* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### March 16, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES DANIEL SECKMAN, Defendant - Appellant. No. 05-7044 (D.C. No. 04-CR-90-P) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and LUCERO , Circuit Judges. **
Defendant-Appellant James Daniel Seckman entered a conditional plea of guilty to manufacturing methamphetamine in violatio n of 21 U.S.C. § 841(a)(1), and was sentenced to 115 months imprisonment and th ree years supervised release. The district court denied his motion to s uppress based upon the recommendation of a magistrate judge. Our jurisdic tion arises under 28 U.S.C.- 2 -

§ 1291 and we affirm. The parties are familiar with the facts and we need not restate them here. The magistrate judge determined that Mr. Seckman wa s legally stopped for speeding and that a search of his motorcycle, inclu ding a camouflage bag attached thereto, was based upon probable cause. Inside the bag, 48 unopened boxes of pseudoephedrine tablets (60 mg. each) and four bott les of “Heet” gas line antifreeze were found. These items may be used in the manufacture of methamphetamine. On appeal, Mr. Seckman does not c hallenge this stop, seizure or search. He does challenge the search of his home pursuant to a warrant obtained by the arresting officer. Initially, Mr. Seckman clai med that were the evidence from the motorcycle suppressed, the affidavit in supportof the search warrant would be insufficient to establish probable cause. The magi strate judge having rejected that premise, the focus shifted to whether other information contained in the affidavit provided by state narcotics agents was obtained unl awfully and therefore should be excluded. That information was as follows: On 08/29/03 Agents from the Oklahoma Bureau of Narc otics located marijuana plants growing near SECKMAN’S residence and outbuildings. While at the residence retrieving th e marijuana plants the Agents found items consistent with the clandest ine manufacture of methamphetamine including HCL gas generators andtwo-layer liquids. The Agents also found a burn pile contain ing partially-burnt tincture of iodine containers, “Heet” brand gas lin e antifreeze containers, and camp fuel containers. A chemical o dor the Agents- 3 -

associated with the clandestine manufacture of meth amphetamine was also present near the residence and outbuilding s. Aplt. App. tab 6, at unnumbered p. 3, ¶ 13. The ma gistrate judge was troubled by the officer’s testimony that the marijuana plants w ere discovered some 50 to 100 yards from Mr. Seckman’s residence during a fly-ove r by state narcotics agents. After they seized the plants, the agents approachedMr. Seckman’s residence without a warrant and discovered the above items wi thin the curtilage. According to the magistrate judge, this testimony i mplicated whether the information in the above paragraph should be exclud ed from the probable cause determination because it was obtained unlawfully, i .e. without a warrant, or because the circumstances surrounding it were not f ully disclosed in the affidavit. The magistrate judge thought it problematic as to w hether the other information in the affidavit would provide probable cause to searc h Mr. Seckman’s residence. The magistrate judge declined to answer these quest ions “because the parties did not address them adequately in their briefs or at the suppression hearing.” Aplt. App. tab 3, at 13. Instead, it applied the good-fa ith exception in United States v.
Leon , 468 U.S. 897 (1984), holding that the omission of the circumstances leading to the above paragraph was inadvertent and that an officer could reasonably believe the affidavit and resulting warr ant were sufficient. When reviewing the denial of a motion to suppress, we view the facts in the light most favorable to the government and review f indings of fact for clear error.- 4 -

United States v. Riccardi , 405 F.3d 852, 859 (10th Cir. 2005). Our review o f the application of the good-faith exception to the warr ant requirement is de novo. United States v. Nielson , 415 F.3d 1195, 1203 (10th Cir. 2005). A defendant challenging a search pursuant to a warr ant has the burden of proof. United States v. Carhee , 27 F.3d 1493, 1496 (10th Cir. 1994); United
States v. Maestas , 2 F.3d 1485, 1491 (10th Cir. 1993). In the conte xt of a warrant that a defendant claims is invalid due to a deliber ate falsehood or a reckless disregard for the truth, the rule is the same. See Franks v. Delaware , 438 U.S. 154, 171 (1978); Maestas , 2 F.3d at 1491. As was done here, it is possible to address the good faith exception before determining whether a warrant is deficient for lack of an affidavit establishing pro bable cause. See Leon , 468 U.S. at 924-25. But usually it is difficult to assess the reasonableness of law enforcement action without specific facts analyzed against a backdrop of the Fourth Amendment. Moreover, such Fourth Amendment analysis is useful in developing the law. See id. at 925; United States v. Danhauer , 229 F.3d 1002, 1005 (10th Cir. 2000). We have serious reservations about whether Mr. Seckman met his burden of establishing that the affidavit in support of the w arrant was deficient. Although the magistrate judge determined that the incriminat ing evidence discussed in the warrant was within the curtilage of the defendant’s home, he could not say- 5 -

whether the narcotics agents were within the curtil age when they observed this evidence. As the proponent of a motion to suppress evidence obtained with a warrant, it was incumbent on Mr. Seckman to develop such facts. Although the curtilage is entitled to Fourth Amendm ent protection, what constitutes the curtilage requires an analysis of “ whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver v. United States , 466 U.S. 170, 180 (1984). Factors considered inc lude (1) the proximity of the area to the house, (2) whetherthe area is included within an enclosure surrounding the home; (3) how the area is used; and (4) any steps taken by the resident to protect the area from observatio n. United States v. Dunn , 480 U.S. 294, 301 (1987). These factors help in determ ining the primary inquiry: “whether the area in question is so intimately tiedto the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Ame ndment protection.” Id. If the narcotics agents made their observations fro m places where visitors could be expected to go, i.e. walkways, driveways o r porches, or even open fields on private property, such vantage points are not wi thin Fourth Amendment protection. United States v. Hatfield , 333 F.3d 1189, 1194-95, 1198-99 (10th Cir. 2003); Fulbright v. United States , 392 F.2d 432, 434-35 (10th Cir. 1968). On the other hand, if the agents made their observations f rom the curtilage, that would implicate the Fourth Amendment. Hatfield , 333 F.3d at 1198; Fullbright , 392- 6 -

F.2d at 434-35. The premise of Mr. Seckman’s argument is that the a ffidavit in support of the warrant should have disclosed that the observat ions about his residence were the product of a Fourth Amendment violation, i.e. awarrantless entry onto the curtilage. The record in this case is inadequate t o support that premise. Specifically, the appendices in this case contain t he judgment, the affidavit for the search warrant, the disposition by the district cou rt and report and recommendation of the magistrate judge and two page s of the transcript of the suppression hearing. Aplt. App. & Aplee. App. Mr. Seckman’s brief quotes another page of the suppression hearing not contain ed in the appendices. Aplt. Br. at 6-7. Nowhere is the nuanced analysis that w ould be required to determine whether a valid Fourth Amendment claim exists conce rning whether the agents’ observations were made from a protected vantage poi nt, let alone whether the warrant in this case should have disclosed fully th e circumstances surrounding those observations. Though the officer in this cas e testified that the agents went to the house without a search warrant, that really does not resolve the issue. Aplt.
Br. at 7. We reject Mr. Seckman’s argument that a reasonably well-trained officer would have known that the search was illegal despit e the warrant, and that the material omission of the circumstances surrounding the observations of the agents- 7 -

is tantamount to a false statement. No indication exists in this record that the officer deliberately or recklessly misled the state court judge, or that the judge abdicated his duty. Thus, we need not address the contention that without the agents’ observations, the affidavit for the warrantlacked probable cause.
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge