United States v. Rey (663 F. Supp. 2d 1086, 2009)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion to Suppress Evidence Obtained From Illegal Search, filed March 22, 2009 (Doc. 112). The Court held an evidentiary hearing on June 12 and 17, 2009. The primary issue is whether the Court should suppress evidence of marijuana plants seized from Defendant Michael Rey’s property in Sandoval County, New Mexico, near Jemez Springs. This issue turns on: (i) whether the affidavit supporting the search warrant executed at Rey’s property was supported by probable cause that was lawfully obtained; (ii) whether the area around a power line on which law enforcement officers walked to observe marijuana growing was part of the curtilage of Rey’s property; (iii) whether the evidence seized should be suppressed as fruit of the poisonous tree of a potentially unlawful security sweep of Rey’s property or whether the independent-source doctrine applies; and (iv) whether the warrant is invalid because the attesting officer did not disclose that he may have lacked jurisdiction under state law to execute the warrant in Sandoval County. The Court finds that the aerial observations of growing marijuana are sufficient to establish probable cause. Moreover, because the Court determines that the officers did not enter any curtilage on Rey’s property when walking under a power line from which they could view marijuana on Rey’s property, their search was lawful and thus the information obtained from that vantage can be used to support a search warrant and cannot be the basis of the suppression of any evidence as fruit of the poisonous tree. While the officers’ later security sweep may have been unlawful—an issue the Court need not decide—the independent source doctrine applies here and so that sweep cannot require the suppression of the evidence seized under the warrant. Finally, because the jurisdiction of officers under state law is irrelevant to whether there has been a Fourth Amendment violation and because officers do not need to disclose information unrelated to probable cause to a judicial officer when applying for a warrant, there were no material omissions that would invalidate the search warrant. Accordingly, the seizure of the marijuana plants complied with Fourth Amendment requirements, and the Court will deny Rey’s motion to suppress evidence.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. The findings of fact in this Memorandum Opinion and Order shall serve as the Court’s essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt, 695 F.2d 1263 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 1101(d)(1). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269.

FINDINGS OF FACT

1. On August 29, 2006, Rio Rancho Department of Public Safety Sergeant Jamie Homann, Detective John Rose, Detective Karl Doering, Detective Kevin Dupre, and Officer Lisa Gowan, along with Drug Enforcement Administration (“DEA”) Special Agent Kevin Small and members of the New Mexico National Guard, were engaged in a marijuana eradication operation for the Middle Rio Grande Valley Task Force. See Transcript of Hearing at 15:13-25, 17:7-12 (Dupre & Braun)(taken June 12, 2009)(filed August 23, 2009)(Doc. 136)(“I Tr.”).

2. At the time, Small had been a special agent with the DEA for over twenty years, and from 1988 to about 1990 or 1991, he was the DEA’s New Mexico marijuana eradication coordinator. See I Tr. at 72:25-73:9 (Small).

3. At the time, Doering was a detective at the Rio Rancho Department of Public Safety who had experience investigating marijuana grows and was familiar with the appearance of marijuana plants. See I Tr. at 153:11-154:4 (Braun & Doering).

4. At the time, Dupre was joining the group to act as an aerial spotter. See I Tr. at 15:13-25 (Braun & Dupre).

5. A spotter in a helicopter looks for marijuana plants growing on the ground. See I Tr. at 14:17-19 (Dupre).

6. Dupre has been in law enforcement since 1988 and has previous experience in marijuana investigations, including experience conducting clandestine marijuana purchases and experience in Washington state working on eradicating marijuana groves and acting as a helicopter spotter. See I Tr. at 14:1-6,14:9-15 (Dupre).

7. Several weeks before August 29, 2006, Dupre had attended an eight-hour class to become certified as a spotter in New Mexico, but from his previous experience in Washington was familiar with how marijuana plants looked from the air. See I Tr. at 14:22-15:1 (Dupre), 15:8-12 (Braun & Dupre).

8. This training course was primarily in helicopter safety rather than spotting, and the certification came from the National Guard. See I Tr. at 31:19-32:15 (Gorence & Dupre).

9. Dupre considered himself to be a certified spotter because of the training and certification he received. See I Tr. at 66:4-7 (Braun & Dupre).

10. On the morning of August 29, 2006, at around 7:30 to 8:00 a.m., Dupre and the helicopter took off from Double Eagle Airport, and headed along the Rio Grande River over several pueblos, before coming to the Jemez Springs, New Mexico area. See I Tr. at 16:23-24, 17:13-18:7 (Braun & Dupre).

11. While flying at a height of about five-hundred feet in the in the area around Jemez Springs, near Soda Dam, Dupre observed bright green plants that contrasted with the surrounding vegetation, and which he thought, based on his training and experience, were marijuana plants. See I Tr. at 18:17-25, 19:11-13, 19:19-22, 67:17-23 (Dupre & Braun).

12. These plants appeared to be growing in pots and to have been arranged by a person, rather than growing wild. See I Tr. at 18:23-25 (Dupre).

13. The helicopter descended to a height of about one hundred feet for a better look, and Dupre became “pretty positive” that the green plants in the pots were marijuana plants. I Tr. at 19:1-3 (Dupre).

14. The plants were growing near some power lines along State Road 4. See I Tr. at 19:25-20:7 (Braun & Dupre).

15. Dupre believed that the plants he saw were marijuana, but could not say that the plants were without a doubt marijuana unless someone on the ground verified that they were. See I Tr. at 40:1-10 (Gorence & Dupre).

16. Dupre saw a dome-like building near the area where he saw marijuana growing. See I Tr. at 19:13-15 (Dupre).

17. Dupre radioed Doering, told Doering that Dupre has spotted marijuana growing and directed him and the other members of the task force on the ground towards the marijuana. See I Tr. at 19:5-6, 20:1-3 (Dupre).

18. As Dupre was guiding the posse towards the plants, the helicopter pilot told Dupre that they were low on fuel and needed to get back to the airport. See I Tr. at 19:7-10 (Dupre).

