In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3612

United States of America,

Plaintiff-Appellee,

v.

Aaron L. French,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. CR 00-20032-01--Michael P. McCuskey, Judge.

Argued February 19, 2002--Decided May 28, 2002


  Before Coffey, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Coffey, Circuit Judge. Probation Officer
Steve Kelly came to Aaron French’s
property in Humboldt, Illinois, in search
of Richard Hensley, a delinquent
probationer. While searching for Hensley,
Kelly observed evidence of a
methamphetamine lab upon Aaron French’s
property. Kelly notified Illinois law
enforcement officers who obtained a
search warrant and discovered a
methamphetamine lab as well as
unregistered weapons in a shed on the
property. French was charged by a grand
jury sitting in the Central District of
Illinois in a six-count indictment with
various drug- and gun-related offenses.
French filed a motion to suppress and
argued that the evidence seized from the
shed be suppressed because the law
enforcement officers obtained the search
warrant based upon information that Kelly
had obtained in violation of French’s
Fourth Amendment rights. According to
French’s argument, Probation Officer
Kelly made his observations of the
methamphetamine lab from within the
curtilage of French’s residence, thereby
conducting an illegal search. The trial
court denied French’s motion to suppress,
ruling that Kelly was not within the
curtilage of French’s home when he
observed the methamphetamine lab. French
later pleaded guilty, but reserved his
right to appeal the trial court’s adverse
determination of his motion to suppress.
French appeals that determination. We
affirm.

I.   Factual Background

  On November 22, 1999, Probation Officer
Steve Kelly went to Aaron French’s
property in Humboldt, Illinois, in an
attempt to locate Hensley, his
probationer. Kelly had previously been
assigned to Hensley’s case as his
probation officer, but for three months
Hensley had failed to report to Kelly as
the conditions of his probation required,
and Kelly’s attempts to locate Hensley up
to that point had been unsuccessful. But
on that day, Hensley’s mother and sister
informed Kelly that Hensley often worked
at defendant-appellant French’s residence
as a vehicle mechanic. After learning
that Hensley might be working on French’s
property, Kelly drove to French’s
Humboldt property, accompanied by two
additional probation officers, Vicki
Starwalt (Kelly’s supervisor) and Jana
Pamperin, in search of Hensley.

  When he arrived at French’s residence,
Kelly pulled onto an open gravel
driveway. There were neither gates, nor
fences, nor barricades obstructing or
otherwise preventing the public from
entering upon the driveway from the
public road, nor were there any "no
trespassing" signs posted on or around
the drive. The structures on the
defendant-appellant French’s property,
which were in plain view, consisted of a
mobile home or trailer, which French used
as a residence, a shed connected to a
"lean-to," a three-sided structure that
was partially covered by a shredded tarp
on the one open side (serving as a
curtain to hide the interior from view),
and a second shed. The shed and lean-to
were located at the south end of the
drive, opposite the trailer, and faced
west. The trailer faced the shed and
lean-to structure and a gravel walkway
approximately 20 feet in length connected
the two structures. A second gravel
walkway connected the trailer and the
second shed, located in the southwest
corner of the property. A brick and
gravel walkway led from the drive to the
front door of the trailer.

