PER CURIAM.
A majority of the en banc court (Judge Ferguson, joined by Chief Judge Schroeder and Judges Pregerson, Tashima, Paez and Berzon) concludes that the officers did not have probable cause to enter Johnson's property, and were not in hot pursuit when they searched the area outside the mushroom shed. That same majority also concludes that whether the search took place within the curtilage is a question that must be determined in the first instance by the district court.
A different majority (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman, Gould and Paez) concludes that, under Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the determination of the curtilage must be reviewed de novo on appeal. Of those, five judges (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman and Gould) conclude that the search took place outside the curtilage.
On the probable cause issue, the decision of the district court is REVERSED. On the curtilage issue, we REMAND to the district court for a determination of whether the search lay within the curtilage and any other issues necessary to the disposition of this case. The panel retains jurisdiction over the case in the event of any further appeals.
FERGUSON, Circuit Judge, with whom Chief Judge SCHROEDER and Circuit Judge PREGERSON join; Circuit Judge TASHIMA joins with respect to all of the opinion except Part III.B a, b, c, and d; Circuit Judge PAEZ joins with respect to all of the opinion except Part III.A; and Circuit Judge BERZON joins with respect to all of the opinion except for Part III.B and the final two sentences of Part III.A:
I.
In an attempt to apprehend another person who was a misdemeanor suspect last seen 30 minutes previously and whose whereabouts were unknown, state sheriff officers broke into Michael Johnson's fenced and locked residential yard on his rural Washington property without a warrant. While searching his yard, officers smelled marijuana in a detached shed. As a result of this warrantless search, a search warrant was issued and Johnson was subsequently indicted on one count of manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Prior to entering a conditional plea of guilty, Johnson filed a motion to suppress the evidence gained as result of the search.
The district court denied Johnson's motion, determining that the search was justified under the hot pursuit and exigent circumstances exceptions to the warrant requirement of the Fourth Amendment. In affirming the district court, the three-judge panel of this Court assumed that the shed was not in an open field but was part of the curtilage. United States v. Johnson, 207 F.3d 538, 543-44 (9th Cir. 2000). However, the district court did not make any finding or conclusions page regarding the open field-curtilage question.
We therefore:
1. REMAND the case to the district court for factual findings and conclusions on whether the shed was in an open field or part of the curtilage, a matter not developed by the district court.
2. REVERSE the district court on the issue of the warrant requirement, a question that was fully developed in the district court and by the three-judge panel.
II.
In February 1998, Washington State Child Protective Service ("CPS") asked Deputy Chris Kading of the Skagit County Sheriff's Office to check on the welfare of the children living in Steven Dustin Smith's residence in rural Skagit County, Washington. Deputy Kading ran a check on Smith and discovered that Smith had five outstanding arrest warrants for misdemeanor offenses.
These included charges of driving under the influence, driving while his license was suspended, resisting arrest, malicious mischief, and criminal impersonation.
On February 14, 1998, Deputy Kading drove by Smith's residence and noticed that he was standing outside his home. As Deputy Kading pulled into the driveway, Smith began to run. Deputy Kading ordered Smith to stop, which he did. Once he confirmed Smith's identity, Deputy Kading told him that he was under arrest and ordered him to turn and place his hands behind his back. According to Deputy Kading, Smith became very agitated. He began clenching his fists and looking at the deputy's gun. Deputy Kading unsuccessfully attempted to calm Smith with "verbal judo." Smith made no sudden moves towards Kading, but instead turned to look off down the road. When he turned back to Kading, Kading sprayed his face with pepper spray because, he felt, the "verbal judo" was not working. Smith dropped to his knees and covered his eyes with his hands. Deputy Kading grabbed Smith and attempted to handcuff him, but Smith broke free and began running down the highway.
The attempted arrest took place at a trailer park located at 3090 South Skagit Highway. Approximately 157 feet west down the highway, a steep and rocky driveway led to the home of Smith's mother and step-father. Approximately 1254 feet in the same direction lay the driveway of Defendant Michael Johnson. All of these locations were south of the highway.
Deputy Kading returned to his vehicle and began pursuing Smith. As he drove down the highway, he saw Smith leave the road and run south straight into the woods. At this point, Smith was approximately halfway to Defendant Michael Johnson's driveway. Deputy Kading quickly lost sight of him in the thick brush. Although his testimony is somewhat confusing, Kading apparently believed that Smith would remain in the woods between Johnson's residence and Smith's mother's house.