19. The area to which Dupre guided the other officers was a piece of property along New Mexico State Road No. 4. See Boundary Survey Platte; I Tr. at 18:7-12 (Braun & Dupre).

20. Dupre guided the officers to an area near the marijuana where he saw a drive and a cluster of mailboxes. See I Tr. at 20:l-3(Dupre); id. at 156:12-157:6 (Doering).

21. Doering and several other officers parked near the mailboxes by the drive, and were informed by Dupre that they were in the right place before Dupre told the officers that the helicopter was low on fuel and had to return to the airport. See I Tr. at 157:2-25 (Doering & Braun).

22. Small was parked and waiting outside the Santa Ana Star Casino when he heard Dupre announce that he had spotted something, which prompted Small to begin driving towards the Soda Dam area. See I Tr. at 75:19-76:10 (Small & Braun).

23. Small was the last member of the group to arrive at the site, and, when he arrived, the other officers were parked near the mailboxes at the bottom of the drive. See I Tr. at 76:15-20 (Small); id. at 157:8-11 (Doering).

24. It took Small about thirty minutes to get to the area by the mailboxes where the other officers were gathered. See I Tr. at 97:16-98:8 (Small & Gorence).

25. The area was rural and mountainous. See I Tr. at 18:15-17 (Dupre & Braun).

26. The only easy access to the property was up the dirt drive. See Plaintiffs Exhibit 1, 15; Transcript of Hearing at 4:9-14 (Gorence & ReyXtaken June 17, 2009)(“II Tr.”).

27. The dome-like round structure on the property is a yurt, which is a round and at least semi-permanent building, made of wood and cloth with one room, similar to a cabin but without any utilities, that was erected on a wooden platform. See Plaintiffs Exhibit 12; Defendant’s Exhibit H-I; I Tr. at 89:4-6 (Small); 162:14-17(Doering).

28. From most parts of the highway, the yurt is not visible through the trees. See II Tr. at 12:2-10 (Rey & Gorence); Plaintiffs Exhibit 3, 4.

29. Further up the drive from the mailboxes, a locked chain hung across the road, blocking access. See Plaintiffs Exhibit 1, 15; I Tr. at 158:16-18 (Doering); II Tr. at 4:22-5:11 (Gorence & Rey).

30. There were two No Trespassing signs and a Beware of Dog sign posted near the chain across the road. See Plaintiffs Exhibit 1, 2; I Tr. at 158:17-24 (Doering & Braun); II Tr. at 5:6-11 (Gorence & Rey).

31. Doering, Small, Ross, and Homann discussed the situation, and decided to head up a power-line right of way that ran off the side of the driveway between the drive and Route 4, which appeared to them to be public, to see if they could confirm the presence of marijuana from the right of way. See I Tr. at 158:1-9 (Doering & Braun).

32. The officers, walking single file with Small bringing up the rear, began heading up the drive and turned off the road, pushing through the trees to do so, and began walking under the power lines. See I Tr. at 77:23-78:8 (Small).

33. The officers left the drive to follow the path along the power lines before coming to the cable that blocked access further up the road and before the no-trespassing signs on the posts holding up the cable. See I Tr. at 80:13-81:2 (Small & Braun); id. at 158:13-159:7 (Braun & Doering).

34. To gain access to the path along the power lines, they did not have to pass through any gates, cross any fences, or otherwise bypass some man-made object. See I Tr. at 81:14-18 (Braun & Small); id. at 159:16-18 (Braun & Doering); Plaintiffs Exhibit 4,15.

35. Doering assumed, because of the no-trespassing signs, that they were near private property. See I Tr. at 183:11-13 (Gorence & Doering).

36. Beyond the trees, the area around and under the power lines was relatively open, with the foliage largely cut away, creating a path of sorts, although there was still debris and moderately thick foliage on the ground. See Plaintiffs Exhibit 14; I Tr. at 78:14-21 (Small); id. at 159:9-15 (Doering).

37. Occasionally, the officers would have to zigzag around thick foliage or trees, and could not follow directly under the power lines at all times. See I Tr. at 87:3-6 (Small); id. at 159:20-23 (Doering).

38. Near the second power-line pole the officers walked by, the view opened up some and they could see the yurt. See I Tr. at 79:20-80:7 (Small & Braun).

39. Standing under the power lines, Small and Doering were able to see marijuana plants around a small tent, growing either in buckets or in plastic bags apparently full of soil. See I Tr. at 82:24-83:14, 83:23-84:2 (Braun & Small); 160:2-4 (Doering); Plaintiffs Exhibit 7.

40. The distance from the easement to the tent was approximately twenty-five to thirty feet. See II Tr. at 19:17-20:1 (Gorence & Rey).

41. The distance from the tent to the yurt was approximately seventy feet. See Plaintiffs Exhibit 6,16.

42. Most of the plants around the tent were small, unusually small for marijuana in August Small thought, but there were a couple of larger plants as well. See I Tr. at 83:8-11 (Small).

43. Based upon his training and experience, Doering believed that the plants around the tent were marijuana. See I Tr. at 160:19-21 (Braun & Doering).

44. Concerned by the tent, which had grills and shelves nearby, the officers decided to clear the tent, announced themselves as police and unzipped the tent, but no one was inside. See I Tr. at 87:21-23, 88:9-19 (Small & Braun).

45. Though concerned about their safety, the officers did not leave to get a search warrant at that time, because they thought there may be someone armed on the property out of view and because they did not know if there was a back road to the property which someone could use to enter the property and take away the evidence. See I Tr. at 89:10-13 (Braun & Small); id. at 161:7-16 (Braun & Doering).

46. The officers decided to perform a security sweep of the property. See I Tr. at 89:7-92:17 (Braun & Small); id. at 162:3-165:3 (Braun & Doering).

47. Between the yurt and the power lines is a largely open area, interspersed with, and surrounded by, trees. See Plaintiffs Exhibit 13,16.

