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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO.: 1:10-cr-16-SPM

ERIC JOSEF SCHULZ, et al.,

Defendants.

____________________________/

ORDER DENYING MOTIONS TO SUPPRESS

THIS CAUSE comes before the court on Defendant Kelly Ann Schulz’s

Motion to Suppress Statements (doc. 42), Defendant Eric Josef Schulz’s Motion

to Suppress Statements (doc. 43), Defendant Eric Josef Schulz’s Motion to

Suppress Evidence (doc. 44), Defendant Kelly Ann Schulz’s Motion to Suppress

Evidence (doc. 45) and the Government’s Response in Opposition (doc. 49). A

suppression hearing was held on September 27, 2010, and February 1, 2011.

For the reasons expressed herein, the Motions to Suppress will be denied.

BACKGROUND

Defendants are charged in a two-count indictment with conspiracy to

manufacture, distribute, and possess with intent to manufacture and distribute

more than 100 marijuana plants, and the manufacture and possession with intent

to distribute more than 100 marijuana plants. On March 11, 2010, at
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approximately 2:00 p.m., police officers and agents associated with the Drug

Enforcement Administration approached Defendants’ property for purposes of

conducting a knock and talk and to investigate the Defendants’ property from an

adjacent property. On the day before the search, an informant told Drug

Enforcement Agent Gary Worth that Defendant Eric Schulz had a marijuana

grow operation in his barn. This tip was relayed to Drug Enforcement Agent

Wayne Andrews.

The Defendants’ approximately nineteen acre property is a licensed

nursery and farm. Several varieties of trees are grown at the property, most

notably pecan trees. Somewhat near the residence, relative to the rest of the

large parcel of land, is a secured and locked barn or outbuilding, with

independent utility service and meter. Directly next to the barn is a small

greenhouse.

A group of law enforcement officers, including Task Force Officer Gerald

Hunter and Officer Conrad Hellwegge, approached Defendants from the front

driveway of the property, while another group of law enforcement officers,

including DEA Agent Andrews, approached the Defendants’ property from an

adjoining property. While approaching the Defendants’ property from the

Western adjacent property, Agent Andrews smelled flowering marijuana from the

direction of the outbuilding, from a distance of about five to six feet. He observed

that the nursery was overgrown, pots were located about 20 feet from outbuilding
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or barn, and PBC pipe was placed about 25 feet from the outbuilding, between

the outbuilding and the residence. Agent Andrews reported his observations to

the officers approaching from the front of the property via radio.

When met by the law enforcement officers, Defendants were told that the

officers had received information from an anonymous source that there was a

marijuana grow operation at the property, that the odor of marijuana had been

detected, and that the officers wanted their consent to search the property.

Defendant Eric Josef Schulz verbally consented to the search, and said that he

would point out the marijuana plants in his home. The Defendants were not

placed in handcuffs or physically restrained. As Agent Andrews approached the

Defendants from the neighboring property, he smelled marijuana from the north

and south side of the residence.

Agent Andrews asked Defendant Eric Schulz if he had guns, and

Defendant Eric Schulz admitted that the had guns upstairs in his home. Agent

Andrews told him that possession of the guns would be a felony if the officers

found marijuana. 

Law enforcement officers asked the Defendants to sign a consent to

search form. Defendant Eric Schulz was at first willing to sign the form. Eric’s

wife, Defendant Kelly Ann Schulz, asked the officers what “magic number” of

plants would determine whether they would be charged with a state or federal

offense. Officer Hellwegge told them that typically 100 plants occasions federal
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prosecution. After a private conversation with his wife, Defendant Eric Schulz

told the law enforcement officers that he preferred that they get a search

warrant.

Officer Hunter left the scene and rushed to prepare an application for a 

search warrant at the resident office. Defendants were denied permission to

return to the residence alone because Defendant Eric Schulz had already

admitted that there were guns there which might be used to hurt the officers.

