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State v. Howard

Court of Appeals of Idaho

December 19, 2013

STATE of Idaho, Plaintiff-Respondent,
Derk Warner HOWARD, Defendant-Appellant.

Page 855

Anthony M. Valdez, Twin Falls, for appellant.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

WALTERS, Judge Pro Tem.

Derk Warner Howard appeals from the district court's denial of his motion to suppress evidence of a marijuana grow located in his shed on the curtilage of his home. The plants were discovered by police after they went to his front door, knocked, and while at the front door, smelled fresh growing marijuana. Howard contends that under recent United States Supreme Court precedent, Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), the police officers' entry onto the curtilage of his home and up to his front door (the location where an officer smelled the marijuana growing in the shed) was an illegal warrantless search and, in the alternative, further contends that a posted " no trespassing" sign eliminated any implied invitation for visitors to enter the curtilage of his home. Howard further challenges the district court's credibility determinations leading to the court's ultimate finding that the officers did not further intrude on the curtilage of the home after visiting the front door of the home. We affirm the denial of the motion to suppress.



After Howard was charged with manufacturing marijuana, he moved to suppress drug evidence. At the suppression hearing, Detective Jared Sweesy and Trooper Steve Otto of the Idaho State Police; Howard; and Howard's acquaintance, Ben Hepworth, testified to the police officers' August 31, 2011, warrantless conduct at and around Howard's place of residence.

Page 856

On August 30, 2011, Sweesy received an anonymous tip that there was marijuana being grown in a ravine proximate to the Howard residence, located in a rural area near the town of Bliss, Idaho. The tipster also provided Howard's name and the address of his home, which was the only residential structure for miles around. The next day, August 31, 2011, Sweesy, Otto, and a third officer, Detective Ward,[1] went to the scene in a single, unmarked police vehicle with the intent to search the ravine. The ravine and the Howard residence are accessible by a " Road" running between " old Highway 30" at a location to the southwest of the Howard residence to Spring Cove Road at a location nearby and to the northeast of the Howard residence. Because using the Spring Cove entrance would require the officers to drive right past the Howard residence on the Road, in order not to alert Howard to their presence, the officers decided to use the Highway 30 entrance.

Sweesy assumed, without checking, that the Road was a public road. It was not; the Road was and is a private road, running through property owned by neighbors. Howard's landlord enjoys an easement on the Road and Howard " maintains" it. In addition, there is a fence running on both sides of the " cattle guard" entrance to the Road off of Highway 30 and on the second fencepost to the left is a small " no trespassing" sign. Both Sweesy and Otto testified that they did not see this sign when they entered onto the Road.

The ravine runs east-west and is located to the southwest and directly south of the Howard residence at its end. The three officers drove up the Road about one-half mile to a " Y" intersection, turned off the Road to another road on the right, and drove up to the west-most side of the ravine. The officers then foot-searched the ravine to the east to its end (about another one-half of a mile) and found nothing. The officers walked back to the west to their vehicle and, in Sweesy's words, the officers " then made the decision that we would just contact Mr. Howard and advise him of, you know, the tip that we got and talk to him about it."

The officers then drove up the Road about another one-half mile to the Howard residence and parked at the head of Howard's driveway abutting the Road just to the south of the residence. Sweesy and Ward walked up to the residence and knocked on the front door. While at the door, Sweesy smelled fresh growing marijuana in the breeze blowing from the west. When no one answered, the officers returned to the Road.

The district court in its decision concluded that the curtilage of the Howard residence was essentially triangle-shaped, with the borders being a canal to the northeast of the home, fence posts without a fence running just north of and parallel to the Road to the south of the home, and, to the northwest, a " fence line" meeting the Road at its south-most point and the canal at its north-most point.[2] Because of his detection of marijuana odor while at the door to the Howard residence, Sweesy suspected that there was an active grow located in a shed located to the west and just to the north of the Howard home. At some point, Sweesy began to take photographs from the Road, starting at the driveway area and moving west to a point on the Road directly south of the shed, continuing down the Road to the corner of the Road and the fence line, and then up the west side of the fence line to the north ending at a location just to the west of the shed.[3] Both Sweesy and Otto testified that from the Road directly to the south of the shed they could see, with the naked eye, strings tied to the rafters of the building which are commonly used to support growing marijuana plants. Sweesy also said that when he ended up next to the shed to the west of the northwest " fence line" he could clearly see marijuana plants growing in the shed through slats in the walls of the dilapidated building.

Page 857

In short, both Sweesy and Otto testified that after the initial warrantless officer entry onto the Howard curtilage to go up to the front door of the Howard residence and the return back to the Road, the officers did not again invade the curtilage of the residence. Howard and his witness, Ben Hepworth, testified differently. Hepworth, an acquaintance of Howard and also an employee of the canal company, said that he was driving past the residence on the canal lateral when he noticed three people who he assumed were looking at Howard's vehicles for sale. Hepworth testified that he saw the three men on the east side of the fence line close up to the shed, and thus, according to Hepworth, within the curtilage of the property. Hepworth called Howard who arrived at the scene shortly thereafter. Similar to Hepworth, Howard testified that when he arrived, Detective Ward and Trooper Otto were on the curtilage of his property near the Road and Detective Sweesy was on the curtilage of his property up near the shed. Sweesy later confronted Howard with his detection of the odor of the marijuana while he was located at the front door and with his observations of the " strings" and the marijuana plants in the shed. Based upon these representations, Howard granted Sweesy consent to physically search the property and seize the marijuana plants.

Thus, Sweesy's and Otto's testimony contradicted the testimony of Hepworth and Howard as to whether any of the officers' further observations (most specifically Sweesy's observation of the marijuana plants) were made from within the curtilage. The district court found the officers' testimony more credible, crediting as true their testimony that, after returning to the Road from the front door of the house, they never again entered the curtilage of the home but instead restricted their movements to the Road and west of the fence line. In denying the motion to suppress, the district court held, in essence, that the cattle guard no trespassing sign was ineffective to keep the officers off of the Road, that Sweesy and Ward's entry onto the curtilage and travel to Howard's front door was lawful and, therefore, Sweesy's detection of the odor of growing marijuana from that vantage point was likewise lawful, and that the officers' viewing of and photographing of the shed was lawful because the officers did not further invade the curtilage to do so, but instead restricted ...

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