48. In the open area were indications, such as a fire pit, that the area was being used. See II Tr. at 15:5-10(Rey); Plaintiffs Exhibit 16.

49. The open area sits over a hundred feet up the mountain from the highway. See Plaintiffs Exhibit 13,17.

50. Doering and the other officers looked under the yurt and then forced open the locked door of the yurt using a pry bar. See I Tr. at 162:22-163:18 (Braun & Doering).

51. The officers searched for persons who could harm them, not evidence, but did not find any people or seize any evidence. See I Tr. at 163:19-24 (Braun & Doering).

52. Small walked up to the yurt and, peering through the windows, saw a bed, a drum set, a Coleman stove, and other signs of habitation. See I Tr. at 90:7-24 (Small).

53. Because someone could be hiding behind various items in the yurt, Small decided to enter and search the yurt. See I Tr. at 90:15-91:1 (Braun & Small).

54. The yurt had screen doors that were unlocked and then double doors on the inside that were locked. See I Tr. at 107:19-108:7 (Gorence & Small).

55. To get inside the yurt, officers had to force the doors open. See I Tr. at 108:8-20 (Gorence & Small).

56. Small was not looking for evidence when he searched the yurt, and he did not see anyone in the yurt or seize anything from it. See I Tr. at 91:2-7 (Braun & Small)

57. Small then walked towards the back of the property, observing more marijuana plants along the way, until he reached a ravine, did not see any more marijuana, and concluded that there was no back way in. See I Tr. at 91:10— 25(Braun & Small).

58. After completing the sweep, sometime before noon, Small and the other officers walked to the bottom of the drive, and waited there to prevent anyone from entering and destroying evidence until a search warrant arrived. See I Tr. at 92:18-20, 93:9-10, 94:3-7 (Braun & Small).

59. After the sweep, Doering asked Ross to go to the local Forest Service office in Jemez Springs. See I Tr. at 184:9-12 (Gorence & Doering).

60. A fire-management officer from the Forest Service arrived with a map of the area, from which the officers determined that the property they had searched was private property. See I Tr. at 185:1-7 (Gorence & Doering).

61. The officers decided to have Doering seek a search warrant because he had a Sandoval County commission card. See I Tr. at 166:7-18 (Braun & Doering).

62. The commission cards were given to officers outside Sandoval County, indicating that those officers were authorized to act in Sandoval County under a memorandum of understanding. See I Tr. at 21:21-23:8 (Dupre & Braun); 150:20-25 (Doering).

63. Doering went to somewhere south of Jemez Springs, where he was able to get cell coverage so that he could call Dupre, who told Doering he would meet him at Rio Rancho police headquarters to help draft the warrant affidavit. See I Tr. at 166:25-67:4 (Doering).

64. With Dupre’s assistance, Doering drafted the affidavit. See I Tr. at 167:9-10, 167:22-25 (Braun & Doering); Exhibit A to Hearing, Affidavit for Search Warrant.

65. The affidavit reads:

Affiant is employed as a police officer with the Rio Rancho Department of Public Safety, currently assigned to the Investigations Division. Affiant has eight years of law enforcement experience. Including four years of criminal investigations and eighteen months of narcotics investigation experience. Affiant has investigated numerous marijuana related cases including several growing operations.

I, Detective Karl P. Doering being dully [sic] sworn, on my oath, state that I have reason to believe that on the following described premises, on the person described above:

The property/premises to be searched is located north of Jemez Springs, New Mexico on the west side of New Mexico Highway Four in Sandoval County, approximately 1.4 miles north of the Jemez Springs Village limit. The property is a rural plot with a dirt access road from Highway Four. The intersection of the access road & Highway Four is located at datum point N 35 degrees 48.285 minutes/W 106 degrees 40.842 minutes, this location was obtained by the use [of] a GPS device. According to the National Forest Service Fire Management Officer for the Santa Fe National Forest Juarez Ranger District, this area is located on private property. There is no physical address on the property and the owner of the property is unknown. Also to be searched is the surrounding area, since I know through training and experience that drug dealers often hide their drugs by burying them or otherwise concealing them in and on the area surrounding their area of operation. I will be present during the execution of the search warrant and will direct members of the Rio Grande Middle Valley Narcotics Task Force.

IN THE STATE OF NEW MEXICO, COUNTY OF SANDOVAL THERE IS NOW BEING CONCEALED CERTAIN PROPERTY, NAMELY:

Marijuana and any other controlled substances enumerated in the New Mexico State Statutes as being a controlled substance. Any and all documents tending to show dominion and control over the above described location. Any and all documents, including, but not limited to, financial statements, receipts, ledgers, or other notes tending to show the laundering of money. Any and all photographs or films depicting places or persons possessing, negotiating, selling, purchasing, manufacturing, or distributing in marijuana or any controlled substance. Any communication devices used in the selling of controlled substance, including, but not limited to, cellular phones, pages, two way radios, computers and scanners. It is Affiant’s experience and training that drug traffickers will often trade drugs for stolen property or ill begotten property. Any U.S. Currency or other fruits of the crime directly associated in the trafficking of controlled substances. Also to be seized are any and all firearms, ammunition, and explosive devices. Drug traffickers to protect drugs and drug money commonly use these devices. Surveillance equipment; including, but not limited to cameras, binoculars, recording devices, scanners and night vision used in the counter-surveillance of law enforcement.

The facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

On Tuesday, August 29, 2006, Officer Kevin Dupre, Rio Rancho Police Officer assigned to the Middle Rio Grande Valley Narcotics Task Force was conducting aerial operations for marijuana eradication. Officer Dupre is a certified spotter and observed growing marijuana under power lines parallel to Highway four in Jemez, NM. Officer Dupre observed numerous plants in pots. The plants had a unique color indicative of growing marijuana, which stands out from other vegetation in the area, based on his training and experience.