The relevant testimony from Deputy Kading's direct examination follows:
Q: Where did you think he was going at that point?
A: I thought it seemed logical for him to run directly to his parents' house
. . . . .
What I do is I get in my patrol vehicle, and I drive down to the next road, the next accessible road which I believe may get me closer to him, and drive up the road and encounter a gate.
Q: Now, why did you go further west, which turns out to be Mr. Johnson's driveway? Why do you drive in that direction?
A: Because my gut feeling was he's not going to double back and go up his mother's driveway, because he's thinking I'm thinking he's going to go to his mom's house. I'm going to go down this direction I think he's trying to get away from me going this way. I don't think he's going to make a circle.
Q: But you had just said you thought he was going to his mother's house.
A: Right. Be he doesn't — my gut feeling was to go this direction.
Kading radioed for back up and requested a canine unit. He turned down a long, twisting driveway and followed it back 250 yards into the woods until he came to a 14-foot locked gate with a "No Trespassing" sign. A 5-foot high cyclone fence extended in both directions from the gate. This was Johnson's driveway. Kading then returned to the Smith residence for his pepper spray, came back, and waited by the locked gate for backup.
Approximately 15 minutes later, Deputy John Rose was directed by Kading to drive to Smith's mother's house and wait there. Ten minutes later, Deputy Sigman met Kading at the gated entrance to Johnson's yard. The three deputies discussed the situation and formulated a plan in which Kading and Sigman would enter Johnson's property and proceed through the woods toward Smith's mother's house.
In order to pursue Smith, the officers felt they needed to get through the locked gate. They could not open the padlock; instead, according to Kading, there was enough "play" in the locking mechanism to allow the officers to "manipulate" the hasp of the gate and gain entry while keeping the padlock locked. Once inside the gate, the officers drove up the driveway approximately 50 yards and parked their vehicle in a yard. On the right side of the driveway was Johnson's house. On the left side of the driveway, approximately 30 yards from the house, was a large dog kennel enclosed by a chain link fence. Behind the dog kennel was a small "mushroom shed." The shed was about 40-50 yards from the house. None of the residential area had been visible from the gate.
Johnson refers to this structure as a "mushroom shed" because the previous owners had used the shed to grow mushrooms.
The first thing the officers did was knock on the door of Johnson's home to see if he was in and alert him to their presence. When they received no answer, they began searching his property for Smith. First, they checked a covered patio near the back of the residence to see if Smith was hiding there. Next, they checked the outer area of the kennel. The officers then peered into two old vehicles parked next to the kennel and looked under a blue tarp that was spread out near the cars. Finally, the officers followed a trail behind the kennel to the mushroom shed, which was locked with a new padlock. When the officers were within one or two feet of the door of the mushroom shed, Kading smelled what he knew from training was marijuana. He tried to open the door to the shed, but the padlock prevented him. At this point, the deputies left Johnson's property and drove to Smith's mother's house. They did not continue their planned search in the woods, and Smith was never found.
A state search warrant was subsequently obtained based on Kading's and Sigman's observations while on Johnson's property. On February 19, 1998, the warrant was executed and 553 marijuana plants were recovered. On April 23, 1998, Johnson was federally indicted on one count of manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)(B).
Prior to entering a conditional plea of guilty, Johnson filed a motion to suppress, arguing that the deputies violated the Fourth Amendment when they conducted a warrantless search of his property. The district court judge held an evidentiary hearing and denied the motion, basing her ruling primarily on the existence of "hot pursuit" or "exigent circumstances." Johnson subsequently pled guilty to the filed charges, but preserved his ability to appeal the denial of his motion to suppress.
III.
Although both the parties and the district court focused attention on the "exigent circumstances" and "hot pursuit" exceptions to the Fourth Amendment warrant requirement, it also must be determined whether the fenced area around the residence that was searched was subject to Fourth Amendment protection.
A.
