PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4722

EUGENE GEORGE BREZA,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, Chief District Judge.

(CR-01-12)

Argued: September 25, 2002

Decided: October 28, 2002

Before WILKINS, WILLIAMS, and KING, Circuit Judges.

Affirmed by published opinion. Judge Wilkins wrote the opinion, in

which Judge Williams and Judge King joined. 

COUNSEL

ARGUED: Wells Hemann Dillon, St. Marys, West Virginia, for

Appellant. ON BRIEF: Thomas E. Johnston, United States Attorney,

Stephen Donald Warner, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. 
OPINION

WILKINS, Circuit Judge: 

Eugene George Breza pleaded guilty to manufacturing 100 or more

marijuana plants, see 21 U.S.C.A. § 841(a)(1) (West 1999), reserving

the right to appeal the denial of his motion to suppress. He now

argues that his right to be free from unreasonable searches and seizures was violated when law enforcement officers conducted aerial

surveillance of his property and subsequently entered, and seized marijuana plants from, a vegetable garden that Breza asserts was within

the curtilage of his home. For the reasons set forth below, we affirm.

I.

Breza owns a 92-acre farm in Gilmer County, West Virginia. Only

part of this land, surrounding the house, is landscaped. This area consists of a lawn and a vegetable garden from which the marijuana was

seized. The house and the landscaped portion of the yard are surrounded by a perimeter fence made of posts and wire. The lawn

extends approximately 50 feet from the back of the house to the vegetable garden, which is separated from the lawn by a post-and-wire

fence with a gate; the perimeter fence doubles as the back fence of

the garden. In addition to the fence, an ornamental garden and several

trees separate the vegetable garden from the lawn.1 The portion of the

vegetable garden where the marijuana was growing was shielded by

artichoke plants and grapevines, so that the marijuana could not be

viewed from outside the garden by one standing on Breza’s lawn. 

While conducting a routine drug interdiction operation, law

enforcement officers flew over Breza’s property in a helicopter at a

height of approximately 500 feet. When one of the officers observed

what he believed to be marijuana growing in the garden, the helicopter pilot descended to approximately 200 feet above the property.2

1The record does not contain information regarding the size or dimensions of the vegetable garden or the amount of produce it yielded. 

2Breza testified that the helicopter descended much lower, to less than

100 feet and perhaps as low as 35 feet. The district court credited the

Government’s version of events, however. 

2 UNITED STATES v. BREZA
After confirming the presence of marijuana, the helicopter ascended

to navigable airspace and radioed nearby officers stationed on the

ground, who immediately proceeded to Breza’s property. Officers

searched the garden and seized several hundred marijuana plants. 

After he was indicted, Breza moved to suppress the marijuana on

the basis that the aerial surveillance of his property and the warrantless entry of his vegetable garden violated his Fourth Amendment

rights. Following a hearing, the district court rejected both arguments

and denied the motion to suppress. Breza thereafter entered a conditional guilty plea. 

II.

The Fourth Amendment guarantees "[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" by governmental actors. U.S. Const.

amend. IV. The "touchstone" of Fourth Amendment analysis is

whether the individual has a reasonable expectation of privacy in the

area searched, Oliver v. United States, 466 U.S. 170, 177 (1984), i.e.,

"whether the government’s intrusion infringes upon the personal and

societal values protected by the Fourth Amendment," id. at 182-83.

Thus, "[a] ‘search’ occurs when an expectation of privacy that society

is prepared to consider reasonable is infringed." United States v.

Jacobsen, 466 U.S. 109, 113 (1984); see Illinois v. Andreas, 463 U.S.

765, 771 (1983) ("If the inspection by police does not intrude upon

a legitimate expectation of privacy, there is no ‘search’. . . .").

Whether certain conduct by law enforcement officers infringes upon

rights guaranteed by the Fourth Amendment is a question of law subject to de novo review. See United States v. Gomez, 276 F.3d 694, 697

(5th Cir. 2001); United States v. Rusher, 966 F.2d 868, 873 (4th Cir.

1992). Underlying factual findings, however, are reviewed for clear

error. See Rusher, 966 F.2d at 873. "A finding is clearly erroneous

when, although there is evidence to support it, on the entire evidence

the reviewing court is left with the definite and firm conviction that

a mistake has been committed." Faulconer v. Comm’r, 748 F.2d 890,

895 (4th Cir. 1984). 

A.

Breza first maintains that the aerial surveillance of his property violated his Fourth Amendment rights because the surveillance constiUNITED STATES v. BREZA 3
tuted a warrantless search of the curtilage of his home. See Oliver,

466 U.S. at 180 (defining curtilage as "the area to which extends the

intimate activity associated with the ‘sanctity of a man’s home and

the privacies of life’" (quoting Boyd v. United States, 116 U.S. 616,

630 (1886))). Because an individual ordinarily possesses the highest

expectation of privacy within the curtilage of his home, that area typically is "afforded the most stringent Fourth Amendment protection."

