United States v. Piedad Barajas-Avalos, AKA Opinion Piedad Barajas-Avaslos

359 F.3d 1204 UNITED STATES of America, Plaintiff-Appellee, v. Piedad BARAJAS-AVALOS, aka Opinion Piedad Barajas-Avaslos, Defendant-Appellant. No. 02-30301. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2003 — Portland, Oregon. Filed March 10, 2004. COPYRIGHT MATERIAL OMITTED James G. Rice, Portland, OR, Oregon, for the defendant-appellant. Fred N. Weinhouse and Michael J. Brown, Assistant United States Attorneys, Portland, OR, Oregon, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CR-00-00537-JAR. Before: Arthur L. ALARCÓN, Warren J. FERGUSON, and Johnnie B. RAWLINSON, Circuit Judges. Opinion by Judge Alarcón; Partial Concurrence and Partial Dissent by Judge Ferguson OPINION ALARCÓN, Circuit Judge. 1 Piedad Barajas-Avalos was convicted of conspiracy to manufacture methamphetamine and attempting to manufacture and manufacturing methamphetamine in violation of federal law. He was sentenced to serve concurrent sentences of imprisonment for 360 months. 2 He seeks reversal of the judgment of conviction on the ground that the…

Piedad Barajas-Avalos was convicted of conspiracy to manufacture methamphetamine and attempting to manufacture and manufacturing methamphetamine in viola *1207 tion of federal law. He was sentenced to serve concurrent sentences of imprisonment for 360 months.

He seeks reversal of the judgment of conviction on the ground that the court erred in denying his motion to suppress the evidence seized pursuant to a search warrant. Mr. Barajas-Avalos contends that the facts relied upon by the magistrate judge in issuing the warrant were derived from earlier observations made by law enforcement officers by means of an unwarranted trespass onto his thirty-acre parcel of rural land and the natural clearing surrounding his travel trailer.

Mr. Barajas-Avalos also challenges the district courts sentencing decision. He contends that the court erred in denying his motion for a downward departure. He also asserts that the sentence imposed by the court is cruel and unusual punishment because he is not a recidivist felon.

We affirm the judgment of conviction because we conclude that probable cause existed for the issuance of the search warrant. We dismiss the portion of the appeal from the…

concurring in part and dissenting in part:

This case addresses the issue of whether the legitimacy of a government search may depend upon the results of that search. Because the Fourth Amendment prohibits such a rule, I dissent from Parts III, TV, and V of the majority opinion.

The majority opinion correctly notes that individuals have no legitimate expectation of privacy in “open fields,” with the exception of “the area immediately surrounding the home,” i.e., the home’s curti-lage. Oliver v. United States, 466 U.S. 170, 178 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984).

The majority also correctly concludes that the trailer on the Willow Tree Farm property was not a home. The federal agents who searched the trailer found no food .provisions, no dishes or utensils, and no cooking appliances inside. There were no sheets, blankets, pillows,, or sleeping bags on the beds. In short, there was nothing within the trailer to indicate that it was being used at, the time for a home.

Given that the trailer was not a home, the majority says,' “the natural clearing surrounding it was not protected.” They claim that federal agents had committed no Fourth Amendment violation because the…