The Fourth Amendment protection against warrantless searches extends to the curtilage around one's home. "Whether an area is within the protected curtilage of a home is an essentially factual inquiry" that we review for clear error. United States v. Soliz, 129 F.3d 499, 502 (9th Cir. 1997). The Second Circuit has "assumed, without deciding," that a review of a curtilage determination was affected by Supreme Court's holding in Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), that determinations of probable cause and reasonable suspicion should be subject to de novo review. United States v. Reilly, 91 F.3d 331, 331 (2d Cir. 1996). On the other hand, the Seventh Circuit has explicitly cited Ornelas for the proposition that curtilage is a factual determination to be reviewed under a "clearly erroneous" standard. United States v. Shanks, 97 F.3d 977, 979 (7th Cir. 1996).
In this case, the facts regarding the curtilage issue and any determination based therein are very complex, as demonstrated by the discussions in this opinion and the dissent. Regardless of what type of review must ultimately be made, it is vital for the district court to first make findings of fact upon which that review can be based. Because a majority of the judges on the panel reach the dispositive issue and agree that the search violated Fourth Amendment protections, we leave for another panel the question of resolving what standard of review this Court applies to curtilage determinations. See United States v. Crespo de Llano, 830 F.2d 1532, 1542 n. 2 (9th Cir. 1987) (holding that disagreement over standard of review was dictum where a majority agreed on the ultimate conclusion). The Court should wait for a case in which the district court makes explicit findings about curtilage before determining our standard of review for this issue. This case is therefore remanded to the district court for a determination of the curtilage issue. See United States v. Furrow, 229 F.3d 805, 817 (9th Cir. 2000); United States v. Traynor, 990 F.2d 1153, 1156-57 (9th Cir. 1993).
In United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the Supreme Court directed that questions of curtilage should be
resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by.
The Court stressed that these factors cannot be "mechanically applied," but are merely "useful analytical tools" to determine whether an area is to be protected from unconstitutional searches and seizures. Id. The position taken by the dissent illustrates why this Court should not determine curtilage questions with no guidance from the district court as the factfinder. The findings by the dissent, as demonstrated below, miss essential elements in the determination of curtilage.
B.
In undertaking the four-factor analysis outlined in Dunn, the district court must be mindful of two additional factors that are important here. First, the government has conceded that it has the burden of proof in this case to show that the search was not within the curtilage of Johnson's residence. Second, the Johnson property had been under surveillance by members of the Skagit County Inter-Local Drug Enforcement Unit, who suspected that Johnson was growing marijuana on his property. At no point during their investigation did these officers enter the area inside Johnson's gated yard, which he contends is the curtilage of his rural property.
a. Proximity
Generally, "there is not any fixed distance at which curtilage ends." United States v. Depew, 8 F.3d 1424, 1427 (9th Cir. 1993). It must be determined on a case-by-case basis. Dunn, 480 U.S. at 301, 107 S.Ct. 1134. The Second and Third Circuits have noted the importance of considering whether the area in question is in a rural, urban, or suburban setting. See United States v. Reilly, 76 F.3d 1271, 1277, on reh'g, 91 F.3d 331 (2d Cir. 1996) (concerning a rural property); United States v. Acosta, 965 F.2d 1248, 1256 (3d Cir. 1992) (concerning an urban property); see also United States v. Seidel, 794 F.Supp. 1098, 1103 (S.D.Fl. 1992) (concerning a suburban property). These courts have reasoned that the curtilage of a home in a rural area could extend farther than the curtilage of a home in an urban or suburban setting. Reilly, 76 F.3d at 1277 (stating that "on a large parcel of land, a pond 300 feet away from a dwelling may be as intimately connected to the residence as is the backyard grill of the bloke next door").
The dissent does not distinguish between a yard and a field in a rural area. Calling a fenced-in area around a rural home an "open field" does not make it so. It is still a yard, even if somewhat larger than yards in urban areas. The realities of rural country life dictate that distances between outbuildings will be greater than on urban or suburban properties and yet still encompass activities intimately associated with the home; this is the nature of the "farmstead." Recently this Court, in United States v. Furrow, 229 F.3d 805, 817 (9th Cir. 2000), endorsed this analysis in adopting a district court's finding that 100 feet was within the curtilage based in part on the "rural nature of the premises."
b. Enclosure
The second factor analyzes whether the area is included within an enclosure surrounding the home. "[F]or most homes, the boundaries of the curtilage will be clearly marked; and the conception defining curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience." Dunn, 480 U.S. at 302, 107 S.Ct. 1134 (quoting Oliver v. United States, 466 U.S. 170, 182, n. 12, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). While not conclusive, "fencing configurations are important factors in determining curtilage." Dunn, 480 U.S. at 301 n. 4, 107 S.Ct. 1134. In rural pieces of property, as here, natural boundaries such as thick trees or shrubberies may also indicate an area "to which the activity of home life extends." Dunn, 480 U.S. at 302, 107 S.Ct. 1134 (quoting Oliver, 466 U.S. at 182, 104 S.Ct. 1735). See, e.g., Reilly, 76 F.3d at 1277 (finding that hedgerows and thick trees created a sufficient enclosure to determine curtilage).