Office Dupre contacted Affiant, who was acting as ground support for the operation and directed him to the location of the suspected marijuana. Affiant and other Officers/Agents, approached the location along the power line right of way. Affiant observed numerous plants consistent with marijuana in his training and experience in plain view. Also located on the property was irrigation equipment, a tent, and a temporary structure described as a “yurt.”

Affiant and other Officers entered the property to perform a security sweep and found no person(s) on the property.

SUBSCRIBED AND SWORN BEFORE ME IN THE ABOVE NAMED COUNTY OF THE STATE OF NEW MEXICO.

Both the Honorable George Eichwald, New Mexico District Judge, and Dupre signed the affidavit below this last sentence, and the affidavit was dated August 29, 2006, at 4:30 p.m. See Affidavit at 2-3 (formatting in original).

66. Doering believed that all the information contained in the affidavit to be accurate. See I Tr. at 168:1-3 (Braun & Doering).

67. Doering and Dupre began contacting judges’ offices and found out that Judge Eichwald would be available, but was leaving the office at 4:00 p.m. See I Tr. at 164:15-20 (Doering).

68. Meanwhile, Scott Harris, the coordinator of the Region One Narcotics Task Force, had called Sandoval County Under-sheriff Tim Lucero to inform him of the search warrant that the officers were planning to obtain. See I Tr. at 128:12-17 (Gorence & Lucero).

69. The telephone call from Harris was the first Lucero had heard about the operation. See I Tr. at 128:23-129:2 (Gorence & Lucero).

70. In response to Harris’ request for assistance, Lucero told Harris that he would have one of his deputy sheriffs, Ventura Salas, meet with Doering to corroborate the information and help Doering with writing a warrant if there was sufficient probable cause. See I Tr. at 129:12-130:3 (Lucero & Gorence).

71. Harris called Doering and told Doering that Lucero had told him that Doering did not have a valid Sandoval County commission. See I Tr. at 169:2-1 (Doering & Braun).

72. Harris asked Doering to contact Lucero to clarify the situation. See I Tr. at 169:10-13 (Doering).

73. Since 2003, when John Paul Trujillo became Sheriff of Sandoval County, Trujillo’s office had a policy of providing commissions, authorized by state law, to law-enforcement officers of other agencies to give them authority to act within Sandoval County. See I Tr. at 122:18-25 (Lucero).

74. As part of granting the commissions, the Sandoval County Sheriffs Department was to be notified beforehand about any agency conducting law-enforcement operations pursuant to their county commissions. See I Tr. at 127:3-10 (Lucero).

75. Assuming proper notice was given, under normal circumstances an officer with a commission could obtain a search warrant in Sandoval County on his or her own. See I Tr. at 140:11-16 (Braun & Lucero).

76. Lucero and Doering spoke over the telephone, and Lucero told Doering that Doering did not have a valid commission for Sandoval County. See I Tr. at 169:20-21 (Doering).

77. Doering had his commission card on him, and he told Lucero that his commission card was valid. See I Tr. at 169:21-24 (Doering).

78. Lucero advised Doering that the commission was limited to DWI issues, but Doering disagreed and argued that it was a full commission, at which point Lucero told Doering he could consider the commission revoked because Doering’s chief had not responded to a letter Sheriff Trujillo sent out about commission cards. See I Tr. at 169:24-170:7 (Doering).

79. Lucero told Doering that he would have to have Detective Chico Salas be the affiant on the warrant. See I Tr. at 170:11-14 (Doering).

80. Doering told Lucero that he did not think that having Salas be the affiant was appropriate, but that he would be willing to meet with Lucero and Salas on the way to Judge Eichwald’s office, which was in the same building as their offices. See I Tr. at 170:14-20 (Doering).

81. After Doering told Lucero that his commission was valid and that the officers would proceed with the warrant, Lucero told him they could, but the sheriffs department would not help. See I Tr. at 131:8-15 (Lucero).

82. Lucero then spoke with Trujillo, who advised Lucero that, if Doering was not going to corroborate the warrant with the sheriffs department, then Doering’s commission was revoked. See I Tr. at 132:17-133:4 (Lucero).

83. Lucero called Doering back, telling him that if Doering did not corroborate the information, then Doering’s commissions would be revoked. See I Tr. at 133:1-4 (Lucero), id. at 143:13-144:6 (Lucero & Braun).

84. At the judicial complex, Doering spoke with Salas, but Salas told him that he did not wish to be involved in the case. See I Tr. at 170:22-171:1 (Doering).

85. It was almost 4:00 p.m. and the officers back at the property were waiting for a warrant, so Doering decided to pursue the warrant himself. See I Tr. at 171:5-9 (Doering).

86. Judge Eichwald did not ask Doering about his authority to obtain or to execute the search warrant, and Doering did not volunteer any information about the dispute with Lucero. See I Tr. at 172:1-7 (Braun & Doering).

87. Doering has never informed a judge about his authority to obtain or to execute a warrant, and has never had a judge ask about whether he had such authority. See I Tr. at 172:16-20 (Braun & Doering).

88. Doering did not tell Judge Eichwald that the officers had forced entry into the yurt. See I Tr. at 219:10-220:2 (Gorence & Doering).

89. Judge Eichwald issued a search warrant for the property. See I Tr. at 172:21-23 (Braun & Doering); Search Warrant.

90. Judge Eichwald was a Sandoval County judge. See I Tr. at 171:12-14 (Braun & Doering).

91. Upon leaving the judicial complex, Doering encountered Lieutenant Morrison from the Sandoval County Sheriffs Department, who asked where the property was located, and said he would be happy to assist in the search, and said he was sending several deputies out to help. See I Tr. at 172:23-173:6 (Doering).

92. When Doering returned to the property, Harris had arrived, the two of them reviewed the warrant, and Doering explained about the dispute with Lucero. See I Tr. at 173:14-17 (Doering).

93. Doering and Harris decided to execute the warrant and proceeded to cut away the cable across the drive with bolt cutters. See I Tr. at 173:17-24 (Doering & Braun).

