                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 21, 2004
                       _______________________
                                                          Charles R. Fulbruge III
                             No.03-40520                          Clerk
                       _______________________


                      UNITED STATES OF AMERICA,

                        Plaintiff – Appellee,

                                  v.

                          ROY JAMES PERRY,

                        Defendant – Appellant.

                       _______________________

             Appeal from the United States District Court
         for the Eastern District of Texas, Beaumont Division
                         USDC No. 1:02-CR-47-1
                        _______________________


Before JONES, WIENER, and PRADO, Circuit Judges.

PER CURIAM:1

     Roy James Perry (Perry) was convicted of one-count of

manufacturing and possessing with the intent to distribute

between 100 and 1,000 marijuana plants under 21 U.S.C. § 841

(a)(1).    Perry appeals his conviction, asserting that the

district court erred by denying his motion to suppress the

marijuana plants and a clipboard seized by law enforcement.          For

the reasons stated below, we uphold the district court’s denial


     1
      Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
                                1
of Perry’s motion to suppress and affirm his guilty-plea

conviction.

                    FACTUAL & PROCEDURAL BACKGROUND

       On July 6, 2001, Special Agent Marichael Pope (Special Agent

Pope) of the Drug Enforcement Agency (DEA) and other law

enforcement officers received a tip that marijuana was being

grown in an area off County Road 2331 in Liberty County, Texas.

A DEA agent performed an overflight of the area and reported

seeing some patches of marijuana growing there.       Special Agent

Pope then flew over the area in a helicopter to investigate

further.

       Special Agent Pope testified that, during his aerial search,

he observed marijuana plants growing on a tract of brushy, wooded

land, which belonged to Perry’s family.    Special Agent Pope also

observed two structures near the plants — one about the size of

an outhouse, and the other approximately three times larger.       He

testified that, from the air, he was able to ascertain that no

one inhabited the smaller structure, but was unable to tell if

anyone lived in the larger building.

       Having concluded that marijuana was being grown in the

field, Special Agent Pope landed his helicopter on the property

approximately twenty yards from the plants he had seen from the

air.    He then investigated on foot and confirmed three patches of

marijuana were being cultivated with an irrigation system on

Perry’s property.    He also located the two structures he had seen
                                   2
aerially.   Special Agent Pope stated he was able to determine

these buildings were not residences because they were not fully

enclosed.   He observed that the smaller shed contained

fertilizer, gardening tools, and other plant cultivation

products, and the larger shed appeared to house an indoor growing

area.

     After Special Agent Pope’s investigation on the ground, he

contacted Sergeant Jack Smith (Sergeant Smith) of the Texas

Department of Public Safety (TDPS).   Sergeant Smith arrived and

also performed an aerial search of the field.    From the

helicopter, Sergeant Smith discerned the marijuana plants, a

well, irrigation lines, and sheds on the property.    He testified

that, from the air, he observed no structures that were obviously

residences, but that he was not certain the larger shed was not a

residence until he later entered the property.

     Initially, Sergeant Smith refused to enter the property

without a warrant.   Sergeant Smith and Special Agent Pope

discussed whether a warrant was needed in order to enter the

property legally, and sought the advice of an Assistant United

States Attorney (AUSA).   Both Special Agent Pope and Sergeant

Smith testified that they could have obtained a warrant if

necessary and that there were no exigent circumstances.     However,

the AUSA and Special Agent Pope agreed that no warrant was

required because the property was an “open field” not afforded

protection under the Fourth Amendment.   Thus, law enforcement

                                 3
officers cut a lock on the gate to the property and entered the

land in all-terrain vehicles.   Law enforcement seized 594

marijuana plants and a clipboard that was in the smaller shed.

     Perry was charged in a one-count indictment with

manufacturing and possessing with the intent to distribute

between 100 and 1,000 marijuana plants under 21 U.S.C. § 841

(a)(1).   Perry filed a motion to suppress the evidence seized by

law enforcement.   At the suppression hearing, Perry conceded that

the “open fields doctrine” permitted the search of the property,

but maintained the doctrine did not allow the subsequent seizure

without a warrant.   The Government, on the other hand, argued

that no warrant was necessary under the open fields doctrine.

The district court denied Perry’s motion to suppress.   Perry

conditionally pleaded guilty to the indictment, reserving his

right to appeal the denial of his motion to suppress.   Perry

timely appealed his conviction.

                            DISCUSSION

     On appeal, Perry contends the district court erred in

denying his motion to suppress evidence seized on his property.

Perry renews his argument that, while the aerial search of the

land was permissible under the open fields doctrine, the

warrantless seizure of his property violated the Fourth

Amendment.