Johnson's property consists of over 12 acres of wooded land. Within the twelve-plus acres, a relatively small yard is enclosed by a five-foot high fence. This section encloses the house, the dog kennel, and the mushroom shed. Although there are some smaller fences within this yard, none of the internal fencing segregates the house from the shed. As this yard is surrounded by dense woods and underbrush, the only access to the mushroom shed is from Johnson's driveway and residence.
c. Use
Prior to beginning their search, the officers possessed no objective data that the mushroom shed was not used for intimate activities associated with the home. Other circuits that have addressed the issue have found that officers must have "objective data" about the use of the area prior to entry. See Daughenbaugh v. City of Tiffin, 150 F.3d 594, 599 (6th Cir. 1998) (finding search unreasonable when officers lacked prior objective knowledge that area searched was not used for activities of the home); Reilly, 76 F.3d at 1279 (2nd Cir. 1996) (rejecting the government's argument that the officers had "objective data" about the use of the outbuilding because the officers smelled marijuana after they entered the property); United States v. Swepston, 987 F.2d 1510, 1515 (10th Cir. 1993) (same).
In Dunn, although the Supreme Court relied on information obtained both before (aerial photographs) and after (smell of phenylacetic acid) the search began, it emphasized that it found "especially significant" the fact that the law enforcement officials possessed "objective data" that the barn in question was used to manufacture drugs before entering the property. Dunn, 480 U.S. at 302, 107 S.Ct. 1134. Justice Scalia's concurrence joined in the majority opinion with the exception of this paragraph. Id. at 305, 107 S.Ct. 1134 (Scalia, J., concurring). In his opinion, the only significant factor was that the barn was being used for illegal activity; it did not matter whether the officers knew it prior to their entry. Id. Dunn requires that when determining the "use" of an area, the officers cannot rely, as was done in this case, exclusively on information they learn after the search begins.
We have never held that an officer lacking any prior objective knowledge of the use of an outbuilding may approach it free of Fourth Amendment constraints. See, e.g., Depew, 8 F.3d at 1426-1427; Calabrese, 825 F.2d at 1350.
d. Visibility
The fourth Dunn factor focuses on the steps taken by Johnson to prevent observation of the area from passers-by. No part of the residential area is visible from the highway or from the gate. Johnson purchased the property precisely because it was in a rural and secluded area, and one of his reasons for constructing the fence was to keep out neighbors. Only two other people (the meter man and propane man) had keys to the padlock. Under these circumstances, Johnson appears to have made every effort to prevent the public from observing the residential portion of his property. See Depew, 8 F.3d at 1428 (outbuilding within curtilage where Depew made sincere effort to keep public from viewing his property).
The dissent suggests that the fact that Johnson's fences did not block visibility is important to this inquiry. The uncontroverted testimony of the officers, however, indicated that the woods and underbrush surrounding Johnson's yard did block visibility. Indeed, this is why Smith was so difficult to follow. Physical boundaries may protect one's privacy. See Reilly, 76 F.3d at 1277; Daughenbaugh, 150 F.3d at 599; Schroeder, 129 F.3d at 442. The dissent's position, taken to its logical extreme, would place a considerably greater economic burden on rural residents who wish to fence in their property and find that chain-link fence is the most cost-effective way to do so. Privacy interests, however, do not depend on the wealth of a suspect.
State law is also relevant to determining the reasonableness of police activities under the Fourth Amendment. Reed v. Hoy, 909 F.2d 324, 330 n. 5 (9th Cir. 1989) (citing Tennessee v. Garner, 471 U.S. 1, 15-16, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Washington courts have consistently held that its state constitution and laws are more protective of privacy than federal laws:
This does not change our ruling in United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987) that a state exclusionary rule will not trump an application of federal law in a federal court. Our inquiry rather is into the effect state law may have on the subjective expectations of Johnson and the objective expectations of the local sheriffs regarding his property.
