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December 15, 1994

KEVIN C. REILLY, Defendant.

The opinion of the court was delivered by: HOWARD G. MUNSON

 In September 1992, defendant was convicted in a lower New York State court, pursuant to his guilty plea, of criminal possession of marijuana in the first degree and unlicensed growing of marijuana. Defendant's motion to vacate his judgment and for resentencing was granted on the ground that the District Attorney failed to advise defendant that the District Attorney had informed the United States Attorney of defendant's guilty plea, which lead to the United States initiation of federal forfeiture proceedings against defendant's property. On appeal of defendant's resentencing, the New York State Appellate Division, Third Department, held that under the New York State Constitution the search of defendant's property was illegal and suppressed all evidence obtained from the search warrant as the fruit of an illegal entry. People v. Reilly, 195 A.D.2d 95, 606 N.Y.S.2d 836, 837-38, 840 (3rd Dep't 1993).

 By a federal indictment filed June 30, 1994, defendant was charged with manufacture of marijuana and with criminal forfeiture of defendant's property used to grow the marijuana. Before the court is defendant's motion to suppress evidence seized pursuant to a search warrant. Defendant further seeks discovery and suppression of the government's evidence that defendant grew and supplied marijuana prior to September 6, 1991, the date on which he was initially arrested. In addition, defendant moves for severance of the charges against him. The court heard oral arguments on the instant motions on September 9, 1994 in Syracuse, New York. On October 20, 21 and 28, 1994 the court held a suppression hearing in the instant matter. Pursuant to Fed. R. Crim. P. 12(e), *fn1" the following constitutes the court's findings of fact and conclusions of law.


 The court begins with a description of defendant's property as it existed on the day of the allegedly unlawful search. The approximately 11 acres of land owned by defendant was formerly a farm field located on Woodard Road, in the Town of Enfield, New York. Along with the main residence and a cottage, *fn2" defendant built a second house on the property. *fn3" In about 1981, Ruldolfo Nunez, who owns the property bordering the east, west and north portions of defendant's land, hired defendant to build a multi-strand wire fence along this border to keep Mr. Nunez's dairy cows from straying onto defendant's property.

 Sometime between 1987 to 1989, defendant had a local farmer plant a lawn on the entire area of defendant's property between the main residence and the north boundary line as well as from the main residence to Woodard Road. A large tractor was used to till the soil and to plant seed. After the grass began to grow, the lawn was extensively rolled. At about the same time, defendant hired a local resident who mowed the lawn, tended gardens and placed mulch around most of the trees located on the property through September 1991. While the area between the main residence and the north boundary line was regularly mowed with both a push and riding mower, the front portion of the lawn, between the main residence and Woodard Road, was regularly mowed with a brush hog. In September 1991, the time of the allegedly unlawful search, the lawn had substantially grown throughout defendant's property, although it had been very dry as a result of drought conditions during the preceding summer months.

 On a regular basis, defendant landscaped the property with topsoil and mulch. Most of the trees located between the main residence and the north boundary were mulched prior to the search of the property in September 1991. Defendant planted numerous trees throughout the parcel of land, including about 140 trees along the west hedgerow. Defendant also had an excavating contractor build a pond near the northeast corner of the property, which defendant used for recreational fishing and swimming, including nude swimming. Near the pond, a wooden gazebo was built that contained a stone fireplace and chimney for outdoor cooking. In addition, the gazebo area had an electrical hookup to allow defendant to play music. Located adjacent to the pond was a grass "patio area" constructed with a stone wall. The patio area, which was frequently used by defendant and invited guests for games, such as badminton and croquet, had several "adirondack-style" lawn chairs placed throughout.

 Located near the pond and patio area was the cottage, which is about 375 feet from the main residence. Defendant moved into the cottage after he finished its construction in about 1984, and resided there until 1986. He then moved into the main residence and rented the cottage until 1990, after which it remained vacant through September 1991. During the time that defendant was not renting the cottage, in 1990 and 1991, he and his guests occasionally used the bathroom and kitchen facilities. On numerous occasions, defendant used the cottage for sexual liaisons. He also used it to grow marijuana.

 Tompkins County Sheriffs Deputy Scott Ferris and Investigator Daniel C. Drew first visited defendant's property in about September 1990. On that occasion, they approached defendant's parcel of land from the north and walked south along the western fence line until they reached Woodard Road. Upon approaching a point of the fence closest to the wooded area between defendant's main residence and the cottage, the officers noticed a "strong odor of marijuana." They did not enter the property, however, because a dog was present. The officers did not obtain a search warrant as a result of their September 1990 observations and did not revisit defendant's property until about one year later.