Defendant Kelly Ann Schulz was escorted into the residence by law enforcement

officers to use the restroom and to get a phone and phonebook. Officers told

Defendants that they could call lawyers and recommended lawyers to them.

Defendants were not told that they could not leave the property, but made no

efforts to leave the property.

After completing the application for search warrant and the search

warrant, Officer Hunter had the warrant approved by an assistant state attorney.

The documents were then reviewed by Judge Griffis, and the search warrant

was issued. During the suppression hearing, Officer Hunter admitted that there

were mistakes in the search warrant and application. Most notably, although the

affidavit for search warrant states that Agent Andrews smelled the odor of raw

flowering marijuana coming from the outbuilding, and that Andrews’ visual

observations led him to believe that the outbuilding and residence were being

used to grow marijuana, the search warrant itself references only a search of the
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residence and premises, not the outbuilding or barn. Officer Hunter merely

omitted to include the word “outbuilding” in the search warrant, and did not

realize that “outbuilding” was not included in the search warrant until weeks or

months later.

When Officer Hunter returned to the property, the search warrant was

read to Defendants. Officers did a protective sweep of the residence before

execution of the warrant. At the time of the execution of the search warrant,

Agent Andrews asked Defendant Eric Schulz where the guns were. Defendant

Eric Schulz stated that the guns were for hunting and protection. Agent Andrews

smelled burnt marijuana on Defendant Eric Schulz’s person. 

Upon execution of the search warrant in the residence, marijuana was

found in the master suite closet and bathroom. Officer Hunter told Agent

Andrews that he could go search the outbuilding or barn, and the officers

searched the outbuilding.

DISCUSSION

A. Statements

Defendants object to the admission of inculpatory statements made to law

enforcement prior to and during the execution of the search warrant, on the

ground that the Defendants were improperly interrogated without Miranda

warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). “A suspect is only

entitled to Miranda warnings when he is interrogated while in custody, because
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such circumstances are presumed to exert pressure on him to speak.” United

States v. Lall, 607 F.3d 1277, 1284 (11th Cir. 2010). “In determining whether a

person was in custody, we look to whether he was physically deprived of his

freedom in any significant way or if a reasonable person in the defendant's

position would have understood that his freedom was so restrained.” Id. “‘[U]nder

the objective standard, the reasonable person from whose perspective custody is

defined is a reasonable innocent person.’” United States v. Street, 472 F.3d

1298, 1309 (11th Cir. 2006) (quoting United States v. Moya, 74 F.3d 1117, 1119

(11th Cir.1996) (internal quotation marks omitted)). “A defendant is in custody

for the purposes of Miranda when there has been a formal arrest or restraint on

freedom of movement of the degree associated with a formal arrest." United

States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (internal citations

omitted). In determining whether a Defendant was in custody for Miranda

purposes, courts “consider the totality of the circumstances, including whether

the officers brandished weapons or touched the defendant, whether the officers

used a language or tone indicating that compliance with their orders could be

compelled, and the location and length of the detention.” United States v.

Ubaldo-Viezca, 2010 WL 3895710, at *6 (11th Cir. 2010). “Although the location

of the interview is surely not dispositive in determining whether the interviewee

was in custody, [c]ourts are much less likely to find the circumstances custodial

when the interrogation occurs in familiar or at least neutral surroundings, such as
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the suspect's home." Brown, 441 F.3d at 1348 (internal citations omitted).

"‘Volunteered statements of any kind are not barred by the Fifth Amendment and

their admissibility is not affected by [the holding in Miranda].’" Ubaldo-Viezca,

2010 WL 3895710, at *6 (quoting Miranda, 384 U.S. at 478).

The statements at issue in the present case are not subject to

suppression pursuant to Miranda because the Defendants were not in custody

prior to or during the execution of the search warrant. There was no formal arrest

of the Defendants, and the Defendants were not subjected to conditions akin to

a formal arrest. First, the Defendants were approached by law enforcement at

their property for the purpose of a knock-and-talk, which is a legitimate police

procedure. See United States v. Taylor, 458 F.3d 1201 (11th Cir. 2006). 