  Kelly parked in the gravel drive, thirty
to forty feet from the shed. His
accompanying officers, Starwalt and
Pamperin, remained in the car while Kelly
exited the vehicle in order that he might
locate and speak with Hensley. Upon
exiting his vehicle, Kelly observed a
person working on a vehicle at the south
end of the drive approximately five (5)
feet from the shed and lean-to, but Kelly
was unable to see him clearly as the hood
of another vehicle obstructed his view.
Having been informed that Hensley might
be working as a mechanic at the French
property, Kelly decided to approach this
person (rather than proceed directly to
the front door of the trailer) to
determine whether the person was the
probationer, Hensley. As Kelly approached
the unidentified person working on the
vehicle, he also observed another
individual whom he recognized as
probationer Kevin Morlan run from the
lean-to into the adjoining shed, which
was unlocked at the time. Kelly had
encountered Morlan but two weeks earlier
at another location during a search of a
methamphetamine lab where a .45 caliber
automatic pistol was confiscated. Kelly
immediately became suspicious of Morlan’s
behavior and decided that in order to
ensure his safety he would order Morlan
to exit the shed before he attempted to
question the individual working at the
parked vehicle. Using the gravel walkway
that connected the trailer and the shed,
Kelly approached the open entrance of the
shed where Morlan had entered. As Kelly
approached, he noticed through the open
door that Morlan had placed his hands
inside his pants pockets and thus ordered
Morlan to remove his hands from his
pockets and to exit the shed. Morlan
complied in part, exiting the shed, but
continued to conceal his hands in his
pockets. Kelly noticed a rifle located on
a bench inside the shed from his vantage
point on the walkway. Kelly escorted
Morlan to his car and upon searching him
found two shotgun shells and a .44 magnum
shell on Morlan’s person. Morlan remained
uncooperative and refused to answer any
questions regarding the whereabouts of
Hensley. Because of the potentially
dangerous situation, Kelly asked his
supervisory officer, Starwalt, to call
for assistance.

  After patting down and restraining
Morlan, Kelly observed another individual
slumped over inside a second vehicle
parked on French’s driveway. As Kelly
approached the car, he noticed that this
person (later identified as Eric Collins)
also had his hands in his pockets. When
Collins removed his hands, Kelly heard a
"pop," which he soon learned was the
sound of a light bulb breaking in
Collins’s pocket. Collins admitted that
he had used the lightbulb to smoke
methamphetamine and, upon Kelly’s
request, consented to a search of his
vehicle.

  Shortly after Collins admitted to having
been smoking methamphetamine, two police
officers and a state trooper arrived and
Kelly briefed them on the situation.
Having secured both Morlan and Collins,
Kelly returned to question the individual
who had continued to work on the vehicle
parked near the shed. Kelly approached
the unidentified person repairing the
vehicle, and the individual identified
himself as Nicholas Jordan. Kelly asked
Jordan whether he had seen Richard
Hensley, and Jordan denied having seen
him. As Kelly questioned Jordan, he
detected a strong odor of ether emanating
from the shed, approximately five feet
away. When Kelly turned toward the shed,
the door of which was still open after
his earlier encounter with Morlan, he was
able to view the inside of the shed and
observed fuel cans, glassware, and
tubing, all used in the manufacture of
methamphetamine. Kelly never entered the
shed, nor the lean-to.
  Kelly reported his observation to the
law enforcement officers who were still
present in response to Starwalt’s
previous call for assistance. Based on
Kelly’s observations, the officers
approached the trailer to further
investigate the possibility that the
property might shelter a methamphetamine
lab. French’s wife, Brandy French, gave
the officers consent to search the
trailer, but told them she did not have
access to the shed. The officers searched
the trailer and secured the area around
the shed and shortly thereafter obtained
a search warrant for the purpose of
searching the shed for evidence related
to a methamphetamine lab. During the
ensuing search, the law enforcement
officers discovered and seized illegal
firearms as well as items used in the
manufacturing and processing of
methamphetamine. Kelly left the scene
shortly after the law enforcement
officers obtained the warrant, having
failed to locate probationer Hensley.

  Several months later on April 4, 2000,
Kelly returned to French’s property once
again looking for his parolee, Hensley
(who had served a jail sentence for his
November 1999 failure to report to Kelly
and upon release had remained A.W.O.L. in
failing to report as required). When
Kelly arrived at the property, he
observed two men walking from the trailer
to the shed. Kelly walked up the gravel
walkway to the shed and asked the person
inside to come out. Eventually, Ricky
Bell, who later became a co-defendant of
French, exited the shed. As Bell emerged,
Kelly became aware of a strong chemical
odor emanating from the shed and was able
to observe items used in the manufacture
of methamphetamine inside the shed.
Illinois drug agents were called to the
scene and obtained defendant French’s
verbal and written consent to search the
trailer, shed and lean-to. During the
search, agents once again found drug
paraphernalia used in the manufacture of
methamphetamine as well as illegal
firearms.

