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

377 F.3d 1040 UNITED STATES of America, Plaintiff-Appellee, v. Piedad BARAJAS-AVALOS, aka Piedad Barajas-Avaslos, Defendant-Appellant. No. 02-30301. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2003. Filed March 10, 2004. Amended July 26, 2004. COPYRIGHT MATERIAL OMITTED James G. Rice, Portland, OR, for the defendant-appellant. Fred N. Weinhouse and Michael J. Brown, Assistant United States Attorneys, Portland, OR, 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 ALARCÓN, FERGUSON, and RAWLINSON, Circuit Judges. 1 Opinion by Judge ALARCÓN; Partial Dissent by Judge FERGUSON. ORDER 2 The court's opinion, filed March 10, 2004 [ 359 F.3d 1204 ], is amended as follows: 3 The final sentence of the second full paragraph on slip op. 2878 [ 359 F.3d at 1213 ] that reads, "In the instant matter, the officers did not enter the trailer or use a device to explore its interior," is deleted. 4 The two paragraphs on slip op. 2879-80 [ 359 F.3d at 1213-14 ] that read: 5 We agree with Mr. Barajas-Avalos that "there is no Fourth…

Opinion by Judge ALARCÓN; Partial Dissent by Judge FERGUSON.

*1043 ORDER

The court’s opinion, filed March 10, 2004 [ 359 F.3d 1204 ], is amended as follows:

The final sentence of the second full paragraph on slip op. 2878 [ 359 F.3d at 1213 ] that reads, “In the instant matter, the officers did not enter the trailer or use a device to explore its interior,” is deleted.

The two paragraphs on slip op. 2879-80 [ 359 F.3d at 1213-14 ] that read:

are deleted. The following paragraph shall be substituted in their place and inserted at slip op. 2879:

In the paragraph beginning on slip op. 2882 [ 359 F.3d at 1215 ] and ending on slip op. 2883 [ 359 F.3d at 1215 ], the penultimate sentence reading, “The record is undisputed that the travel trailer did not contain dishes, food, cooking utensils, clothing, bedding, a radio or television, or a hookup to electricity, plumbing, or a source of water,” is deleted. It is replaced with the following lines:

The final sentence in the first full paragraph on slip op. 2883 [ 359 F.3d at 1216 ] stating, “We hold that the curtilage doctrine applies to the area immediately surrounding a home, not to an empty structure used occasionally as sleeping…

dissenting in part:

I dissent from Parts III, IV, and V of the majority opinion.

The majority holds that the government agents were permitted to infer that the trailer was not used as a home 1 from three facts: (1) the Portland General Electric Company did not provide electrical service; (2) the officers did not observe anyone spending the night in the trailer when they observed the property approximately ten or eleven times in the morning or evening hours; and (3) neighbors reported that no one lived on the property (this fact is a mistatement of the evidence).

The fact is, there are people in this country who do live without electricity. The U.S. Department of Energy calculates that 1.4% of U.S. households either do not pay for or have no access to electricity. 2 Energy Info. Admin., Office of Coal, Nuclear, Electric and Alternate Fuels, U.S. Dept, of Energy, Energy Consumption and Renewable Energy Development Potential on Indian Lands ix, 3 (2000), http://www.eia.doe.gov/cneaf/solar .renewa-bles

/ilands/iland_sum.html. I cannot join an opinion that suggests that a house is npt a “home,” with all the constitutional protections that status carries, because it lacks an…