                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 01-4722
EUGENE GEORGE BREZA,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Northern District of West Virginia, at Clarksburg.
              Irene M. Keeley, Chief District Judge.
                            (CR-01-12)

                      Argued: September 25, 2002

                      Decided: October 28, 2002

    Before WILKINS, WILLIAMS, and KING, Circuit Judges.



Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Williams and Judge King joined.


                             COUNSEL

ARGUED: Wells Hemann Dillon, St. Marys, West Virginia, for
Appellant. ON BRIEF: Thomas E. Johnston, United States Attorney,
Stephen Donald Warner, Assistant United States Attorney, Clarks-
burg, West Virginia, for Appellee.
2                       UNITED STATES v. BREZA
                               OPINION

WILKINS, Circuit Judge:

   Eugene George Breza pleaded guilty to manufacturing 100 or more
marijuana plants, see 21 U.S.C.A. § 841(a)(1) (West 1999), reserving
the right to appeal the denial of his motion to suppress. He now
argues that his right to be free from unreasonable searches and sei-
zures was violated when law enforcement officers conducted aerial
surveillance of his property and subsequently entered, and seized mar-
ijuana plants from, a vegetable garden that Breza asserts was within
the curtilage of his home. For the reasons set forth below, we affirm.

                                    I.

   Breza owns a 92-acre farm in Gilmer County, West Virginia. Only
part of this land, surrounding the house, is landscaped. This area con-
sists of a lawn and a vegetable garden from which the marijuana was
seized. The house and the landscaped portion of the yard are sur-
rounded by a perimeter fence made of posts and wire. The lawn
extends approximately 50 feet from the back of the house to the vege-
table garden, which is separated from the lawn by a post-and-wire
fence with a gate; the perimeter fence doubles as the back fence of
the garden. In addition to the fence, an ornamental garden and several
trees separate the vegetable garden from the lawn.1 The portion of the
vegetable garden where the marijuana was growing was shielded by
artichoke plants and grapevines, so that the marijuana could not be
viewed from outside the garden by one standing on Breza’s lawn.

   While conducting a routine drug interdiction operation, law
enforcement officers flew over Breza’s property in a helicopter at a
height of approximately 500 feet. When one of the officers observed
what he believed to be marijuana growing in the garden, the helicop-
ter pilot descended to approximately 200 feet above the property.2
   1
     The record does not contain information regarding the size or dimen-
sions of the vegetable garden or the amount of produce it yielded.
   2
     Breza testified that the helicopter descended much lower, to less than
100 feet and perhaps as low as 35 feet. The district court credited the
Government’s version of events, however.
                        UNITED STATES v. BREZA                          3
After confirming the presence of marijuana, the helicopter ascended
to navigable airspace and radioed nearby officers stationed on the
ground, who immediately proceeded to Breza’s property. Officers
searched the garden and seized several hundred marijuana plants.

   After he was indicted, Breza moved to suppress the marijuana on
the basis that the aerial surveillance of his property and the warrant-
less entry of his vegetable garden violated his Fourth Amendment
rights. Following a hearing, the district court rejected both arguments
and denied the motion to suppress. Breza thereafter entered a condi-
tional guilty plea.

                                   II.