94. None of the marijuana plants had been seized during the time between the sweep and the execution of the warrant. See I Tr. at 173:24-174:2 (Braun & Doering).

95. The officers seized numerous marijuana plants while executing the search warrant. See I Tr. at 174:5-10 (Doering).

96. Rey is the owner of the property on which the officers found the marijuana plants. See II Tr. at 3:11-19 (Gorence & Rey).

97. The only other access to the yard is to climb steep, unimproved, forested terrain, and one who did so would not be able to see the property from the bottom of the mountain at the roadway. See II Tr. at 33:7-34:6 (Braun & Rey).

98. Rey considered the property secluded and private, and he posted no-trespassing signs and secured the dirt drive with a locked chain to maintain the property’s privacy. See II Tr. at 4:22-5:11 (Gorence & Rey).

99. At some time before the search, Rey also posted a no trespassing sign further down the road from the chain. See II Tr. at 5-6.

100. That no-trespassing sign is no longer on the property and was not on the property at the time of the search. See I Tr. at 81:14-18 (Braun & Small); id. at 159:16-18 (Braun & Doering); Plaintiffs Exhibit 4,15.

101. Rey considered a fence for the property unnecessary because of the steep elevation and thick brush that acted as a natural barrier around the property. See II Tr. at 7:17-8:5 (Gorence & Rey).

102. Rey used his yurt for sleeping, cooking, reading, writing, playing music, and other activities when he was on the property. See II Tr. at 12:11-13:12 (Gorence & Rey); Defendant’s Exhibit J.

103. Rey used the open area outside the yurt for activities such as barbeques, sleeping under the stars, quiet contemplation, having friends camp, playing music. See II Tr. at 14:3-24 (Gorence & Rey).

PROCEDURAL BACKGROUND

Rey moves the Court, pursuant to the Fourth Amendment to the United States Constitution and to rule 12(b)(3) of the Federal Rules of Criminal Procedure, to suppress evidence of alleged marijuana discovered on August 29, 2006 on Rey’s Sandoval County property. In his prehearing briefing, Rey argues that the officers conducted. an illegal search of his property and seized alleged marijuana plants before obtaining a search warrant, and that the later search under a warrant does not cure the illegality of the initial search. See Motion at 4-9. He also contends that the affidavit supporting the warrant application omitted material information about the Rio Rancho officers’ authority to operate in Sandoval County, in violation of the rule in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Motion at 9-10. Finally, he asserts that the United States cannot rely on the independent-source exception to the fruit of the poisonous tree doctrine. See id. at 10-14.

In its written response, the United States first argues that the officers had probable cause before ever intruding upon any area in which Rey had a reasonable expectation of privacy because Dupre’s aerial surveillance revealed marijuana and the officers’ later walk along the power-line easement confirmed this observation. See United States’ Response to Defendant’s Motion to Suppress Evidence at 3-4, filed April 24, 2009 (Doc. 117)(“Re-sponse”). Next, the United States contends that exigent circumstances justified the pre-warrant security sweep of the property. See id. at 4-9. The United States then contends that, even if the sweep or approach along the easement was in violation of the Fourth Amendment, the independent-source doctrine applies because of the later search warrant. See Response at 9-10. This warrant, the United States contends, was valid and, even if it was not valid, the evidence seized on Rey’s property should not be suppressed under the good-faith exception from United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See Response at 10-14.

In reply, Rey argues that the officers’ passage along the power-line easement was an illegal search. See Reply Brief to the United States’ Response to Defendant’s Motion to Suppress Evidence at 1-4, filed May 12, 2009 (Doc. 120). Rey also reiterates his contention that the officers’ status to act in Sandoval County was material information that should have been conveyed to Judge Eichwald. See id. at 4-5. The United States has also filed a surreply, which argues that the officers’ use of the power-line easement did not violate the Fourth Amendment. See United States’ Surreply Re: Defendant’s Motion to Suppress Evidence at 1-5, filed June 3, 2009 (Doc. 124).

After the Court concluded the evidentiary hearing on the motion to suppress, the parties presented oral argument to the Court. To begin, Robert Gorence, Rey’s counsel, argued that, while the aerial observation may have given rise to reasonable suspicion, it was not by itself enough for probable cause, as the officers’ own actions in seeking confirmation demonstrated. See II Tr. at 51:1-14 (Court & Gorence). In response to the Court’s question about how Rey could prevail if the helicopter view provided probable cause, Mr. Gorence contended that, regardless of the existence of probable cause, the officers’ warrantless entry onto the easement was unlawful. See id. at 55:18-56:12. Mr. Gorence argued that use of the easement was limited to officials of the power company and did not create a general public right of way. See id. at 57:8-18 (Gorence).

The Court also questioned whether it made sense to talk about curtilage in a forest. Mr. Gorence maintained that the presence of the yurt, a residence, made the law of curtilage applicable to the situation. See id. at 62:5-68:6 (Gorenee). Mr. Gorence contended that there were inconsistencies in the testimony regarding the timing of the helicopter’s departure and Small’s arrival. Mr. Gorenee argued that the officers had already entered the property once before Small arrived. See id. at 69:3-71:16. Mr. Gorenee also contended that the protected sweep was illegally conducted without any exigent circumstances and that there was therefore independent grounds to suppress the evidence. See id. at 72:17-73:8.

James Braun, the Assistant United States Attorney, argued that Dupre’s aerial observation established probable cause, but that the officers did not immediately get a warrant because they wanted to learn more about the property. See id. at 75:14-76:3 (Court & Braun). Mr. Braun further argued that a warrant was likely not even necessary for the search here, because the yurt was not a residence and the surrounding property was not curtilage but wilderness subject to the open-fields doctrine. See id. at 77:9-20. Mr. Braun contended that the Dunn factors supported the property not being curtilage, and that Rey’s references to property law and trespass were inapposite in the Fourth Amendment context. See id. at 78:8-81:9 (Braun & Court). Mr. Braun argued that the exigent circumstances justified the protective sweep because of the possibility of the destruction of evidence or harm to the officers watching over the property while waiting for a warrant. See id. at 82:11-84:12 (Court & Braun). He maintained that, alternatively, the independent-source doctrine would apply even if the sweep was unlawful, because the officers had sufficient probable cause based upon the helicopter observations. See id. at 84:22-85:1 (Braun).

