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

### OCT 21 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. SHIRLEY ELLEN HUTCHINGS AND KENNETH ORVILLE HUTCHINGS,

Defendants - Appellants. No. 96-4171, 96-4172

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D. Ct. Nos. 93-CR-214-02 and 93-CR214-01) Jerold D. McPhee, Salt Lake City, Utah, appearing f or Defendants-Appellants. Bruce C. Lubeck, Assistant U.S. Attorney (Scott M. Matheson, Jr., U.S. Attorney, with him on the brief), Office of the U.S. Attorney , Salt Lake City, Utah, appearing for Plaintiff-Appellee.

Before TACHA, MCKAY, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

Defendants Kenneth and Shirley Hutchings each pleadguilty to one charge of manufacturing marijuana in violation of 21 U.S.C . § 841(a)(1), and were each- 2 -

sentenced to forty months imprisonment and a five-y ear supervised release. They appeal from the district court’s denial of their mo tion to suppress evidence. The defendants claim that law enforcement officers coll ected evidence against them in a manner prohibited by both the Posse Comitatus Actand the Fourth Amendment of the U.S. Constitution. We take jurisdiction pur suant to 28 U.S.C. § 1291 and affirm. Background Prior to and during the summer of 1993, the United States Bureau of Land Management (“BLM”) employed defendants Kenneth and Shirley Hutchings to provide security and maintenance on an otherwise-ab andoned, 10,000-square-acre property known as the White River Oil Shale Project(“White River”), located in Uintah County, Utah. The main compound of White Ri ver consisted of various facilities formerly maintained by private oil compa nies. The Hutchings lived there in a trailer, which they owned, and also kepta shed containing personal belongings there. That same summer, a number of federal and state gov ernment agencies-- including the BLM, the Drug Enforcement Administrat ion (“DEA”), the Utah Division of Investigations, and the Utah National G uard--participated jointly in Operation Greenleaf, a marijuana eradication program. On August 10, 1993, two participants in Operation Greenleaf, Sergeant John Egbert of the Utah National- 3 -

Guard and DEA Special Agent Jeff Bryan, hiked onto White River land, acting on reports of a marijuana “grow” in the area. Sgt. Eg bert, who was under the command of Utah National Guard Lt. Col. Kim Watts, carried orienteering equipment and relayed reports from Bryan to DEA loc al headquarters with his advanced communications equipment. The next day, A ugust 11, Sgt. Egbert, Agent Bryan, and another DEA agent observed the def endants watering marijuana plants some distance from the trailer. That night, additional DEA personnel joined the thr ee men outside the White River region. Shortly after midnight, DEA ag ents and other law enforcement personnel entered the compound, orderedthe Hutchings out of their trailer, and arrested them. Several officers brief ly entered the trailer; the entry lasted less than one minute and nothing was seized from the trailer at that time. Sgt. Egbert remained in a vehicle and did not parti cipate in the arrest. For several hours on August 12, Sergeant Egbert aid ed the others in removing the plants--performing what is known as a “whack and stack”--a process that was not completed until late in the afternoon. Seven other National Guardsmen, all under the command of Lt. Col. Watts, provided helicopter services, communications support, and other indirec t assistance during the whack and stack.- 4 -

A warrant authorizing a search of the compound, inc luding the Hutchings’ trailer, was obtained at approximately 6:00 p.m. on August 12. The warrant described the trailer’s location, make, color and d esign, year of manufacture, and serial number. It misidentified the geographic loc ation of the compound as section 14; in fact, it was situated in section 27. Immediately after receiving notification that the warrant had been issued, the officers searched the trailer for evidence. Discussion We first address the application of the Posse Comit atus Act to these events and then proceed to the related Fourth Amendment is sues. I. The Posse Comitatus Act. The Posse Comitatus Act (“PCA”) was enacted at the end of Reconstruction for the purpose of “limit[ing] ‘the direct active u se of federal troops by civil law enforcement officers’ to enforce the laws of this n ation.” U.S. v. Hartley , 796 F.2d 112, 114 (5th Cir. 1986) (quoting U.S. v. Red Feather , 392 F. Supp. 916, 922 (D.S.D. 1975)). The PCA states that “[w]hoever, ex cept in cases and under circumstances expressly authorized by the Constitut ion or Act of Congress, willfully uses any part of the Army or the Air Forc e as a posse comitatus or otherwise to execute the laws shall be fined not mo re that $10,000 or imprisoned1 Since these events occurred, Congress has amended the PCA to read: “. . . . shall