[T]he presence of the long history of territorial and state laws prohibiting trespass indicates that Washington places important emphasis on a person's right to exclude others from his or her private property, regardless of the size or developed state of that property.
State v. Johnson, 75 Wash.App. 692, 879 P.2d 984, 990 (1994). The officers who intruded upon Johnson's property were local and state officials to whom the Washington Constitution applies. The state constitution, however, creates a heightened expectation of privacy from intrusion by these officers.
Under the Washington Constitution, the test is whether the government intruded upon the defendant's "private affairs." State v. Myrick, 102 Wash.2d 506, 688 P.2d 151, 154-55 (1984). See supra note 7. In State v. Thorson, 98 Wash.App. 528, 990 P.2d 446, 448-50 (1999), the Washington Court of Appeals was asked to consider the legitimacy of a search where officers on a rural island strayed from the property for which they had a search warrant to another parcel. In holding that the search violated the Washington Constitution's privacy protection, the court focused on subjective expectations of privacy and stated that
Myrick requires us to look to the nature of the property, the expectation of privacy it reasonably supports, and the nature of the intrusion to answer the ultimate question: Whether the government's intrusion violated a privacy interest which citizens of this state have traditionally and justifiably held safe from governmental trespass absent a warrant.
Id. at 449. One of the officers who conducted the search in this case testified as to the kennel, located near the shed, that "if I would have been a private citizen driving up and parked where I did, I'd believe that the kennel would have been attached to that residence." Despite the fact that local drug enforcement had suspected "for some time" that Johnson was growing marijuana on his property — and apparently had performed fly-overs of the area — they did not feel at liberty to enter and investigate the yard around his house.
Based on the combination of the (1) the rural setting, (2) the fence around the home and shed, (3) the lack of objective data pointing to illegal activity prior to entry, and (4) the inability to see the shed from the "open fields," one could find that the shed was "so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301, 107 S.Ct. 1134.
IV.
While the issue of curtilage in this case remains unsettled, the district court fully developed its ruling that the warrantless search of Johnson's property was justified and not entitled to Fourth Amendment protections. Our inquiry now is whether the officers' warrantless search of Johnson's property is justified under the Constitution's Fourth Amendment protections. If it is not, the marijuana plants seized as result of that search should be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We review de novo the validity of a warrantless search. United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996).
"It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The presumption of unreasonableness can be overcome, however, when the police confront an exigent circumstance like a fleeing felon. See Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). In these situations, the exigent circumstance relieves the police of the obligation of obtaining a warrant. Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir. 1995). The exigent circumstance does not, however, relieve the police of the need to have probable cause for the search. Id. As a result, when the government relies on the exigent circumstances exception, it still must satisfy two requirements: first, the government must prove that the officer had probable cause to search the house; and second, the government must prove that exigent circumstances justified the warrantless intrusion. United States v. Lai, 944 F.2d 1434, 1441 (9th Cir. 1991). Based on the record before us, the government failed to satisfy either requirement.
A.
Probable cause is hardly a new concept. See U.S. CONST. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . ."). For over 75 years, the Supreme Court has stated that probable cause exists when the "facts and circumstances" before the officer are sufficient to warrant a person of reasonable caution to believe that the items sought will be found in the place to be searched. See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Supreme Court has emphasized that probable cause "demands" factual "specificity" and "must be judged according to an objective standard." Terry, 392 U.S. at 21-22 n. 18, 88 S.Ct. 1868. "Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more than inarticulate hunches, a result this Court has consistently refused to sanction." Id. at 22, 88 S.Ct. 1868. (emphasis added).
By his own testimony, Officer Kading was led to Johnson's property by no more than a "gut feeling" that Smith would be there. The Supreme Court, however, has made it clear that "hunches" are insufficient to establish reasonable suspicion, let alone probable cause. See Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (stating that reasonable suspicion, which is "less demanding than probable cause," requires an officer to articulate more than an "unparticularized suspicion or `hunch'"); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (same); United States v. Kerr, 817 F.2d 1384, 1387 (9th Cir. 1987) (emphasizing that even for a Terry stop, "hunches alone will not withstand constitutional scrutiny").
