Case 2:07-cr-00004-RHB Doc #31 Filed 10/05/07 Page 1 of 7 Page ID#85
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MICHIGAN
`NORTHERN DIVISION
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`BRIAN PETER BENZIE,
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`Defendant.
`__________________________________/
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` Case No. 2:07-cr-4
` HON. ROBERT HOLMES BELL
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`REPORT AND RECOMMENDATION
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`Defendant Brian Peter Benzie is charged in an Indictment with Possession With Intent
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`to Distribute Marijuana and Manufacturing Marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21
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`U.S.C. § 841(b)(1)(B)(vii). Defendant has filed a motion to suppress evidence obtained by police
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`as a result of an alleged illegal search and seizure. The matter has been fully briefed and testimony
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`was presented on October 4, 2007.
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`On August 17, 2006, the Michigan National Guard, while conducting helicopter
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`surveillance, observed marijuana plants growing on Defendant’s camp property. Michigan State
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`Police troopers were radioed and they went to the property where they met Defendant’s 18-year-old
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`son, Bruce Benzie. Bruce Benzie was watching his two-year-old sister on the property at the time.
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`Bruce Benzie gave the troopers verbal and written consent to search the property. The troopers
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`discovered four separate marijuana plots. The troopers questioned Bruce Benzie at the camp. Bruce
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`Benzie stated that the camp belonged to his father, that he was not growing marijuana, that he spent
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` “Camp” is a term used in the Upper Peninsula of Michigan to refer to a cottage or dwelling in a remote
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`area used for recreation.
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`a lot of time at the camp, that his permanent residence was in Three Lakes, that his father spent a lot
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`of time at the camp, and that his father maintained the property. The nearest plot was approximately
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`75 yards from the camp, down a foot path from the mowed area of the yard. Three other plots were
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`in that area. Bruce Benzie stated that he spent 75 percent of his time at the camp during the summer
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`and identified the bed where he slept.
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`Defendant argues that the evidence must be suppressed because there was no warrant
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`to search the property, the search occurred within the curtilage of his home, the plants were not in
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`an open field but immediately surrounding the home, the aerial surveillance was improper, and the
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`consent to search was invalid.
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`A hearing was held on October 4, 2007, during which Officer Mark Joseph Snauko
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`of the Michigan Army National Guard Counter Drug Division testified that he flew over the Benzie
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`property and photographed the area using a hand held camera. Officer Snauko testified that they had
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`received a tip from Ron Koski of the Upper Peninsula Substance Enforcement Team (UPSET),
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`which directed them to fly over the general area. Officer Snauko further testified that he flew no
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`lower than 500 feet above the ground and that he observed certain cultivated areas containing bright
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`green plants which had a distinctive texture. Officer Snauko described this texture as having a
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`“fuzzy look.” Officer Snauko testified that he had been conducting aerial searches for drugs for six
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`years and had discovered over 1000 marijuana plots.
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`Michigan State Police Trooper William Leubs testified that he searched the Benzie
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`property on August 17, 2006, as part of the UPSET team. Trooper Leubs stated that at the direction
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`of Officer Snauko, he entered the property through a closed unlocked gate. Trooper Leubs then
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`proceeded to the main building where he encountered Bruce Benzie. After ascertaining Bruce’s
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`identity, date of birth, and permanent residence, Trooper Leubs informed him that marijuana plants
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`had been observed from the air. Bruce stated that he did not know of any marijuana. Trooper Leubs
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`then indicated that it was not a good idea to have marijuana near the camp and Bruce agreed. Bruce
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`then consented to accompany Trooper Leubs to the nearest plot.
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`Trooper Leubs testified that the plot of marijuana plants nearest to the main building
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`was approximately 100 yards away and that there was a trail leading to the area. Trooper Leubs also
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`testified that there was a second plot approximately 100 feet from the first plot and a third plot 50
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`feet from the second plot, with trails leading to each. Trooper Leubs stated that no effort had been
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`made to obtain a warrant. He also conceded that there were no exigent circumstances other than the
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`possible destruction of the plants and that he could have secured the area while he obtained a
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`warrant.
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`Initially, it is noted that Defendant could not reasonably have expected that his
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`property was immune from examination by an officer seated in an aircraft. Florida v. Riley, 488
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`U.S. 445, 450 (1989). In this case, as in Riley, the observation was made from a helicopter, but as
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`noted in that case, “‘private and commercial flight [by helicopter] in the public airways is routine’
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`in this country.” Id. (citing California v. Ciraolo, 476 U.S. 207 (1986)). Therefore, no warrant was
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`required for the helicopter surveillance.
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`A warrantless search of an open field does not violate the Fourth Amendment. In
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`United States v. Dunn,480 U.S. 294 (1987), the Supreme Court held that police officers did not
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`violate the Fourth Amendment when they entered the defendant’s property and crossed several
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`fences with no trespassing signs to see inside a barn where they discovered evidence of drug
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`manufacturing, because the officers stood in an open field outside the curtilage surrounding the
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`defendant’s home when they shined a flashlight into the barn. Factors that must be considered when
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`determining whether the discovery was lawful are (1) the proximity of the area claimed to be
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`curtilage to the home; (2) whether the area is included within the enclosure surrounding the home;
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`(3) the nature of the uses to which the area is put; and (4) steps taken by the resident to protect the
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`area from observation by people passing by. United States v. Jenkins, 124 F.3d 768, 772 (6th Cir.
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`1997).
