FINDINGS OF FACT, CONCLUSIONS OF LAW, & ORDER
Before the Court is Defendant's Motion to Suppress Evidence and Motion to Suppress Non-Miranda Statement. The Motions to Suppress are opposed by the government. A suppression hearing was held on the motions on October 10, 2012. The government was represented by AUSA Paulette Stewart. Defendant Chilinski was represented by his defense counsel, Michael Donahoe. The Court, having received the testimony and arguments, and having reviewed all the record, is prepared to rule.
Defendant Mike Chilinski owns several acres of real property outside of Jefferson City, Montana. Defendant's residence is located on this rural property, reached by a one-mile road (Malamute Way) in a wooded area. There is a fence at least partially or fully surrounding the residence, with a gate across the road.
Defendant considers himself to be one of the world's top breeders of Alaskan Malamute dogs. Until mid-October, 2011, Defendant owned and operated a kennel containing between 100 and 200 Malamute dogs. The kennel was located between the fence perimeter and the residence (but perhaps to some degree actually within the residence). To either side of the residence, apparently haphazardly situated, were a plethora of make-shift pens composed mostly of chain-link fencing and panels but also including some outbuildings and garages. All of these pens and structures comprised the Defendant's kennel facility.
On October 12, 2012, the Jefferson County Sheriff's Office ("JCSO") executed a search warrant on Defendant's property, seeking evidence relating to a charge of animal cruelty. At the same time, the JCSO executed an arrest warrant against Defendant Chilinski on the animal cruelty charge. During the execution of the animal cruelty search warrant, dozens of marijuana plants were found on the property. JCSO therefore contacted the Southwest Montana Drug Task Force ("SWMDTF"), which in turn prepared an application for a search warrant to search for and seize the marijuana plants, which was granted and executed on the same day, October 12, 2012. During that next day, October 13, additional marijuana plants were discovered growing on the property by Sheriff Doolittle, and so the SWMDTF obtained a second search warrant for the property, which was granted and executed on the following day, October 14, 2012. A total of over three hundred plants were found on the property. Defendant now seeks to suppress all of the marijuana plants on the argument that they are the fruit of multiple illegal searches. Defendant also seeks to suppress his non-Mirandized statement given shortly after his arrest. The government concedes that suppression of Defendant's non-Mirandized statement is appropriate.
1. Motion to Suppress the Marijuana Plants.
Defendant argues that the marijuana plants seized during the October 12-14, 2011, searches should be suppressed because (1) JCSO Deputy Chad McFadden's application for the animal cruelty search warrant failed to show probable cause, and therefore the JCSO was illegally on the property when it discovered the marijuana plants, (2) Dep. McFadden's application contained allegations based on illegal unwarranted searches conducted on June 10-11, 2011, and (3) Dep. McFadden's application contained falsehoods and omitted material information negating probable cause. Defendant Chilinski concludes that all the information contained in the SWMDTF's application for search and seizure of the marijuana plants was tainted by the illegal animal cruelty searches in June, August, and October, 2011.
The Court will take Defendant's allegations in chronological order. First, Defendant argues that JCSO Deputy Dean Hildebrand visited the property on June 10 and on June 11, 2011, and on the latter day conducted an illegal warrantless search which was coercive and lacking in probable cause.
June 10, 2011, Viewing of Property. On June 10, 2011, Dep. Hildebrand visited the Chilinski property by driving up Malamute Way to the closed gate. Dep. Hildebrand explains on the 6 minute video he recorded that he is responding to complaints made to the JCSO of malnutrition and neglect at the kennel. (Doc. 31 (Exhibit 4, CD-Rom filed conventionally).) At the closed gate, Dep. Hildebrand exits his vehicle and walks the fence line a short distance, less than 50 feet, by walking next to the road along the fence line. The pens are only a few feet away from the road. Dep. Hildebrand's video focuses on the dog pens immediately on the other side of the chain link fence.
