1 Chief Judge of the Eastern District of Texas, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 92-3882

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

BRIAN McKEEVER,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________________________________________________ October 15, 1993

Before KING and JOLLY, Circuit Judges, and PARKER 1

, District Judge.

PER CURIAM:

On July 23, 1992, Special Agent Carl W. Pike (Pike) of the Drug

Enforcement Administration (DEA) applied for two warrants to search

Appellee, Brian McKeever's rural property, and the property next to

his that was owned by his parents. The Magistrate issued a search

warrant for each property. The warrants were executed on July 27,

1993, resulting in the seizure of miscellaneous papers, marijuana,

seeds, grow lights, fertilizer, other marijuana cultivation

equipment and twenty-eight (28) marijuana plants.

McKeever was indicted for knowingly and intentionally

manufacturing marijuana. Prior to trial, McKeever filed a motion2

to suppress evidence seized during the execution of two search

warrants. The district court, after hearing, granted the motion,

a nd continued the trial, pending the outcome of the Government's

appeal.

McKeever's Motion to Suppress alleged that there was

insufficient probable cause for the magistrate to issue the two

warrants because the affidavit underlying the search warrants did

not supply material dates or contain current information, did not

corroborate the information supplied by or establish the veracity

and reliability of the confidential informant (CI), and contained

information obtained through a prior illegal search. In response,

the government argued tha t the affidavits clearly established

probable cause for issuance of the warrants, but that, even if the

warrants were defective, the facts in the affidavits were

sufficient for law enforcement officers to rely objectively in good

faith on the warrants, which would render the evidence admissible

at trial. The district court concluded that "the 'good faith

exception' of [ United States v. ] Leon

, 468 U.S. 897 (1984) and its

progeny is not applicable because the 'warrant was based on an

affidavit so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.'"

Appellant urges two related grounds for reversal. First that the

district court erred in finding that the affidavit in support of

the search warrant did not set forth probable cause, and second

that Agent Pike acted in objectively reasonable good faith belief

that the warrant was valid. Principles of judicial restraint and3

precedent dictate that, in most cases, we should not reach the

probable cause issue if a decision on the admissibility of the

e vidence under the good-faith exception of L eon will resolve the

matter. U

nited States v. Craig

, 861 F.2d 818, 820 (5th Cir. 1988).

Because we find that the affidavit underlying the warrants was

sufficient to support the magistrate's finding of probable cause,

we make no distinction in our analysis between the validity of the

warrant and the agent's good faith execution of the warrant. The

district court's order suppressing the evidence seized, and

McKeever's resulting inculpatory statement is, therefore, reversed.

STANDARD OF REVIEW

On appeal, this Court will "'construe the sufficiency of the

affidavit independently of the district court' and [is] not limited

by the 'clear ly erroneous' standard of review." U nited States v.

Jackson , 818 F.2d 345, 348 (5th Cir. 1987) (quoting United States

v. Freeman

, 685 F.2d 942, 948 (5th Cir. 1982)). Like the district

court, however, this Court o wes "'deference to the magistrate's

determination of probable cause and...must construe the affidavit

in a common-sense manner.'" J ackson

, 818 F.2d at 348 (quoting

United States v. McKinney , 758 F.2d 1036, 1042 (5th Cir. 1985)).

THE MERITS

The government argues that the district court erred in finding

that the affidavi t in support of the search warrants did not set

forth probable cause. The applications for the two search warrants

were supported by identical affidavits. Our task involves a two

step analysis. First, are any pieces of information set out in the4

affidavit subject to exclusion because of hearsay, la ck of

corroboration, prior illegal search, or other challenge? Second,

does the information which was properly before the magistrate

amount to probable cause? The probable cause determination is

simply a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit, there is a fair

probability that contraband or evidence of a crime will be found in

a particular place. U nited States v. Peden

, 891 F.2d 514, 518 (5th

Cir. 1989); Illinois v. Gates , 462 U.S. 213, 239, 103 S.Ct. 2317,

76 L.Ed.2d 527 (1983)

Pike begins the affidavit with a recitation of Pike's

experience and training in the detection of clandestine marijuana

cultivation facilities. He continues with a detailed profile of

the typical marijuana production operation. McKeever did not

challenge the inclusion of these first two parts of the affidavit.