  On June 9, 2000, a grand jury sitting in
the Central District of Illinois charged
French in a six-count indictment with two
counts of the attempted manufacture of
methamphetamine in violation of 21 U.S.C.
sec. 841(a)(1) and sec. 846, possession
of a firearm in furtherance of a drug
trafficking offense, 18 U.S.C. sec.
924(c), two counts of possession of a
firearm with an obliterated serial
number, 18 U.S.C. sec. 922(k), as well as
possession of an unregistered short-
barreled shotgun, 26 U.S.C. sec. 5861(d).
A superseding indictment charged French
with the six counts recited above as well
as an additional count of conspiracy to
manufacture and distribute
methamphetamine, 21 U.S.C. sec. 846.

  On August 23, 2000, French moved to
suppress the evidence seized during the
November 22, 1999, and April 4, 2000,
searches, alleging that Probation Officer
Kelly invaded the curtilage of his home
for the purpose of determining the
existence of the methamphetamine lab and
thus violated the Fourth Amendment
prohibition against warrantless searches.
During a three-day hearing on French’s
motion to suppress held on various days
in September and October 2000, French
presented ten witnesses who testified in
support of his theory that Kelly’s
observations were made from within the
curtilage of French’s property and thus
violated the Fourth Amendment. On the
other hand, the government offered the
testimony of Probation Officers Kelly and
Starwalt who testified that Kelly neither
entered the shed nor the lean-to but
instead merely made observations from
outside the shed while he stood on the
gravel drive and walkway of the French
property. The trial court made extensive
findings of fact and credibility
determinations, and found that the
general public had access to both the
gravel drive and the walkway and that
there were no barriers, obstructions or
"no trespassing" signs to limit the
public’s access to the drive and walkway.
The trial judge further found that the
drive and walkway were not related to the
intimate activities of the French home.
The trial court also ruled that the drive
and walkway were located outside the
curtilage of the home. Because the trial
judge found that Kelly was on the
property for the legitimate purpose of
searching for his errant probationer
Hensley, restricting his movement on the
property to an area where the public
would be expected to enter and making his
observations based upon what was within
his plain view and smell, he concluded
that no unreasonable search had occurred
and denied French’s motion to suppress
the evidence collected during the
November 22, 1999, and April 4, 2000,
searches.

  After the trial court ruled against
French on his motion to suppress, French
entered into a written plea agreement
with the government and pleaded guilty to
one count of attempting to manufacture
methamphetamine, 21 U.S.C. sec.sec.
841(a) & 846, and one count of possession
a firearm in furtherance of a drug
trafficking offense, 18 U.S.C. sec.
924(c). In the plea agreement, French
reserved the right to appeal the trial
court’s denial of his motion to suppress
evidence.

II.   Issue

  On appeal, French argues that the gravel
walkway from which Kelly made his
observations was within the curtilage of
his residence and entitled to protection
from unreasonable searches and seizures
under the Fourth Amendment to the United
States Constitution./1

III.   Analysis

  We review a trial court’s findings of
fact in a suppression hearing for clear
error and its conclusions of law and
mixed questions of law and fact de novo.
United States v. Meyer, 157 F.3d 1067,
1079 (7th Cir. 1998). A factual finding
is clearly erroneous "when, although
there is evidence to support it, the
reviewing court on the entire evidence is
left with the definite and firm
conviction that a mistake has been made."
United States v. Gravens, 129 F.3d 974,
978 (7th Cir. 1997). Because the
resolution of a motion to suppress is
necessarily fact-specific, reviewing
courts give special deference to the
trial court that heard the testimony and
had the best opportunity to observe the
witnesses at the suppression hearing. Id.
"We do not second-guess the [trial]
judge’s credibility determinations
because he or she has had the best
opportunity to observe the verbal and
nonverbal behavior of the witnesses
focusing on the subject’s reactions and
responses to the interrogatories, their
facial expressions, attitudes, tone of
voice, eye contact, posture and body
movements, as well as confused or nervous
speech patterns in contrast with merely
looking at the cold pages of an appellate
record." United States v. Mancillas, 183
F.3d 682, 701 n.22 (1999).

