testified that Kelly neither

entered the shed nor the lean-to but

instead merely made observations from

outside the shed while he stood on the

gravel drive and walkway of the French

property. The trial court made extensive

findings of fact and credibility

determinations, and found that the

general public had access to both the

gravel drive and the walkway and that

there were no barriers, obstructions or

"no trespassing" signs to limit the

public’s access to the drive and walkway.

The trial judge further found that the

drive and walkway were not related to the

intimate activities of the French home.

The trial court also ruled that the drive

and walkway were located outside the

curtilage of the home. Because the trial

judge found that Kelly was on the

property for the legitimate purpose of

searching for his errant probationer

Hensley, restricting his movement on the

property to an area where the public

would be expected to enter and making his

observations based upon what was within

his plain view and smell, he concluded

that no unreasonable search had occurred

and denied French’s motion to suppress

the evidence collected during the

November 22, 1999, and April 4, 2000,

searches.

 After the trial court ruled against

French on his motion to suppress, French

entered into a written plea agreement

with the government and pleaded guilty to

one count of attempting to manufacture

methamphetamine, 21 U.S.C. sec.sec.

841(a) & 846, and one count of possession

a firearm in furtherance of a drug

trafficking offense, 18 U.S.C. sec.

924(c). In the plea agreement, French

reserved the right to appeal the trial

court’s denial of his motion to suppress

evidence. 

II. Issue

 On appeal, French argues that the gravel

walkway from which Kelly made his

observations was within the curtilage of

his residence and entitled to protection
from unreasonable searches and seizures

under the Fourth Amendment to the United

States Constitution./1

III. Analysis

 We review a trial court’s findings of

fact in a suppression hearing for clear

error and its conclusions of law and

mixed questions of law and fact de novo.

United States v. Meyer, 157 F.3d 1067,

1079 (7th Cir. 1998). A factual finding

is clearly erroneous "when, although

there is evidence to support it, the

reviewing court on the entire evidence is

left with the definite and firm

conviction that a mistake has been made."

United States v. Gravens, 129 F.3d 974,

978 (7th Cir. 1997). Because the

resolution of a motion to suppress is

necessarily fact-specific, reviewing

courts give special deference to the

trial court that heard the testimony and

had the best opportunity to observe the

witnesses at the suppression hearing. Id.

"We do not second-guess the [trial]

judge’s credibility determinations

because he or she has had the best

opportunity to observe the verbal and

nonverbal behavior of the witnesses

focusing on the subject’s reactions and

responses to the interrogatories, their

facial expressions, attitudes, tone of

voice, eye contact, posture and body

movements, as well as confused or nervous

speech patterns in contrast with merely

looking at the cold pages of an appellate

record." United States v. Mancillas, 183

F.3d 682, 701 n.22 (1999). 

 In addition, a defendant objecting to

the search of a particular area bears the

burden of proving a legitimate

expectation of privacy in the area

searched. United States v. Ruth, 65 F.3d

599, 604 (7th Cir. 1995) (citing United

States v. Duprey, 895 F.2d 303, 309 (7th

Cir. 1989)). A reasonable expectation of

privacy exists when "’(1) the complainant

exhibits an actual (subjective)

expectation of privacy and, (2) the

expectation is one that society is

prepared to recognize as reasonable.’"

Id. (quoting United States v. Myers, 46

F.3d 668, 669 (7th Cir. 1995).

 French argues that he had a reasonable

expectation of privacy in the gravel

walkway from which Kelly made his

observations of the methamphetamine lab
because it was within the curtilage of

his home. The Fourth Amendment protects

individuals from unreasonable searches

and seizures. This protection is not

limited to the four walls of one’s home,

but extends to the curtilage of the home

as well. See Siebert v. Severino, 256

F.3d 648, 653-54 (7th Cir. 2001). The

home’s curtilage encompasses "the area

outside the home itself but so close to

and intimately connected with the home

and the activities that normally go on

there that it can reasonably be

considered part of the home." Id. At

common law, the curtilage is the area

that encompasses the intimate activities

associated with the sanctity of the home

and the privacies of life. United States

v. Hedrick, 922 F.2d 396, 398 (7th Cir.

1991).

 A curtilage line is not necessarily the

property line, nor can it be located

merely by measuring the distance separat

ing the home and the area searched.

United States v. Redmon, 138 F.3d 1109,

1112 (7th Cir. 1998) (en banc). Instead,

a home’s "curtilage" is the area outside

the home itself but so close to and

intimately connected with the home and

the activities that normally go on there

that it can reasonably be considered part

of the home. United States v. Pace, 898

F.2d 1218, 1228 (7th Cir. 1990). For

example, a barn located sixty feet from a

home, which is kept locked and inaccessi

ble to the general public, may be within

a home’s curtilage, see Severino, 256

F.3d at 654, but garbage placed in a gar

bage can that abuts the home is not, see

United States v. Shanks, 97 F.3d 977, 979

(7th Cir. 1996). Thus whether an area is

within a house’s curtilage depends not

only on proximity to the house but also

on the use of the area and efforts to

shield it from public view and access as

well as the nature for which it is used.