Jason Bowles, co-counsel for Rey, argued that Dupre had an invalid commission, and that his observations could not support a search warrant because they were undertaken without jurisdiction. See id. at 85:6-86:15 (Bowles). In addition, Bowles argued that a problem with the commission should have been disclosed to Judge Eichwald. See id. at 88:1-18. Mr. Braun countered that Judge Eichwald had jurisdiction to issue that warrant, that the executing officer’s jurisdiction was irrelevant, that the dispute over Dupre’s status did not go to probable cause, and that the executing officer’s jurisdiction was thus irrelevant information that need not have been disclosed to Judge Eichwald. See II Tr. at 94:2-16 (Braun).

RELEVANT FOURTH AMENDMENT LAW

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. It also commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. Evidence obtained in violation of the Fourth Amendment may be suppressed, but “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, — U.S. —, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009). Thus, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” but “when police mistakes are the result of negligence ..., rather than systemie error or reckless disregard of constitutional requirements,” suppression is not automatic and “any marginal deterrence” from suppression is often insufficient. Id. at 702, 704.

1. The Independent-Source Doctrine.

The exclusionary rule prohibits the introduction of evidence, both tangible and testimonial, that is seized or acquired during an unlawful search. See Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). “Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct.” United States v. Hatfield, 333 F.3d 1189, 1193-94 (10th Cir.2003) (citing Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). If police “conduct[ ] unconstitutional searches that acquire! ] information used to obtain [a] search warrant,” then “evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree.” Id. at 1194.

When determining whether evidence is fruit of the poisonous tree, a court is to consider whether the evidence was “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Segura v. United States, 468 U.S. 796, 804-805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (internal quotations omitted)(alteration in original). Under the independent-source doctrine, evidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree. See Segura v. United States, 468 U.S. at 799, 104 S.Ct. 3380 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Evidence therefore need not be excluded under the fruits-of-the-poisonous-tree doctrine if there is an independent source for discovery of the challenged evidence. See id. at 805, 104 S.Ct. 3380. Two Supreme Court cases have considered the operation of the independent-source doctrine in situations where a search warrant is obtained subsequent to an unlawful search.

In Segura v. United States, police unlawfully entered an apartment and spotted drug-trafficking paraphernalia in plain view. See 468 U.S. at 801, 104 S.Ct. 3380. A warrant was later obtained, based upon information that the police had known before the entry, and executed at the apartment. In the meantime, police stayed in the apartment to preserve the scene. Pursuant to the warrant, they later seized the paraphernalia, as well as cocaine, cash, ammunition, and records of drug transactions, none of which had been observed during the unlawful search. See id. Before the Supreme Court was the question whether the evidence that was not in plain view during the unlawful entry should be suppressed. See id. at 802 n. 4, 104 S.Ct. 3380.

The Supreme Court held that, because the warrant was based on information obtained before the search, the evidence seized was from an independent source and was not fruit of the poisonous tree. See id. at 813-14, 104 S.Ct. 3380. Thus, whether the entry and occupation of the apartment was unlawful was “irrelevant to the admissibility of the challenged evidence” because of the independent source. Id. at 813, 104 S.Ct. 3380. Finding any connection between the unlawful entry and the seizure under the warrant to be sufficiently attenuated, the Supreme Court rejected the argument that the police occupation led to the seizure because the evidence might otherwise have been destroyed. See id. at 815-16, 104 S.Ct. 3380.

Segura v. United States was limited to situations where the challenged evidence was not in plain view during an unlawful search. Murray v. United States addressed this question that Segura v. United States left open: whether the independent-source doctrine was available for evidence observed in plain view during an unlawful search. The Supreme Court held that the doctrine also applied to evidence in plain view.

Murray v. United States dealt with a situation in which federal law enforcement obtained a warrant for a warehouse after illegally forcing entry to that warehouse. Based upon tips from informants, federal agents began surveillance of several defendants. See id. at 535, 108 S.Ct. 2529. Agents observed two of the defendants entering and then leaving a warehouse, one driving a camper and the other driving a truck. See id. When the defendants left the warehouse, the agents saw two individuals and a tractor-trailer rig with a long container inside. See id. The camper and truck were driven by several other drivers and ultimately the vehicles were lawfully stopped and found to contain marijuana. See id. After hearing of the marijuana in the vehicles, agents entered the warehouse and saw numerous burlap-wrapped bales in plain view. See id. The agents left and did not reenter the warehouse until later. They obtained a warrant, without mentioning the entry or relying upon any observations from that entry, and seized the bales, which contained marijuana. See id.

The Supreme Court stated that “reseizure of tangible evidence already seized” could be allowed in the right circumstances. Id. at 542, 108 S.Ct. 2529. “So long as a later, lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply.” Id. A source for a warrant would not be genuinely independent “if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” Id. (footnote omitted). Although the district court had made factual findings that the unlawful entry was not revealed to the magistrate and that the agents did not rely on any observations from the entry in applying for a warrant, the record contained no findings on whether the agents would have sought a warrant absent the entry and so the Supreme Court ultimately remanded for a determination in the district court regarding the independent-source doctrine’s applicability. See id. at 543-44, 108 S.Ct. 2529.

