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Name: U.S. v. Johnson
Case #: 99-30012
Court: US Court of Appeals
District 9 Cir
Opinion Date: 07/20/2001
Subsequent History: None
Summary

A majority of the en banc court concluded that the officers involved in the search did not have probable cause to enter defendant Johnson’s 12-acre property in a sparsely populated area. The officers were pursuing defendant’s neighbor Smith, who had run away from the officer who was trying to arrest Smith at Smith’s residence for misdemeanor warrants. Smith had run into the woods while on Smith’s parents’ lot, which was adjacent to defendant’s. At the locked gate of defendant’s driveway (which had a “no trespassing” sign and which was 250 yards from the public highway), the officers maniplated the gate open and while searching outbuildings for defendant (after no one answered the door), they smelled marijuana in a shed, which lead to the issuance of a search warrant. The majority concluded there was no not pursuit or exigent circumstances justifying the search. The same majority concluded that whether the search occurred within the curtillage is a question that must be determined in the first instance by the trial court. A different majority (actually the first majority was 6 judges and the second majority was also 6 judges) concluded that the determination of curtillage must be reviewed de novo on appeal. Five of those judges concluded that the search was outside the curtillage.