Defendant-appellant appeals from a January 10, 2007 judgment of conviction and sentence entered in the United States District Court for the District of Vermont (Sessions III, C.J.), following a guilty plea to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), the District Court having (1) denied defendant's motion to suppress evidence and dismiss the indictment; and (2) sentenced defendant to time served, a term of home confinement of 6 months, and a term of supervised release of 3 years.
The opinion of the court was delivered by: Miner, Circuit Judge
Before: MINER, McLAUGHLIN, and POOLER, Circuit Judges.
Defendant-appellant Derrick Hayes ("Hayes") appeals from a January 10, 2007 judgment of conviction and sentence entered in the United States District Court for the District of Vermont (Sessions III, C.J.), following a guilty plea to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The court imposed a sentence of time served, a term of home confinement of 6 months, and a term of supervised release of 3 years.
Prior to Hayes's guilty plea, the District Court had denied, in a May 5, 2006 Amended Opinion and Order, Hayes's motion to suppress evidence seized by police officers in and near his residence and to dismiss the indictment. The District Court's ruling resulted from its conclusions, inter alia, that (1) the police canine's initial sniff and alert to the possible presence of narcotics was not an unreasonable search because Hayes did not possess a reasonable privacy interest in the air in front of his residence containing the scent of narcotics; (2) Hayes did not have a reasonable expectation of privacy in a vegetated area approximately 65 feet from the rear of his residence, where a black bag containing narcotics was detected and seized by the police canine; and (3) the police officer's inspection and opening of the black bag containing narcotics was not a search and seizure implicating the protections of the Fourth Amendment because Hayes lacked a reasonable expectation of privacy in the bag's contents.
On appeal, Hayes challenges these conclusions. Hayes's principal claim is that the area of scrub brush where the black bag containing cocaine was discovered by the police canine was within the "curtilage" of his home, and the canine's search of that area constituted an unlawful search for purposes of the Fourth Amendment. For the reasons that follow, we agree with the District Court's denial of Hayes's motion to suppress and therefore will not disturb the judgment of conviction and sentence.
At a suppression hearing held on February 16, 2006, the District Court heard testimony and received into evidence police reports and other documents submitted by the parties. The following factual narrative is based upon factual findings made by the District Court after the hearing was concluded.
Shortly before 7:00 a.m. on September 3, 2002, Colchester, Vermont police and rescue personnel responded to a 911 call of a possible cocaine overdose at Hayes's residence located at 115 Marble Island Road in Colchester, Vermont. Police and rescue personnel arrived upon the scene and ultimately transported Hayes to the hospital by ambulance. After the ambulance left, police officers spoke with Hayes's girlfriend, Lynn Hepner, who occupied the residence, "on a somewhat regular basis," with Hayes. She gave the police officers consent to search the residence. During the course of the search, the officers discovered a duffel bag containing marijuana residue, a glass jar with some white residue believed to be cocaine, and a cigar box containing a sizable amount of cash, additional white residue, and a quantity of marijuana.
The officers decided to "be safe at that point," suspended their search of the residence, and applied for a search warrant. The officers sought a warrant because they "found much more than [they] were anticipating" and believed that the contraband found was possible evidence of a drug distribution operation. For the next couple of hours, Officer Michael Akerlind stood by alone at the Hayes residence and waited for the other officers to secure a search warrant.
At approximately 10:17 a.m., Officer David Dewey, who had participated in the consensual search, returned to the residence. He was accompanied by his canine, "Kilo." Officer Dewey was trained as a narcotics dog handler, and Kilo was trained as a narcotics canine. As Officer Dewey awaited the warrant, he decided to let Kilo out of the car because the dog had been confined in the police cruiser for four to five hours at that point.Once outside the car, which was parked in front of the house, Officer Dewey began to play with Kilo, using a frisbee. He threw the frisbee into Hayes's front yard in a trajectory "parallel to Marble Island Road." Kilo chased after the frisbee for a short distance, stopped and pointed its nose in the air as if it were alerted to something. At that point, Officer Dewey asked Kilo: "Whatta ya got?" According to Dewey, this was a verbal signal to encourage the dog to continue investigating.
As a result of the verbal command, Kilo "started sniffing around the outside perimeter of the house."*fn1 Officer Dewey testified that Kilo went around the right side of the house and continued around to the rear of the residence and towards the back of the detached garage. The detached garage was behind and to the left of the main residence. Kilo headed straight across the rear of the garage and towards the "brush line or hedgerow" located on the left side of the Hayes property. Dewey also stated at the hearing that Kilo "didn't really sniff around the garage at all" and that the scrub brush, which Kilo "dove into" and found the black bag in, was located approximately 65 feet from the back door of the residence. Officer Dewey also testified that the scrub brush was about 10 to 15 feet thick.
When Officer Dewey called for Kilo to return, Kilo returned with a black, nylon purse-type bag (the "black bag") in its mouth. Officer Dewey instructed Kilo to "leave it," and Kilo spit the bag out of its mouth at Officer Dewey's feet. Officer Dewey then opened the black bag and discovered a number of plastic baggies containing white powder that was later identified as approximately 14 ounces of cocaine. A short time later, just before 11:00 a.m., other Colchester officers arrived with a search warrant ...