   The Fourth Amendment guarantees "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures" by governmental actors. U.S. Const.
amend. IV. The "touchstone" of Fourth Amendment analysis is
whether the individual has a reasonable expectation of privacy in the
area searched, Oliver v. United States, 466 U.S. 170, 177 (1984), i.e.,
"whether the government’s intrusion infringes upon the personal and
societal values protected by the Fourth Amendment," id. at 182-83.
Thus, "[a] ‘search’ occurs when an expectation of privacy that society
is prepared to consider reasonable is infringed." United States v.
Jacobsen, 466 U.S. 109, 113 (1984); see Illinois v. Andreas, 463 U.S.
765, 771 (1983) ("If the inspection by police does not intrude upon
a legitimate expectation of privacy, there is no ‘search’. . . .").
Whether certain conduct by law enforcement officers infringes upon
rights guaranteed by the Fourth Amendment is a question of law sub-
ject to de novo review. See United States v. Gomez, 276 F.3d 694, 697
(5th Cir. 2001); United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). Underlying factual findings, however, are reviewed for clear
error. See Rusher, 966 F.2d at 873. "A finding is clearly erroneous
when, although there is evidence to support it, on the entire evidence
the reviewing court is left with the definite and firm conviction that
a mistake has been committed." Faulconer v. Comm’r, 748 F.2d 890,
895 (4th Cir. 1984).

                                   A.

   Breza first maintains that the aerial surveillance of his property vio-
lated his Fourth Amendment rights because the surveillance consti-
4                       UNITED STATES v. BREZA
tuted a warrantless search of the curtilage of his home. See Oliver,
466 U.S. at 180 (defining curtilage as "the area to which extends the
intimate activity associated with the ‘sanctity of a man’s home and
the privacies of life’" (quoting Boyd v. United States, 116 U.S. 616,
630 (1886))). Because an individual ordinarily possesses the highest
expectation of privacy within the curtilage of his home, that area typi-
cally is "afforded the most stringent Fourth Amendment protection."
United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976). Never-
theless, "[w]hat a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protec-
tion." Katz v. United States, 389 U.S. 347, 351 (1967). "Thus, a law
enforcement officer’s observations from a public vantage point where
he has a right to be and from which the activities or objects he
observes are clearly visible do not constitute a search within the
meaning of the Fourth Amendment." United States v. Taylor, 90 F.3d
903, 908 (4th Cir. 1996) (internal quotation marks omitted).

   On two occasions, the Supreme Court has addressed the question
of whether aerial surveillance of property violates an expectation of
privacy that society is prepared to recognize as reasonable. See Flor-
ida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207
(1986). In Ciraolo, the Court concluded that aerial observation of the
defendant’s property from a height of 1,000 feet did not violate "an
expectation of privacy that is reasonable" because it "took place
within public navigable airspace in a physically nonintrusive man-
ner." Ciraolo, 476 U.S. at 213 (citation omitted); cf. Giancola v. W.
Va. Dep’t of Pub. Safety, 830 F.2d 547, 550-51 (4th Cir. 1987) (hold-
ing, under Ciraolo, that helicopter flyover of property at 100 feet did
not violate Fourth Amendment). In Riley, a plurality of the Court con-
cluded that the defendant’s Fourth Amendment rights were not vio-
lated when law enforcement officers observed marijuana while
hovering in a helicopter at an altitude of 400 feet. See Riley, 488 U.S.
at 451-52 (plurality opinion). In reaching this conclusion, the plurality
noted, inter alia, that the flight was conducted in compliance with
applicable laws and regulations. See id. at 451. Justice O’Connor con-
curred in the judgment, asserting that mere compliance with aviation
regulations should not determine whether a Fourth Amendment viola-
tion occurred. See id. at 453-54 (O’Connor, J., concurring in judg-
ment). Rather, Justice O’Connor maintained that the relevant inquiry
was "whether the helicopter was in the public airways at an altitude
                         UNITED STATES v. BREZA                           5
at which members of the public travel with sufficient regularity that
[the defendant’s] expectation of privacy from aerial observation was
not one that society is prepared to recognize as reasonable." Id. at 454
(internal quotation marks omitted). Because the defendant had pro-
duced no evidence that such flights were rare, Justice O’Connor con-
cluded that no Fourth Amendment violation had occurred. See id. at
455.