     In reviewing a ruling on a motion to suppress made after a

suppression hearing, we accept the trial court’s factual findings
                                  4
unless they are clearly erroneous or influenced by an incorrect

analysis of the law, and review conclusions of law de novo.

United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993); United

States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984).      In

addition, this Court “view[s] the evidence in the light most

favorable to the prevailing party.”   United States v. Piaget, 915

F.2d 138, 140 (5th Cir. 1990).   As Perry challenges only the

district court’s legal conclusions, the issues in this case are

reviewed de novo.

     Under the exclusionary rule, “evidence obtained in violation

of the Fourth Amendment cannot be used in a criminal proceeding

against the victim of [an] illegal search and seizure."      United

States v. Calandra, 414 U.S. 338, 347 (1974) (citations omitted).

Searches and seizures conducted by law enforcement, without prior

approval by a judge or magistrate, are per se unreasonable unless

the government can show that the search and seizure falls within

one of the few specifically defined exceptions to the warrant

requirement.   See Minnesota v. Dickerson, 508 U.S. 366, 372

(1993).   The "open fields doctrine" provides one of those

exceptions.

     In Hester v. United States, 265 U.S. 57, 59 (1924), the

Supreme Court held that "the special protection accorded by the

Fourth Amendment to the people in their 'persons, houses, papers

and effects,' is not extended to open fields."   The Court

                                 5
reaffirmed the open fields doctrine more recently in Oliver v.

United States, 466 U.S. 170 (1984).   In Oliver, the Court found

there can be no “search” of an open field within the meaning of

the Fourth Amendment because society does not recognize an

expectation of privacy in such areas – even when those areas are

bounded by fences with "no trespassing" signs.   Id. at 178-81.

     As a preliminary matter, we must determine the scope of the

seizure at issue.   Perry contends that the seizure consisted not

only of the confiscation of the marijuana plants and clipboard,

but also included Special Agent Pope’s landing of the helicopter

on Perry’s property, the cutting of the lock on the gate, and the

entry of vehicles onto the land.   This argument is misplaced.

The entrance of law enforcement onto the land constituted a

search of an open field rather than a seizure.   Such searches are

not protected by the Fourth Amendment under the open fields

doctrine as set forth in Oliver.

     In Oliver, the Supreme Court held that Fourth Amendment

protection does not extend to open fields, even when a government

agent trespasses on land that is private property.   Id.; see also

Husband v. Bryan, 946 F.2d 27, 29 (5th Cir. 1991).   Oliver

involved two cases consolidated on appeal.   In both cases, law

enforcement physically entered a defendant’s property without a

warrant.   In one case, the officers drove past a locked gate with

a "No Trespassing" sign on it.   In the other case, the officers

walked past the defendant's residence to reach the open land.
                                6
Oliver, 466 U.S. at 173-74.   The Supreme Court concluded these

intrusions upon open fields did not implicate the Fourth

Amendment and that no warrant was required.   Similarly, the

agents in the instant case entered Perry's brushy, undeveloped

property in order to search for the marijuana they had observed

from the air.   Thus, the Government's physical entry onto Perry's

property did not constitute a seizure, but was rather a legal

search afforded no Fourth Amendment protection under the open

fields doctrine.

     Under the foregoing reasoning, the challenged seizure

consisted only of the confiscation of the marijuana plants and

the removal of a clipboard from one of the sheds.   Thus, we must

next determine whether the warrantless seizure of those items

violated Perry’s rights under the Fourth Amendment.    Perry

contends the seizure was illegal because it was not sanctioned

under the open fields doctrine.   However, it is unnecessary for

us to address this argument, as we find the plants and clipboard

were legally seized under the “plain view doctrine.”

     It is well-established that under certain circumstances,

officers may seize evidence in plain view without a warrant.

Horton v. California, 496 U.S. 128, 134 (1990) (internal citation

omitted).   The plain view doctrine will support a warrantless

seizure if: (1) the officer was lawfully in the position from

which the object was plainly seen; (2) the object was in plain

view; (3) the object’s incriminating nature was immediately
                                  7
apparent – i.e., the officer had probable cause to believe the

object was contraband or evidence of a crime; and (4) the officer

had a lawful right of access to the object itself.   See id. at

136-37; United States v. Paige, 136 F.3d 1012, 1023 (5th Cir.

1998); United States v. Buchanan, 70 F.3d 818, 826 (5th Cir.

1995).   We find that the seizure in this case satisfies each of

these elements.

     The first element in this analysis requires the officers to

have lawfully been in the position from which they viewed the

contraband.   Here, Sergeant Smith and Special Agent Pope each

initially viewed the three patches of marijuana plants from the

air and then entered Perry’s property for a closer look.    As

discussed above, both the aerial searches and entry onto the

property — which allowed the officers to plainly view the

marijuana plants, the two sheds and certain of their contents —

were legal under the open fields doctrine.   Thus, the officers

were lawfully in a position to observe the seized property.

     To satisfy the second element under the plain view doctrine,

the plants and clipboard on Perry’s property must have been in

plain view.   The officers testified that they first identified

the marijuana plants while flying over the field in a helicopter.

Even more clear was their view of the plants once they had

lawfully entered the property.   Furthermore, Special Agent Pope

and Sergeant Smith testified that the contents of the smaller

shed, which included such items as the clipboard seized, were
                                 8
plainly visible from the outside because that structure was not

fully enclosed.   The officers stated the smaller shed was

essentially open because it lacked a full wall on one side.

Under these circumstances, we find the plants and clipboard were

in plain view of the officers.

     The third element requires a showing that the incriminating

nature of the marijuana plants and the clipboard was “immediately

apparent”.   For purposes of the plain view exception, the

incriminating nature of an item is immediately apparent if the

officers had probable cause to believe the item was contraband or

evidence of a crime.     See Buchanan, 70 F.3d at 826.

     Here, Special Agent Pope and Sergeant Smith were DEA and

TDPS officers who each had substantial training and expertise in

identifying marijuana.    Special Agent Pope had been part of the

aerial surveillance suppression and eradication program of the

DEA since 1994, and had been coordinator of that program since

1999.   He testified that since 1994, he had seen approximately

several hundred marijuana cultivation sites per year.    Sergeant

Smith was likewise experienced, having been employed in the

narcotics division of TDPS for fourteen years, and having taught

suppression schools with TDPS for much of that time.

Accordingly, we are satisfied that the officers had probable

cause to believe the three fields of plants they identified from

the air and on the ground consisted of marijuana contraband.      See

United States v. Raines, 243 F.3d 419, 422 (8th Cir. 2001)
                                   9
(noting that the plain view doctrine would have permitted an

officer to seize marijuana plants in the defendant’s backyard

without a warrant, and that the officer’s training and expertise

made the incriminating nature of the plants “immediately

apparent”).

     Sergeant Smith also seized a clipboard from the smaller of

the two sheds on the property, which also contained products such

as fertilizer and gardening tools.   According to testimony of the

officers, the clipboard appeared to be a kind of log concerning

plant cultivation.   Sergeant Smith testified that law enforcement

saw no other evidence of gardening or plant cultivation on the

property other than the fields of marijuana.   Thus, Sergeant

Smith concluded the objects contained within the smaller shed,

including the clipboard, were being utilized in the cultivation

of the marijuana seized on the property.   We find that, based on

his confiscation of 594 marijuana plants nearby and his

experience in identifying marijuana-growing paraphernalia,

Sergeant Smith had probable cause to believe the clipboard seized

was evidence of a crime.

     Under the fourth and last requirement of the plain view

exception, we must determine whether the officers had a lawful

right of access to the marijuana and clipboard.   This element of

the plain view doctrine protects individuals from warrantless

seizures “in situations such as when an officer on the street

sees an object through the window of a house, or when officers
                                10
make observations via aerial photography or long-range

surveillance.”   Paige, 136 F.3d at 1024 (quoting G & G Jewelry,

Inc. v. City of Oakland, 989 F.2d 1093, 1101 (9th Cir. 1992)).

In those cases, the plain view doctrine does not justify a

warrantless seizure because persons still retain an expectation

of privacy, which requires a warrant for legal entry, upon their

private premises.   See id.

     As explained at length above, however, the open fields

doctrine dictates that Perry retained no such expectation of

privacy in his rural property, and the physical entrance of DEA

and TDPS officers onto his land was lawful without a warrant.

See Oliver, 466 U.S. 170 (holding that searches involving the

physical entrance of officers onto land were legal without a

warrant because the defendants had no expectation of privacy in

open fields); see also Paige, 136 F.3d at 1024.      Therefore, the

officers had a lawful right of access to the actual land where

the marijuana and sheds were located.      Further, we find that

Perry had no reasonable expectation of privacy in an open shed

that was visibly not a residence or within the curtilage of a

residence, and that was located in an open field.      Thus, the

officers had a lawful right of access to the clipboard as well.

Consequently, we conclude that under the plain view doctrine, the

warrantless seizure of the marijuana plants and the clipboard did

not violate the Fourth Amendment.

                              CONCLUSION
                                  11
     In summary, we hold that the Government’s search of Perry’s

property, consisting of the aerial inspection and physical entry

onto the land, was legal without a warrant under the open fields

doctrine.   Further, the subsequent warrantless seizure of the

marijuana and clipboard was lawful under the plain view exception

to the warrant requirement.   Because the district court properly

denied Perry’s motion to suppress, we AFFIRM Perry’s conviction.

AFFIRMED.




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