Next Pike sets out the information gathered in the

investigation of McKeever. On October 4, 1989, McKeever received

a shipment of merchandise from Dansco, an outfit engaged in the

sale of equipment for use in hydr oponic gardening, and which

advertised in High Times

, a magazine that promotes the cultivation

and use of marijuana. On October 1, 1990, McKeever purchased the

real estate adjoining his parents' property. The affidavit states

that McKeever uses (present tense verb, but no date) his parents'

mailing address. Again, there is no challenge to the inclusion of

these items.

CONFIDENTIAL INFORMANT STATEMENTS5

The affidavit next recites a statement by a confidential

informant of the Louisian a State Police (CI), that McKeever

purchased the property and built a structure in which he intended

to cultivate marijuana. The CI further stated that he has

purchased marijuana fromMcKeever on several occasions and that

McKeever's parent s have full knowledge of McKeever's marijuana

trafficking. McKeever challenged the inclusion of the CI's

statements in the affidavit based on lack of corroboration and lack

of dates. The fact that the CI's statements were against his own

penal interest amounts to substantial corroboration. United States

v. Harris

, 403 U.S. 573, 91 S.Ct. 2075 (1971). However, the agent

also corroborated the purchase of the property and the building of

the st ructure. The affidavit does not date the purchase of the

marijuana claimed by the CI, and the magistrate would not know if

the alleged sale was too remote in time to consider for purposes of

determining probable cause. However, the date of the purchase of

the property was in the affid avit and the magistrate could

reasonably conclude that the construction of the A-frame building

commenced after October 1, 1990.

ON SITE SURVEILLANCE

The final segment of the affidavit concerns information

gathered in an on site surveillance of McKeever's property. The

affidavit does not contain the date on which the on site

surveillance occurred, but because McKeever's A-frame building was

referenced in the surveillance report, the magistrate could again

only conclude that the date of the surveillance was subsequent to6

the purchase of the property and the construction of that building.

a. Staleness

The information given to a magistrate in an application for a

search warrant must be timely and probable cause must be found to

exist at the time the warrant issues. The proof must be of facts

closely related in time to the issuance of the warrant in order to

justify a finding of probable cause at that time. U nited States v.

Hyde

, 574 F.2d 856, 864 (5th Cir. 1978). However, "if an affidavit

recites activity indicating protracted or continuous conduct, time

is of less significance." Id . at 865.

This Court is not convinced that the lack of specific dates

deprived the magistrate of essen tial information in determining

probable cause. The affidavit alleged a scheme that included the

purchase of land, the construction of a building, and the setup of

a hydroponic marijuana growing facility with equi pment purchased

from a distributor specializing in such equipment. The entire

scheme was limited to a time frame of approximately twenty-one (21)

months between the purchase of the property and the application for

the search warrant. In addition to the common sense conclusion

that the cons truction of the A-frame structure consumed some

portion of the 21 month period, the affidavit sets out the long

termnature of marijuana cultivation: "Marijuana plants grown

indoors take ten to twelve weeks to reach full maturity....It is a

common practice in indoor marijuana growing to stagger the planting

process in order to have a constant, year round harvest of finished

product." "[I]f the information of the affidavit clearly shows a7

longstanding, ongoing pattern of criminal activity, even if fairly

long periods of time have lapsed between the information and the

issuance of the warrant, the information need not be regarded as

stale." U

nited States v. Craig

, 861 F.2d 818, 822 (5th Cir. 1988)

(quoting United States v. Webster

, 734 F.2d 1048, 1056 (5th Cir.

1984), cert. denied

, 469 U.S. 1073 (1984). Also, the nature of

the evidence sought is relevant. Courts demand less current

information if the evidence sought is of the sort that can be

reasonably be expected to be kept for long periods of time in the

place to be searched. I d

. at 832. We find that, given the

specific facts of this case, the magistrate was not obligated to

exclude the information gathered in the on site surveillance or the

informant's statements concerning the purchase of property,

construction of the building, and the older McKeever's knowledge on

the basis of staleness. The CI's statements that he bought

marijuana from McKeever several times may also be cons idered as

part of the larger picture of McKeever's ongoing involvement with

illicit marijuana trade. The magistrate must, of course, be

cognizant of the limited weight that the allegation was entitled to

because the affidavit failed to include the date that the sales

allegedly took place.

b. Prior Illegal Search

McKeever argues that the surveillance information recited in

the affidavit was obtained as a res ult of an illegal search and

thus cannot be used to support the issuance of the search warrants.

Agents crossed private property belonging to McKeever's parents by8

going down the common drive between the two properties. Agents

then entered McKeever's priva te property in order to observe the

marijuana plants concealed in the brush.