   Breza contends that reversal is mandated under Justice O’Connor’s
concurrence in Riley. His argument, however, rests almost entirely on
the factual assertion that the helicopter violated FAA regulations by
flying as low as 35 feet over his property. The district court rejected
Breza’s testimony and found that the helicopter fully complied with
applicable regulations regarding proper altitude. Additionally, testi-
mony from law enforcement officers established that such flights
were a regular occurrence in the area where Breza’s farm was located.3
We therefore conclude that the aerial observation of Breza’s property
did not violate his Fourth Amendment rights.

                                    B.

   Breza next contends that the law enforcement officers’ warrantless
entry into the vegetable garden violated his Fourth Amendment rights.
The question of whether Breza had a legitimate expectation of privacy
in his garden turns upon whether the garden was within the curtilage
of the house or, conversely, was an "open field" not subject to the pro-
tection of the Fourth Amendment. See Oliver, 466 U.S. at 180
(explaining that "only the curtilage, not the neighboring open fields,
warrants the Fourth Amendment protections that attach to the home");
Hester v. United States, 265 U.S. 57, 59 (1924). In United States v.
Dunn, 480 U.S. 294, 301 (1987), the Supreme Court instructed that

  3
    In his brief, Breza claims to have testified at the suppression hearing
that "overflights by helicopter over his property were definitely rare." Br.
of Appellant at 17. This is not exactly what Breza said, however. Breza’s
testimony did not refer to helicopter flights generally, but rather was
given in response to the specific question of whether it was usual for hel-
icopters to fly over his property at the claimed altitude of 35 feet.
6                      UNITED STATES v. BREZA
    curtilage questions should be resolved with particular refer-
    ence to four factors: the proximity of the area claimed to be
    curtilage to the home, whether the area is included within an
    enclosure surrounding the home, the nature of the uses to
    which the area is put, and the steps taken by the resident to
    protect the area from observation by people passing by.

The Court cautioned, however, that "these factors are useful analytical
tools only to the degree that, in any given case, they bear upon the
centrally relevant consideration—whether the area in question is so
intimately tied to the home itself that it should be placed under the
home’s ‘umbrella’ of Fourth Amendment protection." Id.

   A dispute exists among the circuits regarding the proper standard
to be applied in reviewing a curtilage determination by the district
court. See generally United States v. Johnson, 256 F.3d 895, 901 (9th
Cir. 2001) (per curiam) (en banc) (discussing dispute). Several courts
have held that because the application of the Dunn factors is fact-
intensive, review is for clear error. See, e.g., United States v. Soliz,
129 F.3d 499, 502 (9th Cir. 1997); United States v. Benish, 5 F.3d 20,
23-24 (3d Cir. 1993); United States v. Swepston, 987 F.2d 1510, 1513
(10th Cir. 1993). In contrast, the First Circuit has held that under
Ornelas v. United States, 517 U.S. 690, 699 (1996), the question of
whether an area is within the curtilage is ultimately a legal one, and
thus is subject to de novo review, while antecedent factual findings
are reviewed for clear error. See United States v. Diehl, 276 F.3d 32,
37-38 (1st Cir.), cert. denied, 71 U.S.L.W. 3236 (U.S. Oct. 7, 2002)
(No. 01-10091). We agree with the First Circuit that the Ornelas
standard—which is the same as that traditionally applied by this cir-
cuit to rulings on suppression motions, see Rusher, 966 F.2d at 873—
applies to curtilage determinations. With this standard in mind, we
proceed to review the relevant factors.

                            1. Proximity

   "There is not . . . any fixed distance at which curtilage ends."
United States v. Depew, 8 F.3d 1424, 1427 (9th Cir. 1993). Rather,
in determining whether the area searched was "intimately tied to the
home," Dunn, 480 U.S. at 301, courts have concluded that the prox-
imity of the area to the home must be considered in light of the other
                       UNITED STATES v. BREZA                         7
Dunn factors. See, e.g., Daughenbaugh v. City of Tiffin, 150 F.3d 594,
598-99 (6th Cir. 1998) (stating that distance of 50-60 yards was "in-
conclusive" by itself); Diehl, 276 F.3d at 39 (observing that 82-foot
distance was of "no decisive help" in curtilage determination). Thus,
while the fact that the entrance to Breza’s garden was only 50 feet
from his house would permit a conclusion that the garden was within
the curtilage, cf. Depew, 8 F.3d at 1427 (noting that distance of 60
feet "is close enough to permit a finding of curtilage if other factors
support such a finding"), it does not compel such a conclusion.

