United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2682EA

_____________ United States of America, * * Appellee, *

* v. * * James L. Mooring, * * Appeal from the United States

Appellant, * District Court for the Eastern

____________________ * District of Arkansas. * United States of America, * * Appellee, *

* v. * * Cheryl D. Mooring, * * Appellant. *

_____________ Submitted: December 9, 1997

Filed: February 25, 1998

_____________ Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ FAGG, Circuit Judge.-2-

After r eceiving information about drug activity on a farm owned by James L

. Mooring and Cheryl D. Mooring, the police placed the farm under surveillance

. Observing the farm at night, the police saw light coming from a barn and used a thermal imagerto i dentify the barn as a heat source. An officer then entered the property , walked next to the barn and heard a buzzing noise the officer recognized as comin g from electrical equipment used to grow marihuana. The police obtained a warrant and searched the barn, finding more than 250 marihuana plants growing there. Th e Moor ings moved to suppress this evidence, asserting the officer’s entry onto thei r property was a warrantless search in violation of the Fourth Amendment because the barn was within the farmhouse’s curtilage. After a hearing, the district court denied the Moorin gs’ motion. Mr. Mooring entered conditional guilty pleas to charges o f manufa cturing and possessing with intent to distribute marihuana, see 21 U.S.C. § 841(a)(1) (1994), and Ms. Mooring entered a conditional guilty plea to misprision of a fel ony, see 18 U.S.C. § 4 (1994). The Moorings now appeal the denial of thei r suppression motion. We affirm.
Th e Fourth Amendment protects people from unreasonable searches of thei r home and buildings within the home’s curtilage, but police officers may enter a resid ent’s property to observe buildings located outside the home’s curtilage. Se e United St ates v. Dunn , 480 U.S. 294, 300-04 (1987). In deciding whether th e Moorings ’ barn was within their farmhouse’s curtilage, the “central component” w e consider is “whether the [barn] harbor[ed] the intimate activity associated with th e sanctity of [the Moorings’ farmhouse] and the privacies of [their] life.” Id. at 30 0 (inter nal quotations omitted). Several factors are relevant to our decision: th e proximity of the barn to the farmhou se, whether the farmhouse and barn are within the same enclosure, the nature and uses of the barn, and the steps the Moorings took t o protect the bar n from being seen by others. See id. at 301. We do not apply thes e factors mechani cally, but use them to consider if the Moorings’ barn “is so intimately tied to the [farmhouse] itself that [the barn] should be placed under the [farmhouse’s] ‘umbrella’ of Fourth Amendment protection.” Id.-3-

After revie wing the record in light of the relevant factors, we conclude th e district court’s finding that the barn was not within the farmhouse’s curtilage was not clearly erroneous. See United States v. Friend , 50 F.3d 548, 552 (8th Cir. 1995) , vacated on other grounds , 116 S. Ct. 1538 (1996). The barn’s distance of forty to fifty yards from the farmhouse neither clearly fav ors nor disfavors including the barn within the farmho use’s curtilage. See United States v. Reilly , 76 F.3d 1271, 1277 (2d Cir

. 19 96) (building 375 feet from a house is within the home’s curtilage); but see United States v. Brady , 993 F.2d 177, 178 (9th Cir. 1993) (barn forty-five feet from a house is no t within the house’s curtilage). The Moorings contend a tree line about on e hundredyards from the barn marked their farmhouse’s curtilage like a fence, bu t nothing in the record suggests the trees satisfy t he requirements of an enclosure around the barn. See Reilly , 76 F.3d at 1277-78. Contrary to the Moorings’ testimony about their use of the barn, an officer testified t he barn was only used to warehouse junk-like items and grow marihuana. After seeing a video tape of the barn’s interior, the district court noted “that a picture is worth a thousand words,” and the video confirmed th e barn wa s not associated with the Moorings’ domestic life. Also, the police ha d objective i nformation the Moorings did not use the barn “for intimate activities of the home.” Dunn , 480 U.S. at 302. This information included dramatic increases in the Moor ings’ electrical bills consistent with indoor marihuana-growing operations, th e unconceale d heat emissions from the lighted barn, the unmuffled noises from th e marihuana-growing equipment, and the absence of signs or fences restricting strangers’ acce ss to the barn. Finally, although the officer’s obscured view of the barn from a public road about a quarter of a mile away favors including the barn in the curtilage, see Reilly , 76 F.3d at 1279, this fact in itself does not esta blish the barn should be included within the farmhouse’s Fourth Amendment protection.
Bas ed on our review of the record, we believe substantial evidence exists t o support the district court’s finding that the barn was outside of the farmhouse’ s curtilage, and we affirm the district court’s ruling.-4-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.