United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976). Nevertheless, "[w]hat a person knowingly exposes to the public, even in his

own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967). "Thus, a law

enforcement officer’s observations from a public vantage point where

he has a right to be and from which the activities or objects he

observes are clearly visible do not constitute a search within the

meaning of the Fourth Amendment." United States v. Taylor, 90 F.3d

903, 908 (4th Cir. 1996) (internal quotation marks omitted). 

On two occasions, the Supreme Court has addressed the question

of whether aerial surveillance of property violates an expectation of

privacy that society is prepared to recognize as reasonable. See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207

(1986). In Ciraolo, the Court concluded that aerial observation of the

defendant’s property from a height of 1,000 feet did not violate "an

expectation of privacy that is reasonable" because it "took place

within public navigable airspace in a physically nonintrusive manner." Ciraolo, 476 U.S. at 213 (citation omitted); cf. Giancola v. W.

Va. Dep’t of Pub. Safety, 830 F.2d 547, 550-51 (4th Cir. 1987) (holding, under Ciraolo, that helicopter flyover of property at 100 feet did

not violate Fourth Amendment). In Riley, a plurality of the Court concluded that the defendant’s Fourth Amendment rights were not violated when law enforcement officers observed marijuana while

hovering in a helicopter at an altitude of 400 feet. See Riley, 488 U.S.

at 451-52 (plurality opinion). In reaching this conclusion, the plurality

noted, inter alia, that the flight was conducted in compliance with

applicable laws and regulations. See id. at 451. Justice O’Connor concurred in the judgment, asserting that mere compliance with aviation

regulations should not determine whether a Fourth Amendment violation occurred. See id. at 453-54 (O’Connor, J., concurring in judgment). Rather, Justice O’Connor maintained that the relevant inquiry

was "whether the helicopter was in the public airways at an altitude

4 UNITED STATES v. BREZA
at which members of the public travel with sufficient regularity that

[the defendant’s] expectation of privacy from aerial observation was

not one that society is prepared to recognize as reasonable." Id. at 454

(internal quotation marks omitted). Because the defendant had produced no evidence that such flights were rare, Justice O’Connor concluded that no Fourth Amendment violation had occurred. See id. at

455. 

Breza contends that reversal is mandated under Justice O’Connor’s

concurrence in Riley. His argument, however, rests almost entirely on

the factual assertion that the helicopter violated FAA regulations by

flying as low as 35 feet over his property. The district court rejected

Breza’s testimony and found that the helicopter fully complied with

applicable regulations regarding proper altitude. Additionally, testimony from law enforcement officers established that such flights

were a regular occurrence in the area where Breza’s farm was located.3

We therefore conclude that the aerial observation of Breza’s property

did not violate his Fourth Amendment rights. 

B.

Breza next contends that the law enforcement officers’ warrantless

entry into the vegetable garden violated his Fourth Amendment rights.

The question of whether Breza had a legitimate expectation of privacy

in his garden turns upon whether the garden was within the curtilage

of the house or, conversely, was an "open field" not subject to the protection of the Fourth Amendment. See Oliver, 466 U.S. at 180

(explaining that "only the curtilage, not the neighboring open fields,

warrants the Fourth Amendment protections that attach to the home");

Hester v. United States, 265 U.S. 57, 59 (1924). In United States v.

Dunn, 480 U.S. 294, 301 (1987), the Supreme Court instructed that

3

In his brief, Breza claims to have testified at the suppression hearing

that "overflights by helicopter over his property were definitely rare." Br.

of Appellant at 17. This is not exactly what Breza said, however. Breza’s

testimony did not refer to helicopter flights generally, but rather was

given in response to the specific question of whether it was usual for helicopters to fly over his property at the claimed altitude of 35 feet. 

UNITED STATES v. BREZA 5
curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be

curtilage to the home, whether the area is included within an

enclosure surrounding the home, the nature of the uses to

which the area is put, and the steps taken by the resident to

protect the area from observation by people passing by. 

The Court cautioned, however, that "these factors are useful analytical

tools only to the degree that, in any given case, they bear upon the

centrally relevant consideration—whether the area in question is so

intimately tied to the home itself that it should be placed under the

home’s ‘umbrella’ of Fourth Amendment protection." Id.

A dispute exists among the circuits regarding the proper standard

to be applied in reviewing a curtilage determination by the district

court. See generally United States v. Johnson, 256 F.3d 895, 901 (9th

Cir. 2001) (per curiam) (en banc) (discussing dispute). Several courts

have held that because the application of the Dunn factors is factintensive, review is for clear error. See, e.g., United States v. Soliz,

129 F.3d 499, 502 (9th Cir. 1997); United States v. Benish, 5 F.3d 20,

23-24 (3d Cir. 1993); United States v. Swepston, 987 F.2d 1510, 1513

(10th Cir. 1993). In contrast, the First Circuit has held that under

Ornelas v. United States, 517 U.S. 690, 699 (1996), the question of

whether an area is within the curtilage is ultimately a legal one, and

thus is subject to de novo review, while antecedent factual findings

are reviewed for clear error. See United States v. Diehl, 276 F.3d 32,

37-38 (1st Cir.), cert. denied, 71 U.S.L.W. 3236 (U.S. Oct. 7, 2002)

(No. 01-10091). We agree with the First Circuit that the Ornelas

standard—which is the same as that traditionally applied by this circuit to rulings on suppression motions, see Rusher, 966 F.2d at 873—

applies to curtilage determinations. With this standard in mind, we

proceed to review the relevant factors. 