United States v. Dunn, 480 U.S. 294, 302-

03 (1987). 

 The Supreme Court announced a fourfactor inquiry to determine whether an

area is within the curtilage of a home:

[1] the proximity of the area claimed to

be curtilage to the home, [2] whether the

area is included within an enclosure

surrounding the home, [3] the nature of

the uses to which the area is put, and

[4] the steps taken by the resident to
protect the area from observation by

people passing by.

Id. at 334-35.

 In applying the factors announced in

Dunn, the trial court found that the

walkway was not within an enclosed area

surrounding the trailer and that French

had failed to take any steps to protect

the area from observation by passersby,

much less preventing the general public

from making use of the area to engage in

the hobby of automotive repair. The trial

court further found that the walkway was

not so intimately related to the

activities of the home itself that it

would be recognized as placed under the

umbrella of Fourth Amendment protection.

Accordingly, the trial court ruled that

the gravel walkway fell outside the

home’s curtilage and that Probation

Officer Kelly’s observations were not

made in violation of the Fourth

Amendment. We agree.

 French advances several unconvincing

theories in his argument that the gravel

walkway, from which Probation Officer

Kelly made his observations of the shed

and lean-to structures, was within the

curtilage of French’s home. Initially,

French argues that because the walkway

was within twenty feet of the home it

therefore was of sufficient proximity to

the home to be within its curtilage.

French next quibbles with the trial

court’s findings that he failed to take

steps to protect the area from

observation by the public and argues that

the public did not have access to drive.

Finally, French argues that the walkway

was used for a purpose consistent with

home-life, and therefore should be

considered to be within the curtilage of

the home.

 French’s argument that the walkway’s

proximity to the home gives rise to an

expectation of privacy is unconvincing.

The shed and lean-to were located

approximately twenty feet from the

residence and the walkway connected the

two structures. While it is true that we

have found that privacy expectations are

most heightened when the area in question

is nearer (within 20 feet) to the home,

the proximity to the home, standing by

itself, does not per se, suffice to

establish an area as within the
curtilage. Oliver v. United States, 466

U.S. 170, 182 n.12; Hedrick, 922 F.2d at

399. A curtilage line "cannot be located

merely by taking measurements from some

other case or precedent and then by use

of a tape measure trying to determine

where the curtilage is in a different

case." Redmon, 138 F.3d at 1112 (en

banc). Accordingly, while the proximity

of the walkway to the house may be a

factor to be considered in deciding

whether it is within the home’s

curtilage, it is but one of several

factors to be applied. Dunn, 480 U.S. at

334-35. 

 French next advances two arguments in

support of his position that the trial

court erred in concluding that he failed

to take steps to prevent the public from

observing the walkway, shed and lean-to.

First, French argues that the walkway was

part of his "backyard," and thus entitled

to the presumption that it was within the

curtilage. But French’s self-serving

definition of a "backyard" is not

convincing. Contrary to French’s

assertion, the gravel walkway had none of

the characteristics of a backyard. The

walkway was neither enclosed nor shielded

from the public in any way. The probation

officers testified (and the trial court

found their testimony to be credible)

that here were no gates, barriers, or "no

trespassing" signs that prevented people

from viewing and using the gravel

walkway./2 Further, from Kelly’s point

of view, several members of the public

had access to the walkway, and were using

it freely on the occasions when he was

present on the property. Indeed when

Kelly arrived there were no less than

three (3) persons on French’s property:

Nicholas Jordan worked on a vehicle,

Kevin Morlan made use of the shed and

lean-to, and Eric Collins sat in a parked

vehicle smoking methamphetamine.

Additionally, the trial court found that

the clutter of car parts and maintenance

equipment on and around the drive and

walkway was further evidence that the

public had access to and frequently used

the walkway. As such, it was apparent to

Kelly that the walkway was much more like

a sidewalk or gravel path that allowed

the public to access the front door as

well as the shed and lean-to without

tramping on the property owner’s grass,

than an essential component of a private

backyard. 
 French also quarrels with the trial

court’s finding that the general public

had access to the walkway to work

onautomotive vehicles. We disagree. In

the past we have held that public drives,

sidewalks, or walkways (even those which

lead to a rear side door) are not within

the curtilage of the home when they are

not enclosed by a gate or fence. See,

e.g., United States v. Evans, 27 F.3d

1219 (7th Cir. 1994) (FBI agent who had

plain view of the interior of defendant’s

home from the defendant’s driveway had

not made his observation from within the

home’s curtilage); see also United States

v. Smith, 783 F.2d 648 (6th Cir. 1986)

(officer who drove 70 feet up a private

drive and observed marijuana plants two

feet away from defendant’s house did not

violate the home’s curtilage); United

States v. Ventli, 678 F.2d 63 (8th Cir.

1982) (officer who photographed tire

tracks on private driveway and around the

front porch of a rural home did not

invade the home’s curtilage). In Evans we

noted that "’it is not objectionable for

an officer to come upon that part of

[private] property which has been opened

to public common use. The route which any

visitor or delivery man would use is not

private in the Forth Amendment sense, and

thus if police take that route for the

purpose of making a general inquiry or

for some other legitimate reason, they

are free to keep their eyes open.’"