                            2. Enclosure

   Next, we must consider "whether the area is included within an
enclosure surrounding the home." Dunn, 480 U.S. at 301. "The proper
focus of this factor is on whether interior fencing clearly demarcates
the curtilage." United States v. Traynor, 990 F.2d 1153, 1158 (9th Cir.
1993). Here, the district court found that Breza’s vegetable garden
was "defin[ed] off" from the remainder of his yard by an interior
fence and a line of landscaping that included an ornamental garden
and several trees. J.A. 172. In light of this finding—which we cannot
say is clearly erroneous—we agree with the district court that the inte-
rior fence separating the garden from the lawn "clearly demarcates"
the boundaries of the home. Cf. Swepston, 987 F.2d at 1515 (conclud-
ing that garden separated from house by fence was not within curti-
lage). This factor therefore weighs against a ruling that the vegetable
garden was within the curtilage of Breza’s home.

                         3. Use of Property

   The third Dunn factor concerns the use of the area claimed to be
curtilage. In Dunn, the Supreme Court deemed it "especially signifi-
cant" that law enforcement officials "possessed objective data indicat-
ing that" the area claimed to be curtilage was being used for the
production of illicit drugs and not for "intimate activities of the
home." Dunn, 480 U.S. at 302. As in Dunn, the officers here had
observed marijuana growing in Breza’s garden, providing at least
some indication that the garden was not used for the intimate activi-
ties of home life. Cf. Traynor, 990 F.2d at 1158 (concluding that shop
used solely for growing marijuana was not within curtilage). And,
although "gardening is an activity often associated with the curtilage
8                      UNITED STATES v. BREZA
of a home," State v. Rogers, 638 A.2d 569, 573 (Vt. 1993), the district
court found, in light of the size of the garden and the amount of effort
Breza expended on it, that the garden was "not just a domestic activ-
ity, this [was Breza’s] work," J.A. 172. We cannot say that this find-
ing was clearly erroneous in light of the record before the district
court. Therefore, the use of the area also weighs against a determina-
tion that the vegetable garden was within the curtilage of Breza’s
home.
                             4. Visibility
   Finally, we must consider the steps taken by Breza to shield the
vegetable garden from the view of passers-by. We conclude that this
factor weighs against a determination that the garden was within the
curtilage of Breza’s home. Breza did choose his home place because
of the remote location. See Depew, 8 F.3d at 1428. However, it does
not appear that Breza made any additional effort to conceal the vege-
table garden from public view. Cf. Swepston, 987 F.2d at 1515 (con-
cluding that fence surrounding garden did not support finding of
curtilage because it was designed to corral chickens, not to obstruct
view).
                           5. Conclusion
   Having considered all of the Dunn factors, we conclude that
Breza’s vegetable garden was not "so intimately tied to the home
itself that it should be placed under the home’s ‘umbrella’ of Fourth
Amendment protection." Dunn, 480 U.S. at 301. Although the garden
was relatively close to Breza’s house and Breza had chosen to live in
an isolated location, these factors are outweighed by the clear demar-
cation of the vegetable garden from the landscaped portion of the yard
and the uses to which the garden was put.
                                  III.
  For the reasons set forth above, we conclude that neither the aerial
surveillance of Breza’s property nor the warrantless entry into his
vegetable garden infringed upon Breza’s Fourth Amendment rights.
We therefore affirm the denial of the motion to suppress.
                                                           AFFIRMED