Officer Kading did not provide a single objective fact to support his hunch or establish that it provided probable cause to rummage around Johnson's yard. At the suppression hearing, Officer Kading testified that he initially thought that it was "logical" that Smith would turn left (southeast) in the woods and head directly toward his parent's house. He was so confident of this prediction that when he radioed for backup, he told the responding officers to proceed to Smith's parent's house. Soon afterward, however, he had second thoughts. He stated that he tried to get inside of Smith's head and outsmart him. He speculated that if Smith thought that the officers would go to his parent's house, Smith would do the opposite and run toward Johnson's house (southwest). When asked how he came to this conclusion, Officer Kading admitted that it was just a "gut feeling."
We find no objective facts in the record to support Officer Kading's "gut feeling." For example, Officer Kading does not claim that he saw footprints leading toward Johnson's property, heard sounds coming from Johnson's property, or observed broken branches on the trees leading toward Johnson's property. The only thing that Officer Kading knew was that a half hour earlier, Smith had run into the woods halfway between Johnson's driveway and Smith's driveway and that Smith's mother lived nearby, in the opposite direction of Johnson's house.
That is the extent of the objective facts. None of these facts make it any more likely that Smith was hiding on Johnson's property rather than in some other location in the surrounding area. Police officers do not obtain probable cause to conduct a search in one place based on the lack of probable cause to search another place. They obtain probable cause because the facts indicate that they will find what they are looking for in the place to be searched. See Terry, 392 U.S. at 22, 88 S.Ct. 1868. No such facts exist in this case.
Moreover, we are at a loss as to why, given the facts before us, Officer Kading reached his decision to search Johnson's property at all. Officer Kading was chasing Smith in his car; it seems likely that once Smith ran into the woods he would avoid areas where cars could travel. Apparently, this is exactly what happened. After all, this was a sparsely populated rural area. The terrain was hilly and covered with thick brush and trees. Johnson's property alone consisted of over 12 acres and the neighboring lots were a similar size. Once Smith got into the woods and Officer Kading lost sight of him, Smith's options were unlimited. He could have run east toward his own property; he could have run southwest past Johnson's property; he could have stayed in the woods by the highway and used it as a lookout post; or he could have watched Kading drive down Johnson's driveway and then run north across the street into the woods on the other side of the highway. If he had wanted shelter, Smith could have sought shelter on his parent's property, his own property, some other neighbor's property, or out in the woods.
These facts are analogous to those in United States v. Winsor, 816 F.2d 1394 (9th Cir. 1987), vacated on other grounds, 846 F.2d 1569 (9th Cir. 1988) (en banc). In Winsor, the police followed a bank robber to a "small two-story `residential hotel'" and watched him "disappear" into the building. Id. at 1395-96. The police went room to room and demanded that the occupants open their doors. Id. at 1396. The police eventually found the person they were looking for. Id.
On appeal, we rejected the government's argument that the "hot pursuit" exception justified the warrantless search. We stated that inside a hotel, each room enjoys its own zone of protection from unreasonable searches and seizures. Id. at 1397. Based on this principle, we held that although the police had probable cause to enter the hotel, they did not have probable cause to search any particular room. Id.
The Appellant in this case argues persuasively that, like the individual hotel rooms in Winsor, all of the homes in the area where the police saw Smith enjoyed a zone of privacy that they could not invade without probable cause. In fact, Johnson presents an even stronger case. In Winsor, 816 F.2d at 1395-96, the police at least knew that the suspect was somewhere in the hotel; they just did not know in which room he was hiding. By contrast, in this case, the area where Smith was last seen is sparsely populated and covered with thick brush and trees. Johnson's property alone contains over 12 acres and the adjoining property where Smith was last seen is at least as big. The hiding places are potentially endless. This is especially true given that Smith was probably very familiar with the terrain in this area. Furthermore, the police in Winsor caught their man; Smith remains at large.
There is simply no way to transform Officer Kading's "gut feeling" into "probable cause." The Supreme Court has clearly stated that gut feelings and inarticulable "hunches" do not equal reasonable suspicion, let alone probable cause. Wardlow, 528 U.S. at 123-24, 120 S.Ct. 673; Terry, 392 U.S. at 27, 88 S.Ct. 1868. Based on this well-established precedent, we hold that probable cause did not exist here.
B.
Our decision would not be altered even if the Government were able to show probable cause. "[N]o amount of probable cause can justify a warrantless search or seizure absent `exigent circumstances.'" Horton v. California, 496 U.S. 128, 137 n. 7, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). See also LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir. 2000). The Government suggests that the exigent circumstances that prevented Deputy Kading from attempting to secure a search warrant was the deputy's "hot pursuit" of Smith. We hold otherwise.