be fined under this title or imprisoned not more than two years, or both.” 18 U.S.C.A. § 1385 (Supp. 1997). - 5 - not more than two years, or both.” 18 U.S.C. § 138 5. 1 We assume, without deciding, that despite the rather peripheral involv ement of the Utah National Guard in the above events, Sgt. Egbert, Lt. Col. Wo ods, and the other National Guardsmen “executed” law for purposes of the PCA. See Hartley , 796 F.2d at 114-15 (discussing degree of military involvement n ecessary to trigger the PCA). Nonetheless, we hold that none of the actions takenby the Utah National Guardsmen at White River violated the PCA. The dispositive question here is whether the office rs were “any part of the Army or Air Force” during the activities at White R iver. A brief explanation of the National Guard’s complex structure is necessaryto explain why they were not. The National Guard occupies a unique place in our f ederal system of government; it has been described appropriately as a “hybrid” b ody. See Tirado-Acosta v. Puerto Rico National Guard , 118 F.3d 852, 853 (1st Cir. 1997). All reservist s who enlist in a state’s National Guard simultaneous ly enlist in the National Guard of the United States. See Perpich v. Dept. of Defense , 496 U.S. 334, 345 (1990). By enlisting with the United States, the Guardsmen become part of the Army’s reserve force; they are not on active duty with the Army. See id. ; see also 10 U.S.C. § 101(d)(1) (noting, in definition of “activ e duty” in U.S. military, that- 6 -

such duty “does not include full-time National Guar d duty”). Guardsmen do not become part of the Army itself until such time as t hey may be ordered into active federal duty by an official acting under a grant of statutory authority from Congress. See , e.g. , Perpich , 496 U.S. at 343-44 (discussing statutes that have authorized the President to draft the National Guar d into federal service); 10 U.S.C. § 12,301 (formerly codified at 10 U.S.C. § 6 72) (authorizing the Secretary of the Army, Navy, or Air Force (or his designee) t o call the National Guard into federal service in time of war or national emergenc y). When that triggering event occurs, a Guardsman becomes a part of the Army and loses his status as a state serviceman. See 32 U.S.C. § 325(a); Perpich , 496 U.S. at 348. But until a Guardsman receives orders directing him into federa l service, he is a state serviceman, and not part of the federal Army. Therefore, a National Guardsman’s participation in a marijuana arrest-- without more--does not constitute a violation of the PCA. See United States v. Benish , 5 F.3d 20, 25-26 (3d Cir. 1993); United States v. Kyllo , 809 F. Supp. 787, 792-93 (D. Or. 1992), vacated in part on other grou nds by 37 F.3d 531 (9th Cir. 1994); Wallace v. State , 933 P.2d 1157, 1159-60 (Alaska Ct. App. 1997). I n such a case, it remains to be proven that the Guardsman had been ordered into federal service at the time.- 7 -

It would, in fact, be a rare situation in which a G uardsman enforced drug laws and was notserving the state. Under federal funding laws whi ch allow the National Guards to participate in programs such as Operation Greenleaf, the National Guards forfeit their federal support if any Guardsmen employed in an anti-drug effort are in federal service. See 32 U.S.C. § 112(a)(1) (granting funds for use of National Guardsman in anti-drug efforts “ while not in federal service ”) (emphasis added). That condition was, in fact, lik ely added to ensure that the federal funding of counter-drug activities did not lead to abuse of the Posse Comitatus Act. Tirado-Acosta , 118 F.3d at 853. It is possible, however, that a Guardsman who had b een called into federal service--that is, one who was wearing his federal “ hat”--could be wrongfully employed in a domestic anti-drug campaign. In the instant case, however, the district court found in accordance with the undisputed evidence that the Guardsmen were in state service for the entire duration of the drug interdiction efforts at White River on August 10-12, including the time of the Hutchings’ arrest and the whack-and-stack operation. United S tates v. Hutchings , No. 93- CR-214G (D. Utah Dec. 11, 1995). Lt. Col. Watts sp ecifically instructed the involved Guardsmen that they were under the directi on of the Governor of Utah during this time. Id . More importantly, the orders themselves indicate d a “Title 32 Duty Status,” demonstrating that the Guardsmen’s assignment to White River- 8 -

was a state-controlled, not a federal, assignment. Id. We adhere to the district court’s conclusions and find no violation of the PC A. It is true, as the defendant notes, that a National Guardsman may appearto be a member of the Army because he is wearing a sim ilar uniform or is carrying identification that is unclear as to whether he is under state or federal command. These indicia, however persuasive they may be to th e eye, have never determined the character of a Guardsman’s service. As discuss ed above, that question depends solely on whether command of the Guardsman has been taken away from a state’s governor by one authorized to do so by Co ngress. Such action is absent in this case. The defendant also argues that the activities at Wh ite River violated a federal requirement that counter-drug activities in which the National Guard participates be authorized by state law. See 32 U.S.C. § 112(c)(4). This attack fails for two reasons. First, Utah Code Annotated § 39-1-5 provides broad authority for the use of the Utah National Guard, s tating that the “governor may order into active service the National Guard . . . as he finds necessary.” Second, the statute upon which this argument is based, 32 U .S.C. § 112, is merely a funding statute. The only consequence of running a foul of section 112 is the revocation of monies. It does not impact this liti gation in any way.- 9 -

