Tenth Circuit US v. Shuck 12-5072

Decision here.

   Bengston called the sheriff's department to complain about the smell of marijuana coming from the trailer next door to his.  Three deputies went to the trailer to do a knock & talk.  The front door of the trailer was behind a chain link fence (along with a locked gate that didn't look like it had seen use in a while), and because of the way the property was situated it looked like visitors would normally go to the back door.  So the deputies went to the back door and knocked.  On the way to the back door, they saw a PVC pipe sticking out of the trailer (one of the deputies got down on his hands and knees to smell it, and could smell marijuana).  There was no answer at the back door, and the windows were all covered (some of them boarded up).  The trailer did not look like anyone lived there.  Back at the office, the deputies called the water company and learned that the apparently abandoned residence was going through 1000-2000 gallons of water per month.  Shuck was the guy who was responsible for the water bill.

   The deputies applied for a search warrant for the trailer, which was granted.  Inside, they found a marijuana grow.  They contacted the jurisdiction where Shuck lived (after getting his address from driver's license records), and those cops got a search warrant for Shuck's house which revealed more evidence.

   Shuck and some other guy were indicted for various crimes related to the marijuana grow.  Shuck moved to suppress the evidence obtained at both the trailer and his own residence, then conditionally pled guilty after his motion was denied.  Then he appealed, and the case made its way to the Tenth Circuit.

   Shuck's argument to suppress evidence at his house was that the second warrant was the fruit of an unlawful search of the trailer, so everything revolves around what happened with the marijuana grow.  His argument to suppress that evidence was that the police violated his Fourth Amendment right by going to the back door, and by smelling the PVC pipe.  He referred to Jardines, arguing that the officers here did something similar.

   The court describes curtilage as "the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life."  This area is considered part of the home for Fourth Amendment purposes, except that "The portion of the curtilage that is the normal route of access for anyone visiting the premises is only a semi-private area on which police may set foot if they restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches)."  Given that in the case of Shuck's trailer, the back yard was the obvious way for visitors to approach, the officers were entitled to walk to his back door.  And Shuck had no legitimate expectation of privacy in the marijuana smell that he was releasing into the public.  The courts have held that people's legitimate expectation of privacy protects them from searches that could reveal lawful activity. 

   The decision also mentions "plain smell" as an extension of the plain view doctrine, and describes that a "human sniff" is not a search.  The deputies did not violate Shuck's Fourth Amendment rights, and the lower court's denial of his motion to suppress was affirmed.