Defendant Chilinski asserts that Dep. Hildebrand's June 10, 2011, visit to his property constituted a warrantless search of the property "within the curtilage." (Doc. 23 at 2.) Curtilage is "the land immediately surrounding and associated with the home." Oliver v. United States, 466 U.S. 170, 180, 174 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The curtilage is considered to be part of the home for Fourth Amendment purposes. Romero-Bustamente, 337 U.S. at 1107. However, a warrantless observation into the curtilage from outside of the curtilage is reasonable under the Fourth Amendment. See California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809 (1986) (aerial observation by law enforcement into curtilage reasonable under Fourth Amendment). Indeed, such law enforcement observations made into the curtilage may properly provide the basis for probable cause to support a warrant to search the curtilage. Id. at 213-14.
In this case, the area between the fence and the Chilinski residence is a road that loops in a circle. As the video footage shows, Defendant parks his vehicle(s) on the looping road in front of his house, and presumably his customers park their vehicles on the loop as well. Surrounding the perimeter, on the fence line, are numerous dog pens. Quite clearly, on June 10, 2011, Dep. Hildebrand never entered the curtilage surrounding Defendant's residence. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (establishing four factors: (1) proximity of area to home, (2) whether area is enclosed, (3) nature and uses of the area, (4) steps taken by resident to protect the area from observation by people passing by). The dog pens were within the enclosed chain-link fence perimeter, and Dep. Hildebrand was on the other side of the fence. Defendant took no steps to protect the dog pens from observation through the chain-link fence. Having made no attempt to shield the dog pens from observation, Dep. Hildebrand's observation of the dog pens from outside Chilinski's chain-link fence was reasonable for Fourth Amendment purposes, and his observations could properly be utilized to show probable cause for a search warrant.
June 11, 2011, Consent Search. Dep. Hildebrand again visited the property the next day, on June 11, 2011. Again, his visit to the property was recorded by video and audio recording. (Doc. 31 (Exhibit 4, CD-Rom filed conventionally).) This time, the gate was unlocked, and Defendant Chilinski was standing on the looped road in front of his house. Dep. Hildebrand walked down the road to talk to Chilinski. Although the conversation is occasionally inaudible due to barking dogs, for the most part the entire interaction between the two individuals is audible. In addition, the interaction is recorded in its entirety, and because the body language and actions of the Defendant are clearly observable, it is thus possible to draw factual and legal conclusions from the audio-visual recording.
The Court has carefully scrutinized the recording of Dep. Hildebrand's June 11, 2011, visit to the Chilinski kennel. It is a thirty-three minute recording that begins with the law enforcement vehicle on the road approaching the gate in front of Defendant's residence. The grass on either side of the road contains weeds and tall grasses, and felled trees are scattered randomly alongside the downhill side of the road. The gate is wide open and the Dep. Hildebrand's vehicle passes through the gate easily. The dirt road between the gate and the residence loops around in a circle. The distance between the gate and the residence is approximately 50 to 100 feet. Outside the gate and fence there are large items of old equipment or materials piled around haphazardly. Inside the gate there are piles of rubble, piles of wood, a ceramic sink, old pieces of metal, appliances, equipment, gas cans, and buckets. The area between the gate and the residence looks like a junk yard. Chilinski is standing directly in front of his front door, blow-drying the fur of a small dog sitting on a table.
The interaction between Dep. Hildebrand and Chilinski begins in a cordial manner, with smiles and laughter, but Chilinski immediately asks if there is a problem, and Dep. Hildebrand tells him that they have received about four more complaints about the dogs. Dep. Hildebrand asks, "Would you mind showing me around again?" Chilinski replies, "Uh, no, uh-uh [no]." Chilinski adds, "I'm not doing too well 'cause I have a foot, that, you see, I'm not doin' too well with. You see, my foot is black-and-blue [taking his sock off and showing his foot]." Dep. Hildebrand comments, "Oh, that ain't good." Chilinski explains, "I'll be kinda slow," and Hildebrand replies, "That's fine." Chilinski points out that "You know, last time they were here, they had a vet doctor all the dogs..." Hildebrand interrupts by saying, "Right, and that was quite a while ago, and I was here for that." After some conversation in which Chilinski explains that the complaints to JCSO are coming from PETA, Dep. Hildebrand says, "Well, why don't ya, if you would, show me around again, and ...