“A source is genuinely independent if the government can show that the evidence was obtained by means sufficiently distinguishable to be purged of the primary taint.” United States v. Forbes, 528 F.3d 1273, 1278 (10th Cir.2008) (internal quotations omitted). “By contrast, a source is not independent if, granting establishment of the primary illegality, [the evidence has] been come at by the exploitation of the illegality.” Id. (internal quotations omitted, change in original). To be an independent source, the source does not need to be temporally distinct from an unlawful search. “It [i]s of no moment that [an illegal search and a lawful independent source] all occurred as part of one brief, uninterrupted sequence of events. Rather, it [i]s enough that a genuinely independent source of the evidence” justify a search. Id. at 1279.

In support of this principle, the Tenth Circuit approvingly discussed United States v. Moore, 329 F.3d 399 (5th Cir. 2003). In that case, police allegedly unlawfully arrested a motorist and then conducted a canine search of the vehicle’s exterior, leading to the discovery of drugs in the trunk. See United States v. Forbes, 528 F.3d at 1279 (discussing United States v. Moore, 329 F.3d at 404-05). Despite the closeness of the events, the United States Court of Appeals for the Fifth Circuit held that the canine search, which was legal in the circumstances regardless of the legality of the arrest, was an independent source and thus the drugs found in the trunk were not subject to suppression. See United States v. Forbes, 528 F.3d at 1279 (discussing United States v. Moore, 329 F.3d at 404-05). Following United States v. Moore, the Tenth Circuit held that, although officers may have unlawfully searched the trailer of a tractor-trailer rig, a near-simultaneous lawful canine search that revealed drugs in the cab of the rig was an independent source. See United States v. Forbes, 528 F.3d at 1280.

2. Curtilage.

“[T]he warrantless entry of the home is ‘the chief evil against which ... the Fourth Amendment is directed.’ ” United States v. Lowe, 999 F.2d 448, 451 (10th Cir.1993) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). This protection against warrantless searches extends to a home’s curtilage. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Curtilage “is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life, and therefore has been considered part of [the] home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. at 180, 104 S.Ct. 1735 (internal quotation marks and citation omitted).

Areas that are not within the curtilage are considered “open field,” and searches therein are not subject to the Fourth Amendment’s reasonableness requirement. United States v. Hatfield, 333 F.3d 1189, 1195-96 (10th Cir.2003). In other words, for Fourth Amendment purposes, no “search occurs if a police officer makes observations while in a public place or open field,” even if the areas the officer views from that vantage point “lie within an area protected by the Fourth Amendment.” Reeves v. Churchich, 484 F.3d 1244, 1254 (10th Cir.2007). The open-fields doctrine “may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” Oliver v. United States, 466 U.S. at 178, 104 S.Ct. 1735. Open fields include “any unoccupied or undeveloped area outside of the curtilage,” and “need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” Id. at 180 n. 11, 104 S.Ct. 1735. Thus, “a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” Id.

Whereas open fields are areas that “do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance,” Oliver v. United States, 466 U.S. at 179, 104 S.Ct. 1735, “the curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life,” id. at 180, 104 S.Ct. 1735. A two-step process is used to determine if an area is within the curtilage. See United States v. Hatfield, 333 F.3d at 1195. First, the court must determine if the property owner has exhibited a subjective expectation of privacy in the area searched. See id. If so, the court then looks to whether that expectation of privacy is one that society is prepared to recognize as reasonable. See id. In determining whether a given area is part of a home’s curtilage, courts consider four factors:

(1) the proximity of the area to the home;

(2) whether the area is included within an enclosure surrounding the home;

(3) the nature of the uses to which the area is put, specifically, whether the area is used for the intimate activities of the home; and

(4) the steps taken by the resident to protect the area from observation.

Reeves v. Churchich, 484 F.3d at 1254-55 (citing United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). Courts are not to apply these factors mechanically, but rather treat them as “useful analytical tools” to aid the determination “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” United States v. Dunn, 480 U.S. at 301, 107 S.Ct. 1134. In effect, the curtilage encompasses those private areas outside the home that come under Fourth Amendment protection, while open fields are those areas outside the home not under Fourth Amendment protection.

In United States v. Hatfield, without explicitly applying the four factors delineated in United States v. Dunn, the United States Court of Appeals for the Tenth Circuit determined that a defendant’s backyard where officers observed growing marijuana was within the curtilage. See United States v. Hatfield, 333 F.3d at 1196. The marijuana “was in a well-defined yard” that was “standing close to the back of the house.” Id. The area where the marijuana was could not be seen from the street. See id. Ultimately, the Tenth Circuit found that the yard was “ ‘so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.’ ” Id. (quoting United States v. Dunn, 480 U.S. at 301, 107 S.Ct. 1134).

In United States v. Cousins, 455 F.3d 1116, (10th Cir.2006), the Tenth Circuit affirmed a district court’s determination that a house’s sideyard was outside the curtilage. The Tenth Circuit noted that the sideyard was close to the house, enclosed on three sides, contained a melon garden, and was partially shielded from public view, all of which provided support to finding the sideyard to be curtilage. See id. at 1122-24. On the other hand, there was a paved walkway leading up to the yard through the unenclosed side, an electric meter in the yard, and the defendants knew that a meter reader visited the sideyard. See id. The Tenth Circuit found that these factors were sufficient for it to conclude that the sideyard was not within the house’s curtilage. See id. at 1124.

In Reeves v. Churchish, the Tenth Circuit held that the front yard of a duplex was not curtilage and was therefore open field, where the yard was in close proximity to the home, but no evidence existed that the yard was enclosed, was used for intimate activities of the home, or was in anyway protected from observation. See 484 F.3d at 1254-55. While curtilage cases have generally focused on urban areas or man-made enclosures, courts have held that natural enclosures such as pine trees satisfy the second Dunn factor. In Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir.2006), the United States Court of Appeals for the Sixth Circuit determined that it was not clear whether a yard was enclosed, because there was no fence around the property, but observed that there was “a line of pine trees along the back of the property and the sides of the property.” Id. at 652. Ultimately, the Sixth Circuit found that the mix of factors, which included the back deck specifically at issue being near to the home, a number of signs that the area was used for domestic life, and the deck being at least partially shielded from view indicated that a back deck was curtilage. See id. at 652-53. As United States v. Romano, 388 F.Supp. 101 (E.D.Pa.1975), has noted: “The word curtilage is derived from the Latin cohors (a place enclosed around a yard)----[Usually it is enclosed some way by fence or shrubs.” Id. at 105 n. 4 (emphasis added).