In light of the above, we need not reach the questi on of whether exclusion of evidence is an appropriate remedy when federal m ilitary personnel collect evidence in violation of the PCA. II. The Fourth Amendment We next address the Hutchings’ claim that the initi al “search” of the land, prior to obtaining the warrant, was unconstitutiona l. It is well-established that government activity is not a search unless it intru des upon an individual’s justified expectation of privacy. See, e.g. , Katz v. United States , 389 U.S. 347, 352-53 (1967). The search of White River, of cours e, occurred on governmentowned property. The Hutchings could not have had ajustified expectation of privacy in such land. Furthermore, the plants were growing in an open field; open fields receive Fourth Amendment protection only in rare circumstances not relevant here. See, e.g. United States v. Dunn , 480 U.S. 294, 302-05 (1987); Hester v. United States , 265 U.S. 57 (1924). The Hutchings also assert that the warrantless “pro tective sweep” of their trailer at the time of their arrest violated the Fo urth Amendment and seek suppression of all physical evidence seized in the trailer. However, the district court found that the officers were in the trailer f or less than one minute and that the purpose of the entry was to conduct a quick swe ep of the trailer to secure the trailer and ensure the safety of the officers. The Fourth Amendment does not- 10 -

require a warrant for brief protective sweeps like this one. See , e.g. , United States v. Mains , 33 F.3d 1222, 1227 (10th Cir. 1994) (protective s weeps justified by possibility of danger to officers); United State s v. Scroger , 98 F.3d 1256, 1259-60 (10th Cir. 1996) (officers’ fear of imminent destruction of evidence may justify warrantless entry). Moreover, even if we w ere to find that this brief entry was unjustified, there is no evidence to be suppres sed as a result. The district court found that the officers did not perform a sea rch of the contents of the trailer or seize any items at that time. United States v. Hutchings , No. 93-CR-214G (D. Utah Dec. 11, 1995). Furthermore, the defendants h ave not alleged that the officers relied on observations made during the ini tial entry in order to obtain the

warrant. The Hutchings additionally contend that the incorre ct legal description contained in the search warrant of the section numb er where the trailer was located violated the Fourth Amendment. Even making the assumption that a warrant was in fact required for the search of the Hutchings’ trailer, this argument is without merit. Our general rule is that a “‘des cription is sufficient [if it] enable[s] the officers to ascertain the place to be searched’ with reasonable effort.” United States v. Sturmoski , 971 F.2d 452, 458 (10th Cir. 1992) (alterations in original) (quoting United States v. DePugh , 452 F.2d 915, 920 (10th Cir. 1971)). Here, the warrant identified th e Nomad trailer by brand, color,- 11 -

and serial number. To call this rather particular warrant insufficient would be to ignore the admonition that “practical accuracy rath er than technical precision controls the determination of whether a search warr ant adequately describes the place to be searched.” United States v. Occhipinti , 998 F.2d 791, 799 (10th Cir. 1993) (quoting United States v. Durrough , 927 F.2d 498, 500 (10th Cir. 1991)). Furthermore, this court takes into account the exec uting officers’ knowledge of the place to be searched in determining the adequac y of a warrant’s descriptions. Id . The affidavit accompanying the warrant request s tated that the officers had observed the Nomad the previous evening. Finally, the Hutchings argue that the warrant was i nvalid because it failed to state that a residence was to be searched, citin g our decision in U.S. v. Dahlman , 13 F.3d 1391 (10th Cir. 1993). The warrant in Dahlmansimply identified certain subdivision plots and authorizeda search of the “premises” without mentioning that there were any buildings, m uch less a residence, on the property. Id. at 1395. In contrast, the warrant here did not me rely authorize a vague search of the “premises”; it distinctly state d that buildings and vehicles on the premises were to be searched. As noted above, the warrant included a detailed description of the trailer that was the Hu tchings’ residence, identifying it as an “R.V.” Thus, Dahlmanis inapposite here.- 12 - Conclusion We find that the activities of the National Guardsm en did not violate the PCA, and that the search of the Hutchings’ marijuan a plants and trailer did not violate the Fourth Amendment. We affirm the distri ct court’s denial of the Hutchings’ motion to suppress evidence.