 At about 1:30 p.m. on September 6, 1991, Officers Drew and Ferris again drove to defendant's property and parked their patrol car along the road about 300 yards east of defendant's main residence. They walked in a north-westerly direction through an overgrown neighboring field toward the east boundary of defendant's property until they approached a fence. Upon reaching the eastern fence line, the officers followed the fence to the north-east corner of defendant's property. The officers then walked west through a densely wooded area along the north border of the parcel. At a point close to the north-west corner, they turned south and entered defendant's property at a site where the fence was knocked to the ground and covered by brush. While the officers did not observe a fence along the north boundary of the property, they did notice it along both the east and west property lines and believed that it may have been electrified. Although the fence was composed of only a single strand of wire where the officers first encountered it, much of the fence was constructed with three to six strands of wire along the perimeter.

 After entering defendant's property the officers walked south, passing the vegetable garden, pond and gazebo. Near the pond was a farm tractor, with its engine running, connected to a water pump. The officers proceeded past the patio area to the cottage. The cottage had windows on all sides, some of which were open and some which had drawn curtains. Several pieces of scaffolding were leaning against the cottage and a pile of manure, a flat-bed trailer and small cement mixer were nearby. Built into the side of the cottage was an air conditioner, that was operating at the time. The officers walked close to the air conditioner and detected a "very strong odor of marijuana" being discharged from the rear of the unit. After detecting the marijuana odor, the officers attempted to look inside the windows located nearest to the air conditioner, which were closed. Two of the windows were covered with a screen on the outside of the cottage. On the inside of each window was a drawn curtain through which they could not see. They walked to the north side of the building and looked through a picture window and into an empty room with dust and cobwebs on the floor and a fireplace. The building appeared "deserted". The officers also looked into several other windows and saw a bathroom and kitchen. The kitchen had cabinets, a refrigerator and a counter area.

 As to the air conditioner from which the officers allegedly detected the odor of marijuana, defendant purchased the unit in about 1988 and installed it in his main residence. Shortly thereafter, defendant removed the unit and stored it in a barn until the spring of 1991, when he installed it in the cottage. The type of unit used by defendant is designed to recirculate inside air at a rate of about 700 cubic feet per minute. Outside air is drawn into the air conditioner and circulated over condenser coils before being exhausted to the outside. Thus, theoretically, no air from inside the cottage is passed by the air conditioner to the outside. In reality, however, similar units were tested by the manufacturer, they leaked an average of 3 cubic feet per minute of inside air to the outside. Some units leak as much as 15 to 25 cubic feet per minute.

 After viewing the cottage, the officers continued south, crossing a gravel driveway leading to the cottage and through an area of mowed grass until they reached a wooded area about 125 feet from the cottage. The officers were wearing dark clothing and ran in a crouched position so as not to be seen. They located a clearing with about 20 growing marijuana plants. The officers left the wooded area and defendant's property by retracing the route used to enter the parcel. They subsequently obtained a search warrant based upon an affidavit containing the observations made during the September 6, 1991 search of defendant's property. Upon execution of the warrant, the officers found about 15 growing marijuana plants in the cottage and about 115 plants growing in the wooded area. One marijuana plant was found inside defendant's main residence, and some harvested marijuana was found in a kitchen cupboard, along with implements for weighing and bagging.


 A. Suppression

 i. Materially False Statements in Search Warrant

 Defendant first seeks suppression of the marijuana and related items seized pursuant to a search warrant because the application for the warrant allegedly contained materially false statements; namely, that the officers who searched defendant's property detected a strong odor of marijuana emanating from an air conditioner located in the cottage.

 While the air conditioning unit installed in the cottage was designed such that no air from inside the cottage is passed to the outside, the record shows a substantial likelihood that air actually passed from inside the cottage to the outside through the unit. After a review of all the evidence adduced at the hearing, the court concludes that the government has met its burden of proof in showing that the officers detected an odor of marijuana emitting from the air conditioner. Thus, in so far as it is based on a theory that the officers' warrant application was false or misleading, defendant's motion to suppress is denied.

 ii. Unlawful Entry

 Defendant next seeks to suppress evidence seized pursuant to the September 6, 1991 search warrant, on the ground that the warrant was the product of an ...

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