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`The warrantless entry of farmland by police officers ignoring no trespassing signs and
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`climbing a fence and a locked gate before discovering potted marijuana plants, did not violate the
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`Fourth Amendment because the discovery was in an open field. United States v. Burton, 894 F.2d
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`188, 190 (6th Cir. 1990). The Fourth Amendment right to be free from a search and seizure without
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`a warrant extends to the curtilage area of a house. Jenkins, 124 F.3d at 772. Curtilage includes those
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`areas “to which extends the intimate activity associated with the ‘sanctity of a mans’ home and
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`privacies of life.’” Id. citing Oliver v. United States, 466 U.S. 170, 180 (1984), and Boyd v. United
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`States, 116 U.S. 616. 630 (1886). In Jenkins a helicopter crew discovered marijuana growing in a
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`wooded field behind the defendant’s home. The Sixth Circuit concluded that a small enclosed back
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`yard in close proximity to the home used for such things as planting and drying clothes and well
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`shielded from the public is within the curtilage area of the residence. The defendant lived on a multi-
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`acre farm, which included some heavily wooded land. The defendant’s back yard consisted of a
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`neatly trimmed lawn, small trees, a flower garden, and a shed. The wooded field behind the back
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`yard was accessible by a gate. A task force consisting of State Police troopers and National
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`Guardsmen went to the property without a warrant. The defendant was informed that marijuana was
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`growing on the property. She gave the questioning officers directions, the officers parked their
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`vehicles in the driveway, and began wandering around the defendant’s back yard, where the gate
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`leading to the wooded field was found. Various team members and at least one vehicle entered the
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`field from the back yard gate. In the back yard, a green spray can, hog ring containers, pliers, tin
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`snips, and a mothball box were found. Marijuana plants were discovered in the wooded field. The
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`court suppressed the evidence seized from the back yard because the back yard was part of the
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`curtilage. However, the search of the wooded field was considered lawful.
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`In United States v. Rapanos, 115 F.3d 367, 373 (6th Cir. 1997), the Sixth Circuit
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`addressed a situation in which the area at issue was surrounded by a fence and a tall hedgerow of
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`cleared debris, entry onto the land could be made only through a locked gate, and the land had
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`undergone extensive alteration and development for economic purposes and was clearly commercial
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`property. The Rapanos court found that none of those factors had any bearing on whether the
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`property was “open fields.” Id. The Sixth Circuit noted:
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`The Supreme Court has defined open fields so broadly that, for
`constitutional purposes, even property that is neither open nor a field
`(such as a thickly wooded area) can be treated as an open field.
`Oliver, 466 U.S. at 180 n. 11, 104 S.Ct. at 1742 n. 11. As noted
`earlier, moreover, the presence of a fence or gate or a “No
`Trespassing” sign does not engender a reasonable expectation of
`privacy for Fourth Amendment purposes. Id. at 182, 104 S.Ct. at
`1743; see also United States v. Burton, 894 F.2d 188, 190 (6th Cir.),
`cert. denied, 498 U.S. 857, 111 S.Ct. 157, 112 L.Ed.2d 123 (1990).
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`Id.
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`In United States v. Hoskins, 735 F.2d 1006 (1984), the Sixth Circuit found that the
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`Fourth Amendment does not protect fields which are open and not adjacent to an otherwise protected
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`area, even where there are “no trespassing” signs and the area is accessible only by a private road.
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`Id. at 1006-1007. In Hoskins, the Kentucky State Police flew over the defendant’s property after
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`receiving a tip from an anonymous informant. The police spotted what they believed to be a
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`marijuana patch. A few days later, members of the State Police and a German Shepard dog traveled
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`over a mountain and through a hollow toward the rear of the defendant’s property. A private road
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`in front of the property contained a posted, but overgrown, “no trespassing” sign which the officers
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`passed as they approached the home. The officers received permission from the defendant to search
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`the property and discovered a large plot of marijuana. Referring to the holding in United States v.
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`Oliver, the Sixth Circuit noted that society is no longer prepared to recognize as “reasonable” any
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`privacy interest in the parts of a landowner’s property which are not directly adjacent to the home.
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`Hoskins, 735 F.2d at 1007.
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`As noted above, the test for determining whether the discovery was lawful includes
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`the following factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether
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`the area is included within the enclosure surrounding the home; (3) the nature of the uses to which
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`the area is put; and (4) steps taken by the resident to protect the area from observation by people
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`passing by. United States v. Jenkins, 124 F.3d 768, 772 (6th Cir. 1997). In this case, the nearest
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`marijuana plants were found in a plot approximately 100 yards from the main building in an
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`ungroomed portion of the property which was accessible by dirt trails. The marijuana plots were not
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`included within the enclosure surrounding the main camp building. See Government’s Exh. 1-4.
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`The areas in which the marijuana plots were found do not appear to have been used for anything
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`other than to grow marijuana plants. See Government’s Exh. 1-6. Finally, Defendant did not take
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`any steps to protect the area from observation. Accordingly, the undersigned concludes that the
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`plants were in an “open field” and are not afforded any Fourth Amendment protection.
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` Therefore, it is recommended that Defendant’s Motion to Suppress Evidence (Docket
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`#17) be denied.
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`NOTICE TO PARTIES: Objections to this Report and Recommendation must be
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`served on opposing parties and filed with the Clerk of the Court within ten (10) days of receipt of
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`this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); W.D. Mich.
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`LCivR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal.
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`United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140
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`(1985).
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` /s/ Timothy P. Greeley
`TIMOTHY P. GREELEY
`UNITED STATES MAGISTRATE JUDGE
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`Dated: October 5, 2007
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