3. Protective Sweeps and Exigent Circumstances.

One exception to the requirement that officers must have a warrant to search a person’s home or its curtilage is the exception for protective sweeps. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), held that officers could, as a search incident to arrest, search the area in a house around an arrestee, but could not range far beyond “the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Id. at 768, 89 S.Ct. 2034. The Supreme Court expanded this principle in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), which held that a “search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Id. at 1049, 103 S.Ct. 3469 (internal quotation marks omitted). And in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court recognized protective sweeps as an exception to the warrant requirement. The Supreme Court defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id. at 327, 110 S.Ct. 1093. The Supreme Court held that such sweeps were constitutional if the officer “ ‘possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]’ the officer in believing that the area swept harbored an individual posing a danger to the officer or others.’ ” Id. (quoting Michigan v. Long, 463 U.S. at 1049, 103 S.Ct. 3469) (alterations in Maryland v. Buie, citations and further quotation marks omitted).

The Tenth Circuit “has interpreted Buie to mean that a protective sweep may be conducted only if incident to arrest.” United States v. Freeman, 479 F.3d 743, 750 (10th Cir.2007) (citing United States v. Walker, 474 F.3d 1249, 1254 (10th Cir. 2007), and United States v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir.2002)). Acknowledging that other circuits have taken a different approach, the Tenth Circuit nonetheless stated that it was bound by the precedent from United States v. Davis. See United States v. Freeman, 479 F.3d at 750. Since United States v. Freeman was decided, the Tenth Circuit has not overruled United States v. Davis and continues to note that the Tenth Circuit follows the minority rule, which requires that a protective sweep be conducted incident to arrest. See United States v. Jimenez, 336 Fed.Appx. 798, 802-03 (10th Cir.2009).

Related to the protective sweep is the doctrine of exigent circumstances. A warrantless search is not unconstitutional if the search was conducted under exigent circumstances. “Exigent circumstances may justify a search where ‘(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of ... others, and (2) the manner and scope of the search is reasonable.’ ” United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir.2008) (quoting United States v. Najar, 451 F.3d 710, 718 (10th Cir.2006)) (omission in United States v. Gambino-Zavala). Those cases upholding sweeps conducted under the exigent-circumstances doctrine have “involved Fourth Amendment intrusions justified by a threat to a civilian’s safety.” United States v. Walker, 474 F.3d 1249, 1254 (10th Cir.2007). Accordingly, “absent clarification from an en banc court,” the Tenth Circuit has refrained from justifying a “sweep by applying the exigent-circumstances exception based on officer safety.” Id.

Earlier cases from the Tenth Circuit have defined exigent circumstances as arising when

(1) the law enforcement officers ... have reasonable grounds to believe that there is immediate need to protect their lives or others or their property or that of others, (2) the search [is not] motivated by an intent to arrest and seize evidence, and (3) there [is] some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched.

United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir.1992) (quoting United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986)). Imminent destruction of evidence may also provide exigent circumstances.

An exception to the warrant requirement that allows police fearing the destruction of evidence to enter the home of an unknown suspect should be (1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of the evidence is likely, (3) limited in scope to the minimum intrusion necessary to prevent the destruction of evidence, and (4) supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse.

United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir.1988).

4. Falsehoods or Omissions in a Warrant Affidavit.

Defendants have a limited right to challenge in their criminal proceedings the truthfulness of statements made in an affidavit supporting an ex parte application for a search warrant. See Franks v. Delaware, 438 U.S. at 155-56, 98 S.Ct. 2674. As the Supreme Court has stated:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks v. Delaware, 438 U.S. at 155-56, 98 S.Ct. 2674. Franks v. Delaware’s standards apply to material omissions as well as to affirmative falsehoods. See United States v. Avery, 295 F.3d 1158, 1166 (10th Cir.2002) (citing United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000)).

“If, however, the district court concludes that the omitted information would not have altered the magistrate judge’s decision to authorize the search, then the fruits of the challenged search need not be suppressed.” United States v. Avery, 295 F.3d at 1167. “In a case where the defendant alleges information was intentionally omitted from an affidavit, the existence of probable cause is determined by examining the affidavit as if the omitted information had been included and determining whether the affidavit would still give rise to probable cause.” United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001). Thus, the Tenth Circuit has held that, even if an officer “intentionally withheld information that the media would be present during the execution of the warrant,” and did not tell the issuing magistrate judge that officers were “planning a high-risk execution of the warrant at a time when there would be minor children in the home,” there was no material omission because such facts about the method of executing the warrant were not relevant to probable cause. Id.

5. Authority to Execute a Search Warrant.

In United States v. Green, 178 F.3d 1099 (10th Cir.1999), the Tenth Circuit confronted the intersection of Fourth Amendment law and state law regarding police jurisdiction. It was undisputed that the officers executing the warrant were acting outside their jurisdiction under Kansas law. See id. at 1105. The Tenth Circuit observed that it was

“well established in this circuit that ‘in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers.’ ” United States v. Le, 173 F.3d 1258, 1264 (10th Cir.1999) (quoting United States v. Miller, 452 F.2d 731, 733 (10th Cir.1971)). This is because “ ‘the exclusionary rule is only concerned with deterring [federal] Constitutional violations.’ ” Id. (quoting United States v. Wright, 16 F.3d 1429, 1437 (6th Cir.1994)). Thus, “the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended.” Id. (citation omitted).

United States v. Green, 178 F.3d at 1105.

Attempting to distinguish Tenth Circuit precedent, the defendant in United States v. Green argued that, when state officers co