“‘[O]fficers are allowed to knock on a residence’s door or otherwise approach a

residence seeking to speak to the inhabitants just as any private citizen may.’” 

Id. at 1204 (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir.

2003)). Indeed, the description of the initial encounter given by Defendant Eric

Schulz and law enforcement officers evidences a casual and consensual

conversation, rather than a custodial interview. The conversation leading up to

the Defendants’ decision that the officers obtain a search warrant before

searching the property took place in the Defendants’ own yard. While the

application for search warrant was being prepared and reviewed prior to

approval, the Defendants remained on their own property, were allowed to enter
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their residence, were restricted only to the extent reasonable to protect law

enforcement officers from the weapons Defendant Eric Schulz acknowledged

were within the home, and such restriction was explained to them. See Brown,

441 F.3d at 1348-49 (affirming district court’s denial of motion to suppress

where, “[a]lthough an officer accompanied [the defendant] throughout the house

for safety reasons, he was free to eat, smoke, use the phone, and move about

as he wished.”); United States v. Opoku, 210 F. App’x. 848, 852 (affirming district

court’s denial of motion to suppress where defendant “freely moved about his

apartment during the entire interview, albeit under the agents' supervision as a

safety precaution.”). Moreover, the Defendants were never told that they were

not free to leave and officers never brandished their weapons or made other

displays of force. In sum, there was simply no restraint on the Defendants’

freedom to the extent associated with a formal arrest.

Moreover, some of the statements sought to be suppressed by

Defendants were made voluntarily and without prompting from law enforcement

officers, and therefore are not within the ambit of the Miranda requirements for

custodial interrogations. For instance, Defendant Eric Schulz freely admitted that

he was growing marijuana at his residence after officers announced the purpose

of the knock-and-talk. Additionally, Defendant Kelly Schulz’s question regarding

the “magic number” of marijuana plants customary for federal prosecution was

not prompted by officer’s questioning.
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However, the Court notes for the record, and the Government concedes,

that the Defendants’ refusal of consent to search their property is inadmissible as

evidence of guilt at trial. See United States v. Govea, 270 F. App’x 884 (11th Cir.

2008). Accordingly, any statement or gesture attributable to either Defendant

expressing a refusal of consent to a search of the property shall not be

presented as evidence to the jury. 

B. Warrant to Search Residence

Defendants move to suppress evidence obtained during a search of the

Defendants' residence pursuant to a search warrant. "Probable cause to support

a search warrant exists when the totality of the circumstances allow a conclusion

that there is a fair probability of finding contraband or evidence [of a crime] at a

particular location." United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.

1999). "[P]robable cause is a fluid concept-turning on the assessment of

probabilities in particular factual contexts-not readily, or even usefully, reduced to

a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). "[T]he

practical nature of the magistrate's decision justifies 'great deference' upon

review and calls for upholding the magistrate's findings even in marginal or

doubtful cases." United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990).

"Where a search is conducted under the authority of a warrant, the defendant

challenging the search carries the burden of showing the warrant to be invalid."

United States v. Osborne, 630 F.2d 374, 377(5th Cir. 1980).
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In the present case, Detective Hunter’s affidavit in support of the search

warrant reports that Agent Andrews had received information regarding a

marijuana grow operation at the property, smelled raw flowering marijuana

coming from an outbuilding on the property, observed black pots and pipes at

the property, which appeared to be an inactive plant nursery, and therefore

believed that the outbuilding and residence were being used to cultivate

marijuana. Additionally, the affidavit reports that Defendant Kelly Schulz asked

an agent what was the “magic number” of marijuana plants the would subject the

couple to federal prosecution. As expressed above, although the refusal of

consent to a warrantless search cannot be presented as evidence of guilt to a

jury at trial, incriminating statements or requests voluntarily made to law

enforcement officers outside the context of a custodial interrogation are not

constitutionally protected. The evidence proposed to be found at the residence

included not only marijuana, but also drug paraphernalia and packaging, written

and computerized records of illegal drug activity, and currency related to drug

sales, all of which could reasonably be expected to be found at a residence on

the same property as a marijuana grow operation. Accordingly, upon a

consideration of the totality of the circumstances presented in the affidavit, while

the showing of probable cause for the search of the residence is marginal,

affording great deference to the magistrate's determination as is required, the

Court concludes that sufficient probable cause exists to support the issuance of
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the search warrant.