Evans, 27 F.3d at 1229 (quoting 1 W.

LaFave, Search and Seizure sec. 2.3(e),

at 407 (1987)) (internal quotations

omitted).

 In this case, French failed to produce

any evidence that his driveway and/or

gravel walkway were hidden from public

view, inaccessible, or otherwise used for

intimate activity. Nothing about the

walkway alerted Kelly that French had

closed the walkway to the public in order

to engage in private activities and that

curious neighbors, members of the public,

and government agents should keep out.

Indeed quite the opposite appeared to be

the case, as Kelly observed at least

three members of the public (Morlan, Jor

dan, and Collins) making use of French’s

driveway and walkway. Thus, we agree with

the trial court that the public did have

access to the gravel walkway and that

French failed to take any steps to

prevent the public from accessing it.
 This is not a case where an overzealous

law enforcement officer, without a

warrant, intending to search for illegal

activity ransacked every nook and cranny

of French’s yard. Nor is it a case where

a government agent snooped into areas

that he reasonably believed to be private

in hopes of uncovering evidence of a

crime. Instead, it is clear from the

facts in the record that Kelly came to

French’s property not to conduct a

search, but for the express purpose of

locating an errant probationer who had

failed to report as ordered on numerous

occasions. "Probation officers are the

intermediary between the judicial system

and those who are released into society,

but remain under its supervision. Among

other things, the probation officer

directly supervises the probationers

[and] keeps the courts informed of

developments in each case . . . ."

Jefferson v. Ambroz, 90 F.3d 1291, 1297

(7th Cir. 1996). Kelly had a good-faith

belief that his probationer was on the

French property and working on an

automotive vehicle on the property, and

he entered the premises in hopes of

finding him in order that he might carry

out his supervisory duties. 

 As noted above, it is not objectionable

for an officer to come upon that part of

private property opened for public common

use and the officer may use the "route

which any visitor to a residence would

use . . . for the purpose of making a

general inquiry or for some other

legitimate reason." Evans, 27 F.3d at

1229. It is common sense that, upon

entering French’s drive and seeing a

person working on a vehicle at the end of

the drive near the gravel walkway, that

Kelly would approach this person rather

than approach the front door to the

trailer. Probation Officer Kelly entered

the French property through the public

drive for the legitimate purpose of

making a general inquiry of those people

who were in plain view and he was free to

keep his eyes open during his inquiry. At

all times, Kelly confined his actions to

those areas on French’s property where it

was reasonable and necessary to carry out

his objective of locating Hensley, the

probationer who had been successful in

eluding him.

 Finally, French also argues that the
trial court committed error in holding

that French failed to use the gravel

walkway for a purpose connected to the

intimate activities of his home. French

contends that because the walkway was

used in furtherance of his hobby of

automotive repair, it was connected to

the "intimate activities of the home" and

thus within the curtilage of the home. In

support, French suggests that the tools

for this hobby were stored in his yard

and in the shed and lean-to and that the

gravel walkway furthered or somehow

advanced his hobby of automotive repair.

But the only purpose of the walkway was

to connect the trailer to the shed, leanto and gravel drive. French has failed to

point to a scintilla of evidence to

demonstrate that the walkway, in any way,

harbored "the intimate activity

associated with the sanctity of a man’s

home and the privacies of life." Dunn,

480 U.S. at 334. 

 We agree with the trial court that the

walkway from which Kelly made his

observations was not within the curtilage

of French’s home and that French had no

legitimate expectation of privacy in the

walkway. French failed to take any steps

to prevent the public from accessing the

walkway area. It was reasonable for Kelly

to assume, based upon the number of

persons freely using the walkway and

gravel drive as well as the clutter

around it, that French had no reasonable

expectation of privacy in the driveway

and gravel walkways. French’s conviction

and sentence are AFFIRMED.

FOOTNOTES

/1 French also argues that the exclusionary rule

should apply where law enforcement officers

obtain a search warrant by relying on information

provided by probation officers. Based upon the

record before us as well as the trial court’s

ruling on French’s motion to suppress, we hold

that Probation Officer Kelly was not within the

curtilage of the French home (and therefore

committed no Fourth Amendment violation) when he

made his observations. Thus we need not address

this issue in the opinion.

/2 French argues that a partition, approximately

four feet high and five feet in length obscured

any view of the interior of the shed and lean-to

from the gravel drive. The trial court, however,

found credible Probation Officers Kelly and

Starwalt’s testimony that no such partition
existed at the time of the relevant searches.

French makes no attempt to show that the trial

court’s factual finding on this matter was clearly erroneous. Further, even had the trial court

found that such a partition existed, it would

have been relevant only to whether the shed and

lean-to were within the curtilage of the home and

not to whether the gravel walkway, from which

Officer Kelly made his observations, was within

the curtilage of the home. As we observed previously, the trial court’s credibility determinations are given special deference for the trial

judge heard the testimony and observed the witnesses at the suppression hearing. Gravens, 129

F.3d at 978.