  In addition, a defendant objecting to
the search of a particular area bears the
burden of proving a legitimate
expectation of privacy in the area
searched. United States v. Ruth, 65 F.3d
599, 604 (7th Cir. 1995) (citing United
States v. Duprey, 895 F.2d 303, 309 (7th
Cir. 1989)). A reasonable expectation of
privacy exists when "’(1) the complainant
exhibits an actual (subjective)
expectation of privacy and, (2) the
expectation is one that society is
prepared to recognize as reasonable.’"
Id. (quoting United States v. Myers, 46
F.3d 668, 669 (7th Cir. 1995).

  French argues that he had a reasonable
expectation of privacy in the gravel
walkway from which Kelly made his
observations of the methamphetamine lab
because it was within the curtilage of
his home. The Fourth Amendment protects
individuals from unreasonable searches
and seizures. This protection is not
limited to the four walls of one’s home,
but extends to the curtilage of the home
as well. See Siebert v. Severino, 256
F.3d 648, 653-54 (7th Cir. 2001). The
home’s curtilage encompasses "the area
outside the home itself but so close to
and intimately connected with the home
and the activities that normally go on
there that it can reasonably be
considered part of the home." Id. At
common law, the curtilage is the area
that encompasses the intimate activities
associated with the sanctity of the home
and the privacies of life. United States
v. Hedrick, 922 F.2d 396, 398 (7th Cir.
1991).

  A curtilage line is not necessarily the
property line, nor can it be located
merely by measuring the distance separat
ing the home and the area searched.
United States v. Redmon, 138 F.3d 1109,
1112 (7th Cir. 1998) (en banc). Instead,
a home’s "curtilage" is the area outside
the home itself but so close to and
intimately connected with the home and
the activities that normally go on there
that it can reasonably be considered part
of the home. United States v. Pace, 898
F.2d 1218, 1228 (7th Cir. 1990). For
example, a barn located sixty feet from a
home, which is kept locked and inaccessi
ble to the general public, may be within
a home’s curtilage, see Severino, 256
F.3d at 654, but garbage placed in a gar
bage can that abuts the home is not, see
United States v. Shanks, 97 F.3d 977, 979
(7th Cir. 1996). Thus whether an area is
within a house’s curtilage depends not
only on proximity to the house but also
on the use of the area and efforts to
shield it from public view and access as
well as the nature for which it is used.
United States v. Dunn, 480 U.S. 294, 302-
03 (1987).

  The Supreme Court announced a four-
factor inquiry to determine whether an
area is within the curtilage of a home:

[1] the proximity of the area claimed to
be curtilage to the home, [2] whether the
area is included within an enclosure
surrounding the home, [3] the nature of
the uses to which the area is put, and
[4] the steps taken by the resident to
protect the area from observation by
people passing by.

Id. at 334-35.

  In applying the factors announced in
Dunn, the trial court found that the
walkway was not within an enclosed area
surrounding the trailer and that French
had failed to take any steps to protect
the area from observation by passersby,
much less preventing the general public
from making use of the area to engage in
the hobby of automotive repair. The trial
court further found that the walkway was
not so intimately related to the
activities of the home itself that it
would be recognized as placed under the
umbrella of Fourth Amendment protection.
Accordingly, the trial court ruled that
the gravel walkway fell outside the
home’s curtilage and that Probation
Officer Kelly’s observations were not
made in violation of the Fourth
Amendment. We agree.

  French advances several unconvincing
theories in his argument that the gravel
walkway, from which Probation Officer
Kelly made his observations of the shed
and lean-to structures, was within the
curtilage of French’s home. Initially,
French argues that because the walkway
was within twenty feet of the home it
therefore was of sufficient proximity to
the home to be within its curtilage.
French next quibbles with the trial
court’s findings that he failed to take
steps to protect the area from
observation by the public and argues that
the public did not have access to drive.
Finally, French argues that the walkway
was used for a purpose consistent with
home-life, and therefore should be
considered to be within the curtilage of
the home.