The Fourth Amendment does not provide blanket protection

against searches and seiz ures on private property. Rather, the

Fourth Amendment protects those areas in which citizens have a

reasonable expectation of privacy. K atz v. United States

, 399 U.S.

347, 88 S.Ct. 507 (1967). McKeever, in asserting that the agents

violated his reasonable expectation of privacy in the marijuana

plot, attempts to establish the reasonableness of that expectation

under Fourth Amendment jurisprudence. McKeever argued that the Aframe structure was his home and the marijuana plants were within

the curtilage of that home. McKeever urges us to assume that the

district court's opinion implicitly found that the A-frame

structure was McKeever's ho me and the underbrush behind the

structure was a place where society was prepared to recognize a

r easonable expectation of privacy, and to affirm this implicit

holding. We decline, as we find no basis for this assumption in

the lower court's opinion. The lower court's order referred to

"Mr. and Mrs. McKeever's home" and to the "A-frame structure."

The Court made no finding that the A-frame structure was McKeever's

home, nor is there any reference to the structure as a home, nor to

the area where the plants were concealed as curtilage. The

district court made no finding that the surveillance amounted to an

illegal search, the results of which must therefore be deleted from

the magistrate's consideration in determining probable cause.9

However, in order to decide whether to affirm or reverse the

court's decision that the warrants were based on an affidavit so

lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonabl e, we must determine if the

information from the surveillance can be legally considered in the

equation.

Assuming, without so finding, that McKeever could establish that

the A-frame is his home, we turn to the four fact specific factors

set out in United States v. Pace , 955 F.2d 270, 273 n.2 (5th Cir.

1992) for determining whether a search was within the protected

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.

After examining the photographs admitted into evidence, as well

as the testimony, we conclude that the marijuana plants were not in

the curtilage of the A-frame.

Although it seems that it would be easy to establish exactly

how far the marijuana plants were from the A-frame, the evidence

before the court was not clear. McKeever testified that the

buckets were spread out in some brush that began approximately 35

to 50 feet away from the structure, but was not clear about how far

the buckets were from the structure. Agent Pike testified that the

buckets were approximately 50 yards away from the house. Based on

the pictures admitted into evidence at the hearing, it appears that

the brush did begin about 35 to 5 0 feet from the back of the A-10

frame, but it is not possible to determine how far back i nto the

brush the pots were located.

Second, evidence established that Mckeever's ten acres were

fenced on three sides, and no fence or other enclos ure had been

built in the immediate area surrounding the A-frame, or between the

A-frame and the marijuana pots. No gate blocked the common drive

into the area, and no fence block ed entrance onto McKeever's

property from the common drive. In fact the agents did not cross

any fences between the public road and the marijuana pots.

Third, McKeever did not use the area where the pots were hidden

for anything except hiding mariju ana pots. It was not part of a

yard, or garden, or storage area, or walkway among out buildings,

nor did it serve any other purpose associated with the normal use

of a private residence.

Fourth, McKeever attempted to conceal the area by not cutting

down the brush, or mowing the area in questio n

, and by the

placement of the building an d marijuana plot out of site of the

public road. However, there was no privacy fence, or other

enclosure erected in an attempt to establish a privacy interest in

the area in question.

The cleared area around the A-frame could be claimed as

curtilage, but to expand the curtilage some undefined distance into

the underbrush would be to ignore the concept of curtilage, and

simply extend Fourth Amendment protection to the boundary lines of

privately owned property. The open fields doctrine teaches that

t he Fourth Amendment provides no protection for items on priv ate11

property outs ide of a structure or the curtilage of a home, or

other place where society is prepared to recognize a reasonable

expectation of privacy. The fact that the officer conducting the

surveillance violated trespass laws has no relevance to the Fourth

Amendment inquiry. O liver v. United States

, 466 U.S. 170, 183, 104

S.Ct. 1735 1743-44, 80 L.Ed.2d 214 (1984). We find that McKeever

has not estab lished an expectation of privacy that society is

prepared t o consider reasonable in the area where the marijuana

plants were hidden. Therefore, there is no basis on which to

exclude the information gathered during the on site surveillance

from consideration in determining probable cause to issue the

warrants.

CONCLUSION

Given all the facts and circumstances set out in the

affidavits, and not excludable on legal grounds, we find that the

magistrate's determination that there was probable cause to issue

the search warrants was correct. Therefore, we reverse the

district court's decision to suppress the evidence gained as a

result of the execution of the warrants, and remand for further

proceedings.