1. Proximity

"There is not . . . any fixed distance at which curtilage ends."

United States v. Depew, 8 F.3d 1424, 1427 (9th Cir. 1993). Rather,

in determining whether the area searched was "intimately tied to the

home," Dunn, 480 U.S. at 301, courts have concluded that the proximity of the area to the home must be considered in light of the other

6 UNITED STATES v. BREZA
Dunn factors. See, e.g., Daughenbaugh v. City of Tiffin, 150 F.3d 594,

598-99 (6th Cir. 1998) (stating that distance of 50-60 yards was "inconclusive" by itself); Diehl, 276 F.3d at 39 (observing that 82-foot

distance was of "no decisive help" in curtilage determination). Thus,

while the fact that the entrance to Breza’s garden was only 50 feet

from his house would permit a conclusion that the garden was within

the curtilage, cf. Depew, 8 F.3d at 1427 (noting that distance of 60

feet "is close enough to permit a finding of curtilage if other factors

support such a finding"), it does not compel such a conclusion. 

2. Enclosure

Next, we must consider "whether the area is included within an

enclosure surrounding the home." Dunn, 480 U.S. at 301. "The proper

focus of this factor is on whether interior fencing clearly demarcates

the curtilage." United States v. Traynor, 990 F.2d 1153, 1158 (9th Cir.

1993). Here, the district court found that Breza’s vegetable garden

was "defin[ed] off" from the remainder of his yard by an interior

fence and a line of landscaping that included an ornamental garden

and several trees. J.A. 172. In light of this finding—which we cannot

say is clearly erroneous—we agree with the district court that the interior fence separating the garden from the lawn "clearly demarcates"

the boundaries of the home. Cf. Swepston, 987 F.2d at 1515 (concluding that garden separated from house by fence was not within curtilage). This factor therefore weighs against a ruling that the vegetable

garden was within the curtilage of Breza’s home. 

3. Use of Property

The third Dunn factor concerns the use of the area claimed to be

curtilage. In Dunn, the Supreme Court deemed it "especially significant" that law enforcement officials "possessed objective data indicating that" the area claimed to be curtilage was being used for the

production of illicit drugs and not for "intimate activities of the

home." Dunn, 480 U.S. at 302. As in Dunn, the officers here had

observed marijuana growing in Breza’s garden, providing at least

some indication that the garden was not used for the intimate activities of home life. Cf. Traynor, 990 F.2d at 1158 (concluding that shop

used solely for growing marijuana was not within curtilage). And,

although "gardening is an activity often associated with the curtilage

UNITED STATES v. BREZA 7
of a home," State v. Rogers, 638 A.2d 569, 573 (Vt. 1993), the district

court found, in light of the size of the garden and the amount of effort

Breza expended on it, that the garden was "not just a domestic activity, this [was Breza’s] work," J.A. 172. We cannot say that this finding was clearly erroneous in light of the record before the district

court. Therefore, the use of the area also weighs against a determination that the vegetable garden was within the curtilage of Breza’s

home. 

4. Visibility

Finally, we must consider the steps taken by Breza to shield the

vegetable garden from the view of passers-by. We conclude that this

factor weighs against a determination that the garden was within the

curtilage of Breza’s home. Breza did choose his home place because

of the remote location. See Depew, 8 F.3d at 1428. However, it does

not appear that Breza made any additional effort to conceal the vegetable garden from public view. Cf. Swepston, 987 F.2d at 1515 (concluding that fence surrounding garden did not support finding of

curtilage because it was designed to corral chickens, not to obstruct

view). 

5. Conclusion

Having considered all of the Dunn factors, we conclude that

Breza’s vegetable garden was not "so intimately tied to the home

itself that it should be placed under the home’s ‘umbrella’ of Fourth

Amendment protection." Dunn, 480 U.S. at 301. Although the garden

was relatively close to Breza’s house and Breza had chosen to live in

an isolated location, these factors are outweighed by the clear demarcation of the vegetable garden from the landscaped portion of the yard

and the uses to which the garden was put. 

III.

For the reasons set forth above, we conclude that neither the aerial

surveillance of Breza’s property nor the warrantless entry into his

vegetable garden infringed upon Breza’s Fourth Amendment rights.

We therefore affirm the denial of the motion to suppress.

AFFIRMED

8 UNITED STATES v. BREZA