Defendants also make a Franks challenge to the search warrant. See

Franks v. Delaware, 438 U.S. 154 (1978). To prevail on the Franks challenge,

Defendants must show two things by a preponderance of the evidence: first,

that Detective Hunter intentionally or recklessly made misstatements or

omissions in the search warrant affidavit; and second, that the misstatements or

omissions were material to a proper determination of probable cause. United

States v. Burston, 159 F.3d 1328, 1333 (11th Cir. 1998). The Defendants can

make neither showing. Defendants contend that the failure to include in the

affidavit that the nursery business was legitimate, and that the barn was outside

the curtilage of the residence and separately metered amounted to intentionally

or recklessly made misstatements or omissions. The Court finds that, in the

haste to prepare the search warrant, the failure to include the adjective

“legitimate” in the description of what appeared to officers to be an inactive

nursery was neither intentional nor reckless. Moreover, even had the nursery

been described as legitimate in the affidavit and the additional information

regarding the barn been included, there would still be sufficient probable cause

for the issuance of the search warrant.

Additionally, even if the search warrant were not supported by probable

cause, the evidence obtained pursuant to the execution of the search warrant

should not be excluded pursuant to the good faith exception to the exclusionary
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rule first articulated in United States v. Leon, 468 U.S. 897 (1984). “Leon held

that the exclusionary rule does not bar the use of evidence obtained by officers

acting in good faith reliance on a warrant which is later found not to be supported

by probable cause.” United States v. Herring, 492 F.3d 1212, 1215 (11th Cir.

2007). “[T]he officer's reliance on the magistrate's probable-cause determination

and on the technical sufficiency of the warrant he issues must be objectively

reasonable[.]” Leon, 468 U.S. at 922. “[A] reviewing court may look outside the

four corners of the affidavit in determining whether an officer acted in good faith

when relying upon an invalid warrant.” United States v. Martin, 297 F.3d 1308,

1309 (11th Cir. 2002). “[T]he Government bears the burden of demonstrating the

applicability of the Leon good faith exception[.]” United States v. Robinson, 336

F.3d 1293, 1297 (11th Cir. 2003).

The good faith exception does not apply in the following situations:

(1) where the magistrate or judge in issuing a warrant was 

misled by information in an affidavit that the affiant knew was 

false or would have known was false except for his reckless 

disregard of the truth; (2) where the issuing magistrate wholly 

abandoned his judicial role; (3) where the affidavit supporting the

warrant is so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable; and (4) where,

depending upon the circumstances of the particular case, a 

warrant is so facially deficient- i.e., in failing to particularize the 

place to be searched or the things to be seized-that the executing 

officers cannot reasonably presume it to be valid.

Id. at 1296.

The Court determines that no exception to the Leon good faith exception
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is present in this case. First, as expressed above in reference to the Franks

challenge, Officer Hunter did not include any false information in support of the

application for search warrant, and the information regarding the legitimacy of

the nursery which the Defendants assert should have been included in the

affidavit was not intentionally omitted with the intent to mislead and would not

have affected the magistrate’s determination of probable cause. Additionally, the

affidavit for search warrant was reviewed by Judge Griffis, and there is no

indication that he abandoned his role. Moreover, as expressed more fully above,

there was a factual basis in support of the magistrate’s determination that

sufficient probable cause existed for the issuance of the search warrant such

that the officers reliance on the warrant was reasonable and in good faith. The

officer’s good faith reliance on the search warrant is bolstered by factual

evidence of criminal activity which could have been, but was not, included in the

application for the search warrant, such as the odor of marijuana coming from

the home and Defendant Eric Schulz’s statements admitting that he grew

marijuana. Lastly, the warrant is not facially deficient in the description of the

residence or the items to be seized. Accordingly, even if the warrant were not

supported by probable cause, the officers’ good faith reliance on the validity of

the warrant in the search of the home renders the exclusionary remedy

inappropriate.
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C. Search of Outbuilding

