                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11976                ELEVENTH CIRCUIT
                                   Non-Argument Calendar             JANUARY 21, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 3:07-cv-00320-VMC-MCR

DAVID O'BERRY HEARN,

lllllllllllllllllllll                                              Petitioner Appellant,

                                           versus

STATE OF FLORIDA,
FLORIDA ATTORNEY GENERAL,

lllllllllllllllllllll                                           Respondents Appellees.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                                ________________________

                                      (January 21, 2011)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         This appeal is the second time we have reviewed the denial of David
Hearn’s petition for a writ of habeas corpus. 28 U.S.C. § 2254. Hearn alleged in

his petition that the state court erred by denying his motion to suppress because

there were false statements in the affidavit that provided probable cause for the

warrant to search his property. The district court ruled that the issue was barred

from review, under Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052

(1976), but we reversed and remanded because the state court had failed to make

“explicit findings on matters essential to” Hearn’s argument under the Fourth

Amendment, Hearn v. Fla., No. 08-14651, slip op. at 8–9 (11th Cir. May 6, 2009).

On remand, the district court denied Hearn’s petition. The district court ruled that

the officers had entered Hearn’s property in exigent circumstances and lawfully

had observed evidence that Hearn had been manufacturing methamphetamine,

which provided probable cause to obtain a warrant to search Hearn’s property.

The district court also ruled that allegedly false statements in an affidavit that had

supported the warrant were immaterial to a finding of probable cause and were not

made deliberately or recklessly. We affirm.

      A federal court may not grant a state prisoner a writ of habeas corpus when

a claim has been adjudicated on the merits by a state court unless the decision is

“contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States,” or

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“resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d); Suggs v. McNeil, 609 F.3d 1218, 1227 (11th Cir. 2010). A decision is

“contrary to” clearly established federal law if either the state court reached a

conclusion opposite to that reached by the Supreme Court on a question of law or

the state court was presented with facts that are “materially indistinguishable”

from relevant Supreme Court precedent, but arrived at a contrary result. Suggs,

609 F.3d at 1227. A state court makes an “unreasonable application” of clearly

established federal law if the court “‘identifies the correct legal rule from Supreme

Court case law but unreasonably applies that rule to the facts of the petitioner’s

case.’” Id. (quoting Rutherford v. Crosby, 385 F.3d 1300, 1306 (11th Cir. 2004)).

      The state court reasonably could have concluded that any misstatements in

the affidavit about the reason that officers visited Hearn’s property did not

invalidate the warrant to search Hearn’s property. Hearn was required to establish

by a preponderance of the evidence that the affiant made false statements of fact

either deliberately or recklessly. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct.

2674 (1978). The affidavit stated that a suspect in an armed robbery, Wayne

Land, received a telephone call from Hearn while Land was being interviewed

inside the home of Mark Wade, and that officers had learned the telephone call

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came from Hearn’s residence. Although Hearn argued that the statements were

irreconcilable with copies of records that no calls were made from his house to

Wade’s house during or within a few hours of the time that the officers questioned

Land inside Wade’s house, the statements in the affidavit can be reconciled with

the evidence presented by the government during the hearing on Hearn’s motion to

suppress. The affidavit was consistent with the testimonies of Wade and Darrell

Smith that Smith called Wade from Hearn’s house around 5:30 a.m. and the

testimony of Officer Jenny Mann that, later that day, she observed inside Wade’s

house a caller identification machine displaying the telephone number for Hearn’s

residence. Officer Mann testified that she could not recall whether she looked at

the machine after hearing Wade’s telephone or a different telephone. A previous

call from Hearn’s residence to Wade could have caused the caller identification

machine to display Hearn’s number. Moreover, the state court could reasonably

have concluded that the misstatement in the affidavit was not made deliberately or

recklessly.

      The state court also reasonably could have concluded that the affidavit

contained sufficient information to provide probable cause to issue the warrant to

search Hearn’s property. The affidavit stated that officers went to Hearn’s

residence to search for Wade and, while the officers surrounded the property as

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part of their search for Wade, they observed evidence that Hearn was

manufacturing methamphetamine. The affidavit, coupled with evidence presented

in the state court during the hearing on Hearn’s motion to suppress, established

that exigent circumstances allowed a warrantless entry onto Hearn’s property and

that the location where the officers observed evidence of Hearn’s

methamphetamine operation was outside the curtilage of Hearn’s home.

      The state court reasonably could have concluded that exigent circumstances

allowed the officers’ entry onto Hearn’s property without a warrant. Under the

exigent circumstances exception, a “warrantless entry by criminal law enforcement

officials may be legal when there is compelling need for official action and no

time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942,

1949 (1978); see Johnson v. United States, 333 U.S. 10, 14–15, 68 S. Ct. 367, 369

(1948) (exigent circumstances include a suspect “fleeing or likely to take flight”).

The victim of an armed kidnaping had identified Wade as a perpetrator, and

officers went to Wade’s house to investigate that crime. While at Wade’s house,

Land, who also was a suspect in the armed kidnaping, told the officers that Wade

“could be hiding out and was known to hang around Hearn.” The officers were in

hot pursuit of Wade and, based on the possibility that he was still armed and might

flee, were entitled to enter Hearn’s property without a warrant to search for Wade.

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      The state courts could reasonably have concluded that the officers, having

lawfully entered Hearn’s property, observed incriminating evidence through the

door of a shed left ajar. Under the open fields doctrine, officers may observe

property outside the curtilage of a person’s home. See United States v. Dunn, 480

U.S. 294, 300, 107 S. Ct. 1134, 1139 (1987). To determine if property is within

the curtilage of a home, courts must consider four factors: (1) the proximity of the

property to the home; (2) whether the property is “included within an enclosure

surrounding the home”; (3) the use of the property; and (4) what, if any, “steps

[have been] taken by the resident to protect the area from observation by people

passing by.” Id. at 301, 107 S. Ct. at 1139. Officer Johnny Nolan testified at the

hearing before the state court that he and Lieutenant Martinez walked to the back

of Hearn’s property to prevent Wade from trying to escape through the woods

behind Hearn’s house. Nolan stated that a shed was situated about 20 yards

behind Hearn’s house, behind a camper trailer, and about 10 yards behind the shed

was a wooded area. Nolan stated that there was no fence or other object that

obstructed the area between the woods and the shed; the shed appeared to house

only chemicals and containers for storing liquids; and the shed was subject to

observation by any member of the public passing through or near the woods.

Mark Wade testified that a hunting club was located beside Hearn’s property and

                                          6
members of the hunting club had unlimited access to the woods, which were

located about thirty yards from Hearn’s house. Officer Nolan testified that he

stopped between the shed and the woods and, from that position, he could see

through the opened door of the shed paraphernalia “customarily” used to

manufacture methamphetamine and smelled a strong odor of chemicals.

Lieutenant Martinez, who was positioned behind Nolan and closer to the wooded

area, observed in a small toolshed attached to the shed other paraphernalia used to

manufacture methamphetamine. The state court reasonably have could concluded

that the shed was outside the curtilage of Hearn’s home and the officers lawfully

observed the contents of the shed, which provided probable cause to obtain a

warrant to search Hearn’s property.

      The district court did not err when it denied Hearn’s petition. It was

reasonable for the state courts to conclude that the warrant provided probable

cause to issue a warrant to search Hearn’s property for evidence that he had

manufactured methamphetamine. The decision of the state court to deny Hearn’s

motion to suppress was not contrary to or an unreasonable application of clearly

established federal law.

      We AFFIRM the denial of Hearn’s petition.




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