  French’s argument that the walkway’s
proximity to the home gives rise to an
expectation of privacy is unconvincing.
The shed and lean-to were located
approximately twenty feet from the
residence and the walkway connected the
two structures. While it is true that we
have found that privacy expectations are
most heightened when the area in question
is nearer (within 20 feet) to the home,
the proximity to the home, standing by
itself, does not per se, suffice to
establish an area as within the
curtilage. Oliver v. United States, 466
U.S. 170, 182 n.12; Hedrick, 922 F.2d at
399. A curtilage line "cannot be located
merely by taking measurements from some
other case or precedent and then by use
of a tape measure trying to determine
where the curtilage is in a different
case." Redmon, 138 F.3d at 1112 (en
banc). Accordingly, while the proximity
of the walkway to the house may be a
factor to be considered in deciding
whether it is within the home’s
curtilage, it is but one of several
factors to be applied. Dunn, 480 U.S. at
334-35.

  French next advances two arguments in
support of his position that the trial
court erred in concluding that he failed
to take steps to prevent the public from
observing the walkway, shed and lean-to.
First, French argues that the walkway was
part of his "backyard," and thus entitled
to the presumption that it was within the
curtilage. But French’s self-serving
definition of a "backyard" is not
convincing. Contrary to French’s
assertion, the gravel walkway had none of
the characteristics of a backyard. The
walkway was neither enclosed nor shielded
from the public in any way. The probation
officers testified (and the trial court
found their testimony to be credible)
that here were no gates, barriers, or "no
trespassing" signs that prevented people
from viewing and using the gravel
walkway./2 Further, from Kelly’s point
of view, several members of the public
had access to the walkway, and were using
it freely on the occasions when he was
present on the property. Indeed when
Kelly arrived there were no less than
three (3) persons on French’s property:
Nicholas Jordan worked on a vehicle,
Kevin Morlan made use of the shed and
lean-to, and Eric Collins sat in a parked
vehicle smoking methamphetamine.
Additionally, the trial court found that
the clutter of car parts and maintenance
equipment on and around the drive and
walkway was further evidence that the
public had access to and frequently used
the walkway. As such, it was apparent to
Kelly that the walkway was much more like
a sidewalk or gravel path that allowed
the public to access the front door as
well as the shed and lean-to without
tramping on the property owner’s grass,
than an essential component of a private
backyard.
  French also quarrels with the trial
court’s finding that the general public
had access to the walkway to work
onautomotive vehicles. We disagree. In
the past we have held that public drives,
sidewalks, or walkways (even those which
lead to a rear side door) are not within
the curtilage of the home when they are
not enclosed by a gate or fence. See,
e.g., United States v. Evans, 27 F.3d
1219 (7th Cir. 1994) (FBI agent who had
plain view of the interior of defendant’s
home from the defendant’s driveway had
not made his observation from within the
home’s curtilage); see also United States
v. Smith, 783 F.2d 648 (6th Cir. 1986)
(officer who drove 70 feet up a private
drive and observed marijuana plants two
feet away from defendant’s house did not
violate the home’s curtilage); United
States v. Ventli, 678 F.2d 63 (8th Cir.
1982) (officer who photographed tire
tracks on private driveway and around the
front porch of a rural home did not
invade the home’s curtilage). In Evans we
noted that "’it is not objectionable for
an officer to come upon that part of
[private] property which has been opened
to public common use. The route which any
visitor or delivery man would use is not
private in the Forth Amendment sense, and
thus if police take that route for the
purpose of making a general inquiry or
for some other legitimate reason, they
are free to keep their eyes open.’"
Evans, 27 F.3d at 1229 (quoting 1 W.
LaFave, Search and Seizure sec. 2.3(e),
at 407 (1987)) (internal quotations
omitted).