Defendants object to the search of the outbuilding or barn, as the

outbuilding was not specifically referenced in the search warrant as a location to

be searched, due to Officer Hunter’s inadvertent omission. In this case, the

Defendants and Government agree that the barn or outbuilding was outside the

curtilage of the residence. Upon consideration of the distance of the outbuilding

from the home, the topographical separation of the area immediately

surrounding the home from the outbuilding area, and the non-domestic use to

which the outbuilding was put, the Court determines that the outbuilding was

outside the curtilage of the home. See United States v. Dunn, 480 U.S. 294, 301

(1987).

Established Eleventh Circuit precedent makes clear that “‘there is no

legitimate expectation of privacy in outbuildings and open fields, even if fenced,

unless they are part of the curtilage, or the immediate appurtenances, of a

home.’" United States v. Hatch, 931 F.2d 1478, 1481 (11th Cir. 1991) (quoting

United States v. Long, 674 F.2d 848, 853 (11th Cir. 1982)); see also United

States v. Diaz, 2010 WL 4941963 (11th Cir. 2010). Accordingly, the search of

the outbuilding could not have violated the protections of the Fourth Amendment.

Moreover, even if the Defendants did have a legitimate expectation of

privacy in the outbuilding, the exclusionary rule is inapplicable to the evidence

seized as a result of the search of the outbuilding because of the law
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enforcement officers’ good faith. The decision of the Eleventh Circuit Court of

Appeals in United States v. Herring, 492 F.3d 1212 (11th Cir. 2007), is instructive

here. In that case, law enforcement officers from one jurisdiction made an arrest

of a person and discovered contraband pursuant to an assurance from a

separate law enforcement agency in another jurisdiction that there was an

outstanding warrant for the person arrested, although it was discovered later that

the warrant had been recalled. The Court of Appeals determined that the

exclusionary rule is inapplicable under those circumstances, and identified three

conditions necessary for the application of the exclusionary rule: (1) misconduct

by law enforcement, (2) application of the rule must result in appreciable

deterrence of that misconduct, and (3) the benefits of applying the exclusionary

rule must not be outweighed by the costs. Herring, 492 F.3d at 1217.

The conditions for application of the exclusionary rule are clearly not

present in this case as it relates to the search of the outbuilding. First, there was

no law enforcement misconduct. The failure to specifically include the outbuilding

in the search warrant as an area to be searched is the result of Officer Hunter’s

negligence in the haste to prepare the warrant application. There is no dispute

that, had the outbuilding been listed, there would have been probable cause for

the search thereof. Moreover, when Officer Hunter instructed the other officers

that they could search the barn, he was not aware that he had inadvertently

failed to include the word “outbuilding” in the search warrant, and believed that
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the search of the outbuilding pursuant to the warrant was permissible. The other

officers relied in good faith on Officer Hunter’s assurance in the search of the

outbuilding, and their reliance thereon was not unreasonable.

Additionally, there will be no appreciable deterrence upon application of

the exclusionary rule, because the mistakes in this case were the result of mere

negligence, not bad faith misconduct. “Deterrents work best where the targeted

conduct results from conscious decision making, because only if the decision

maker considers the possible results of her actions can she be deterred.” Id. at

1218.

Lastly, the minimal deterrence benefits of applying the exclusionary rule to

evidence obtained during the search of the outbuilding cannot outweigh the cost

of excluding the probative evidence of criminal conduct.

CONCLUSION

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that

Defendants’ Motions to Suppress (docs. 42, 43, 44, 45) are denied.

DONE AND ORDERED this twenty-fourth day of February, 2011.

s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge