                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1690
                                    ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the Eastern
                                     * District of Arkansas.
                                     *
Jimmy Albern Boyster,                *
                                     *
           Defendant-Appellant.      *
                                ___________

                              Submitted: November 14, 2005
                                 Filed: February 10, 2006
                                  ___________

Before MURPHY, McMILLIAN1, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

      After Jimmy Boyster was indicted for possessing and manufacturing marijuana,
he moved to suppress the evidence seized during a search of his property and
statements he made to officials at the scene. The district court2 denied the motion, and
Boyster subsequently entered a conditional guilty plea and was sentenced to 42

      1
       The Honorable Theodore McMillian died January 18, 2006. This opinion is
being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
      2
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
months imprisonment. Boyster appeals, arguing that the use of the Arkansas National
Guard to aid local law enforcement in the aerial surveillance of his property was
unlawful and that the evidence resulting from the subsequent search of the premises
should be suppressed. We affirm.

       On July 17, 2002, the Arkansas State Police (ASP) and the Arkansas National
Guard (the Guard) conducted aerial surveillance over portions of southern Arkansas.
The operation was conducted pursuant to the Arkansas National Guard FY 2002
Counterdrug Support Plan. Both the Governor of Arkansas and the Attorney General
of Arkansas had certified that the plan complied with federal and state law. Under the
plan the Guard provides support to local, state, and federal law enforcement agencies
in targeting and eliminating illicit drug operations.

        The two helicopters involved in this surveillance were flown by Guard pilots,
and spotters from the Guard and the ASP observed quantities of marijuana growing
around Boyster's residence and notified authorities on the ground. Based upon this
information, law enforcement officers from the Drug Enforcement Administration
(DEA) and ASP, as well as Guard personnel proceeded to Boyster's residence. They
told Boyster what the aerial surveillance had uncovered and asked for his consent to
search the premises. He acquiesced, and the search revealed over 2400 marijuana
plants growing on his property. The officers also discovered an eighteen wheel box
trailer with an electric cord running to Boyster's residence. The trailer contained
suspended fluorescent lights and bags of potting soil, and underneath it marijuana
plants were growing in plain view.

       Boyster was indicted on March 11, 2003 for possessing and manufacturing
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2(a). He
moved to suppress all evidence gathered as a result of the aerial surveillance, arguing
that the use of the Guard in a drug eradication flight was unlawful under Arkansas law
without a written proclamation from the governor calling up the Guard and

                                         -2-
authorizing it to participate in local law enforcement operations. Boyster further
argued that the aerial surveillance violated his fourth amendment rights because local
law enforcement had received unlawful assistance from the Guard. He asked that all
evidence from the subsequent search be suppressed, including the incriminating
statements he made to investigators.

        The district court held a suppression hearing on March 22, 2004 and heard from
ASP special agent Dennis Roberts, lieutenant colonels Richard Moore and Ray House
from the Guard, and Boyster. Agent Roberts testified that there were bush hogged3
trails visible from the air which led from Boyster's residence to other large plots of
land. He also described the amount and location of marijuana found on Boyster's
property and testified that Boyster had signed a consent form authorizing a search of
the property.

       Lieutenant Colonel Moore testified that, as the Counterdrug Coordinator for
Arkansas, he provided support to local law enforcement during this operation. He was
responsible for ensuring that the National Guard was acting in compliance with
federal and state law pursuant to a valid state plan signed by the governor. On cross
examination he testified that the plan for the current year would not be released to the
public until after the end of the year, in order to protect the service members involved,
and that he was unaware of any written order by the governor calling up the Guard for
drug eradication purposes. Although House could recall instances in which the Guard
had been mobilized without a signed proclamation from the governor, none were part
of a law enforcement operation.

      Boyster testified that two Guard helicopters were flying no more than one
hundred feet above his property and that one landed on adjacent property. The first


      3
        A bush hog is a large rotary cutter that is pulled behind a tractor to mow land
and to cut trails.

                                          -3-
individuals who came to his residence were in army fatigues he said, and local law
enforcement arrived some 30 - 45 minutes later. He admitted that he gave the
government agents permission to "look around" and that he signed a consent to search
form, but he claimed that he only signed it after being told they "weren't after me."
He affirmed on cross examination that he had also signed a statement admitting he
grew marijuana on his land, but he denied knowing what was in the statement when
he signed it.

       The district court denied Boyster's motion to suppress after hearing testimony
and receiving various exhibits, including a video of the aerial surveillance. The court
determined that 32 U.S.C. § 112 allows the use of the Guard in drug interdiction if it
is pursuant to a state plan and consistent with Arkansas law. The court concluded that
Arkansas law gives the governor the authority to utilize the Guard for this purpose and
does not require a specific proclamation in each instance in which the Guard is called
up by the state. The district court also found that Boyster did not have an expectation
of privacy in the land surveyed by the helicopters and that there was probable cause
for the DEA and ASP to go to Boyster's residence and continue their investigation
once the spotters identified marijuana in the field adjacent to his residence. When the
officers who approached his residence on the ground saw that there was marijuana in
plain view on his property, there was additional probable cause for the search.
Finally, the court found that Boyster's statements to investigators were voluntary and
admissible.

      Boyster complains that the Guard's participation in the aerial surveillance of his
property was unlawful because the governor had not issued a proclamation
authorizing participation by the militia as required by Arkansas law. He argues that
he had an expectation of privacy in the absence of such a proclamation, that the search
therefore violated the Fourth Amendment, and that the evidence obtained as a result
must be excluded for that reason and as fruit of the poisonous tree. The United States
responds that Arkansas law does not require a written or public gubernatorial

                                          -4-
proclamation for the state to use the Guard and that the Fourth Amendment was not
implicated by the search because Boyster had no expectation of privacy. We review
de novo the district court's legal conclusions on a motion to suppress and its factual
findings for clear error. United States v. Williams, 429 F.3d 767, 771 (8th Cir. 2005).

       An aerial surveillance by helicopter was held not to violate the Fourth
Amendment in Florida v. Riley, 488 U.S. 445(1989), because the defendant had had
no reasonable expectation of privacy. The Supreme Court also pointed out that it was
of "obvious importance" that the helicopter had been violating no law and that the
situation would have been different "if flying at that altitude [400 feet] had been
contrary to law or regulation." 488 U.S. at 451. Boyster seeks to distinguish Riley on
the basis that the aerial surveillance here was unlawful because it had not been
authorized by a proclamation from the governor.

       Federal law authorizes funding for the use of the National Guard in drug
interdiction efforts, 32 U.S.C. § 112(b)(1), and the Arkansas Constitution authorizes
the governor to call up the Guard "in such manner as may be authorized by law." Ark.
Const. § 4. The Arkansas legislature has in turn spelled out this authority in several
statutory provisions. The governor may call up the Guard for "active service of the
state for such a period, to such extent, and in such manner as he may deem necessary"
in order to "preserve the public health and security and maintain law and order."
A.C.A. § 12-61-111(a)(1) (emphasis added). Whenever any part of the Guard is
called to aid civilian authorities,

      the Governor, if in his judgment the maintenance of law and order or
      preservation of the public health or security will thereby be promoted,
      may by proclamation declare the county, city, zone, or sector in which
      the troops are serving, or any specified portion thereof, to be in a state of
      insurrection or emergency.




                                          -5-
A.C.A. § 12-61-115(a) (emphasis added). Boyster concedes that these provisions
authorize the governor to call up the Guard for drug interdiction efforts for the benefit
of public welfare and security, but he claims that § 12-61-115(a) requires issuance of
a proclamation from the governor in every instance in which the Guard aids local law
enforcement.

       We begin with the plain language of § 12-61-115, and our inquiry ends if the
provision is unambiguous. United States v. Maswai, 419 F.3d 822, 824 (8th Cir.
2005); Royal v. Kautzky, 375 F.3d 720, 728-29 (8th Cir. 2004); see also Releford v.
Pine Bluff School Dist. No. 3, 140 S.W.3d 483, 485-86 (Ark. 2004). The language
of this provision should also be examined in a way to prevent other parts of the
Arkansas Code from being meaningless, inconsistent, or superfluous. Cody v. Hillard,
304 F.3d 767, 776 (8th Cir. 2002); see also Locke v. Cook, 434 S.W.2d 598, 601
(Ark. 1968).

       Section 12-61-115(a) uses permissive rather than mandatory language. It
provides that if the governor "in his judgment" believes the Guard needs to be called
up in the interest of protecting health and security, he "may by proclamation" declare
a state of insurrection or emergency. It does not say that the governor can only call
up the Guard by means of a proclamation or that a proclamation is necessary. Other
provisions of the Arkansas Code also support this reading and demonstrate precision
in the drafting language. Section 12-61-111(a)(1) provides that the governor can call
up the Guard for the same purposes "in such manner as he may deem necessary" and
does not indicate that a proclamation is required. Sections 12-61-115(a) and 12-61-
111(a)(1) are thus consistent with each other. Section 12-61-115(b) in contrast
provides that the "enforcement of the civil laws of the state shall be performed by the
militia" if the courts or law enforcement cannot function. (emphasis added). The
Arkansas courts have long presumed that when "shall" is used in the state statutes,
"the legislature intended mandatory compliance ... unless such an interpretation would
lead to absurdity." Fulmer v. State, 987 S.W.2d 700, 703 (1999); Hattison v. State,

                                          -6-
920 S.W.2d 849 (1996); Klinger v. City of Fayetteville, 732 S.W.2d 859 (1987); Loyd
v. Knight, 706 S.W.2d 393 (1986). The converse must also be true – that the use of
"may" signifies the legislature's intent to establish discretionary authority unless that
result would be absurd. See, e.g., John T. v. Marion Independent School Dist., 173
F.3d 684, 688 (8th Cir. 1999). We conclude that the statutory scheme leaves the
decision whether to issue a proclamation to the discretion of the governor and that the
lack of such a proclamation here does not mean that the Guard's involvement in the
counterdrug surveillance was unlawful, particularly when the governor has
specifically certified that the counterdrug plan complies with state law.

       Boyster also complains that the aerial surveillance infringed upon his privacy
rights in violation of the Fourth Amendment. The government responds that there is
no constitutional issue here because the initial discovery of marijuana was outside the
curtilage of Boyster's residence in an unprotected open field and that any expectation
of privacy would be unreasonable under the circumstances even if the land had been
in his curtilage. Boyster disputes this claim, referring to a statement in DEA Agent
Hydron's investigative report that the seized marijuana had been located "in an area
of and on the curtilage of" Boyster's residence. Boyster bears the burden to prove that
he had a legitimate expectation of privacy in the thing being searched or surveyed.
United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir. 1994); see also Riley, 488 U.S.
at 455 (O'Connor, J., concurring).

       The Fourth Amendment protects the curtilage of an individual's residence, but
not surrounding open fields. See Hester v. United States, 265 U.S. 57, 59 (1924).
Curtilage is "the area to which extends the intimate activity associated with the
sanctity of a man's home and the privacies of life," Oliver v. United States, 466 U.S.
170, 180 (1984) (internal citations omitted), and is typically comprised of land
adjoining a house, often within some type of enclosure such as a fence. See Black's
Law Dictionary 411 (8th ed. 1999); see also United States v. Gerard, 362 F.3d 484,
487-88 (8th Cir. 2004) (presence of a fence between the primary residence and

                                          -7-
another area typically means that area is outside the curtilage). Determining whether
a particular area is part of the curtilage of an individual's residence requires
consideration of "factors that bear upon whether an individual reasonably may expect
that the area in question should be treated as the home itself." United States v. Dunn,
480 U.S. 294, 300 (1987); see also Oliver, 466 U.S. at 180. Although every curtilage
determination grows out of its own set of facts, Gerard, 362 F.3d at 487, four factors
are particularly significant: "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." Dunn, 480 U.S. at 301; see
also Gerard, 362 F.3d at 487; United States v. Mooring, 137 F.3d 595, 596 (8th Cir.
1998).

       After reviewing the record, we conclude that the district court did not err by
determining that the aerial surveillance had not occurred within the curtilage of
Boyster's residence. The statement by agent Hydron that marijuana was located on
the curtilage of his property is only one of the facts in the record, and we must
examine their totality in light of Dunn. The observed field was located over 100 yards
from the residence, and it was not enclosed by a fence. It does not appear that Boyster
took any ordinary precautions to keep the marijuana from being visible to onlookers,
and nothing in the record indicates that the land was used for any legitimate purpose
associated with a residence. The land in question is more properly considered an
unprotected open field with marijuana plants in plain view. Hester, 265 U.S. at 58-59;
see also United States v. Pennington, 287 F.3d 739, 745 (8th Cir. 2002) (field outside
the curtilage of defendant's residence was an open field that could be entered without
a warrant and everything in plain view could be searched).

       Even if the land in question were within the curtilage, Boyster would still have
to demonstrate that he maintained a legitimate expectation of privacy which was
infringed by the aerial surveillance. An expectation of privacy is only legitimate if the

                                          -8-
individual challenging the search had manifested a subjective expectation of privacy
in the thing searched and demonstrated that his belief is objectively reasonable. Katz
v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). We assume
without deciding that Boyster had a subjective expectation of privacy and focus on
whether such an expectation could be objectively reasonable. So long as the aerial
surveillance took place in an area where the public could legally fly and at an altitude
generally used by the public, there would be no reasonable expectation of privacy and
thus no offense to the Fourth Amendment. Riley, 488 U.S. at 455 (O'Connor, J.,
concurring); see also United States v. Clark, 980 F.2d 11431146 (8th Cir. 1992);
United States v. Hendrickson, 940 F.2d 320, 323 (8th Cir. 1991).

       Boyster has made no allegation that the Guard pilots offended any federal
aviation regulation, and under existing federal law "[a]ny member of the public could
legally have been flying over [Boyster's] property in a helicopter" and could have
observed the marijuana plants growing in the open field. Riley, 488 U.S. at 451; see
also 14 C.F.R. § 91.119 (helicopters may be operated below the minimums set for
aircraft if done without hazard to persons or property below). Boyster has failed to
establish the altitude of the flight in question, and even if it were at an altitude of
around one hundred feet as he alleges, he has not shown that flights at this altitude are
so rare as to make aerial surveillance at that level unreasonable. Riley, 488 U.S. at 455
(O'Connor, J., concurring).

       We conclude that Boyster's asserted expectation of privacy is not one "that
society is prepared to accept" as reasonable. California v. Ciraolo, 476 U.S. 207, 214
(1984) (finding that defendant's expectation that his garden was protected from lawful
aerial surveillance by law enforcement was unreasonable); Riley, 488 U.S. at 451-52
(upholding the aerial surveillance of greenhouse by law enforcement flying at an
altitude of 400 feet since there was no reasonable expectation of privacy). The aerial
surveillance in this case did not violate the Fourth Amendment.



                                          -9-
For these reasons we affirm the judgment of the district court.
                ______________________________




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