  In this case, French failed to produce
any evidence that his driveway and/or
gravel walkway were hidden from public
view, inaccessible, or otherwise used for
intimate activity. Nothing about the
walkway alerted Kelly that French had
closed the walkway to the public in order
to engage in private activities and that
curious neighbors, members of the public,
and government agents should keep out.
Indeed quite the opposite appeared to be
the case, as Kelly observed at least
three members of the public (Morlan, Jor
dan, and Collins) making use of French’s
driveway and walkway. Thus, we agree with
the trial court that the public did have
access to the gravel walkway and that
French failed to take any steps to
prevent the public from accessing it.
  This is not a case where an overzealous
law enforcement officer, without a
warrant, intending to search for illegal
activity ransacked every nook and cranny
of French’s yard. Nor is it a case where
a government agent snooped into areas
that he reasonably believed to be private
in hopes of uncovering evidence of a
crime. Instead, it is clear from the
facts in the record that Kelly came to
French’s property not to conduct a
search, but for the express purpose of
locating an errant probationer who had
failed to report as ordered on numerous
occasions. "Probation officers are the
intermediary between the judicial system
and those who are released into society,
but remain under its supervision. Among
other things, the probation officer
directly supervises the probationers
[and] keeps the courts informed of
developments in each case . . . ."
Jefferson v. Ambroz, 90 F.3d 1291, 1297
(7th Cir. 1996). Kelly had a good-faith
belief that his probationer was on the
French property and working on an
automotive vehicle on the property, and
he entered the premises in hopes of
finding him in order that he might carry
out his supervisory duties.

  As noted above, it is not objectionable
for an officer to come upon that part of
private property opened for public common
use and the officer may use the "route
which any visitor to a residence would
use . . . for the purpose of making a
general inquiry or for some other
legitimate reason." Evans, 27 F.3d at
1229. It is common sense that, upon
entering French’s drive and seeing a
person working on a vehicle at the end of
the drive near the gravel walkway, that
Kelly would approach this person rather
than approach the front door to the
trailer. Probation Officer Kelly entered
the French property through the public
drive for the legitimate purpose of
making a general inquiry of those people
who were in plain view and he was free to
keep his eyes open during his inquiry. At
all times, Kelly confined his actions to
those areas on French’s property where it
was reasonable and necessary to carry out
his objective of locating Hensley, the
probationer who had been successful in
eluding him.

  Finally, French also argues that the
trial court committed error in holding
that French failed to use the gravel
walkway for a purpose connected to the
intimate activities of his home. French
contends that because the walkway was
used in furtherance of his hobby of
automotive repair, it was connected to
the "intimate activities of the home" and
thus within the curtilage of the home. In
support, French suggests that the tools
for this hobby were stored in his yard
and in the shed and lean-to and that the
gravel walkway furthered or somehow
advanced his hobby of automotive repair.
But the only purpose of the walkway was
to connect the trailer to the shed, lean-
to and gravel drive. French has failed to
point to a scintilla of evidence to
demonstrate that the walkway, in any way,
harbored "the intimate activity
associated with the sanctity of a man’s
home and the privacies of life." Dunn,
480 U.S. at 334.

  We agree with the trial court that the
walkway from which Kelly made his
observations was not within the curtilage
of French’s home and that French had no
legitimate expectation of privacy in the
walkway. French failed to take any steps
to prevent the public from accessing the
walkway area. It was reasonable for Kelly
to assume, based upon the number of
persons freely using the walkway and
gravel drive as well as the clutter
around it, that French had no reasonable
expectation of privacy in the driveway
and gravel walkways. French’s conviction
and sentence are AFFIRMED.

FOOTNOTES

/1 French also argues that the exclusionary rule
should apply where law enforcement officers
obtain a search warrant by relying on information
provided by probation officers. Based upon the
record before us as well as the trial court’s
ruling on French’s motion to suppress, we hold
that Probation Officer Kelly was not within the
curtilage of the French home (and therefore
committed no Fourth Amendment violation) when he
made his observations. Thus we need not address
this issue in the opinion.

/2 French argues that a partition, approximately
four feet high and five feet in length obscured
any view of the interior of the shed and lean-to
from the gravel drive. The trial court, however,
found credible Probation Officers Kelly and
Starwalt’s testimony that no such partition
existed at the time of the relevant searches.
French makes no attempt to show that the trial
court’s factual finding on this matter was clear-
ly erroneous. Further, even had the trial court
found that such a partition existed, it would
have been relevant only to whether the shed and
lean-to were within the curtilage of the home and
not to whether the gravel walkway, from which
Officer Kelly made his observations, was within
the curtilage of the home. As we observed previ-
ously, the trial court’s credibility determina-
tions are given special deference for the trial
judge heard the testimony and observed the wit-
nesses at the suppression hearing. Gravens, 129
F.3d at 978.