The hot pursuit exception to the warrant requirement only applies when officers are in "immediate" and "continuous" pursuit of a suspect from the scene of the crime. Welsh, 466 U.S. at 753, 104 S.Ct. 2091; United States v. Salvador, 740 F.2d 752, 758 n. 5 (9th Cir. 1984), cert. denied 469 U.S. 1196, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985). In addition, the critical time for determining whether any exigency exists is the moment the officer makes the warrantless entry. They cannot rely on exigencies discovered once they are inside. United States v. Lindsey, 877 F.2d 777, 781 (9th Cir. 1989).
The Supreme Court developed the exigent circumstances exception to the warrant requirement in Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), where it upheld a warrantless search where "the exigencies of the situation made that course imperative." It expanded on the "hot pursuit" exigency in United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), where it wrote that "hot pursuit means some sort of a chase, but it need not be an extended hue and cry in and about the public streets." In the context of a fleeing suspect, any fine distinctions between these two doctrines is immaterial.
Based on the record in this case, it is clear that the officers' pursuit of Smith was not "continuous." After Officer Kading lost sight of Smith in the woods, he waited for a half hour for backup to arrive. During this time, he returned to Smith's residence and retrieved a pepper spray canister that he had lost during his confrontation with Smith. When the officers entered Johnson's property, no one had seen Smith for over a half hour. Unless the "continuity" requirement is stretched beyond recognition, the facts of this case simply are not covered by the "hot pursuit" doctrine. The half-hour time period, during which the officers received no new information about where Smith had gone, turned the pursuit from lukewarm to ice cold.
While we respect Deputy Kading's concern for his safety had he followed Smith into the woods, it does not change the fact that Johnson had not been seen or heard for at least 30 minutes after disappearing into the woods. This is not a case where the police officers always knew exactly where the suspect was, but decided that it would be dangerous for them to enter the property until reinforcements arrive. Cf. Lindsey, 877 F.2d at 779 (noting that when backup arrived, officers saw the suspect through the window of the house). Under such circumstances, the "continuity" of the chase is delayed, but not broken. See United States v. Lindsay, 506 F.2d 166, 173 (D.C. Cir. 1974) (stating that "[s]peed and continuous knowledge of the alleged perpetrator's whereabouts are the elements which underpin this exception to the warrant requirement").
In this case, however, the continuity of the chase was terminated permanently. Smith did not run into a confined area where Officer Kading could monitor his movements while waiting for his backup to arrive. Smith ran into a wooded area where he was free to run for over a half hour. Once the alleged "pursuit" resumed, the officers no longer had any idea where Smith was.
Under these circumstances, the continuity of the chase was clearly broken and a warrant was required. Although this requirement may be inconvenient to law enforcement, any other outcome renders the concept of "hot pursuit" meaningless and allows the police to conduct warrantless searches while investigating a suspect's whereabouts.
We also find instructive the Supreme Court's holding in Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), that "an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made." Id. at 753, 104 S.Ct. 2091. Although the Court did not draw a bright line between felonies and misdemeanors, it cited favorably a number of cases that refused to permit warrantless entries of the home for "nonfelonious crimes." Id. at 752, 104 S.Ct. 2091. Based on these cases, the Court found that "application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed." Id. at 753, 104 S.Ct. 2091.
Smith was only wanted for misdemeanor offenses. Even his unlawful conduct that gave rise to the initial chase, i.e., resisting arrest, is a misdemeanor under Washington law. See Wash. Rev. Code § 9A.76.040. Although this does not definitely preclude a finding of exigent circumstances, it weighs heavily against it.
We do not suggest that Officer Kading did not have a right to pursue Smith through the public streets after he resisted arrest. The question, rather, is whether the search can continue when it encroaches on a person's Fourth Amendment rights. Put differently, the question is whose interest should yield — a person's right to be free from warrantless intrusions or law enforcement's interest in apprehending a fleeing suspect. Cf. Brinegar, 338 U.S. at 176, 69 S.Ct. 1302. In situations where an officer is truly in hot pursuit and the underlying offense is a felony, the Fourth Amendment usually yields. See United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). However, in situations where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment in all but the "rarest" cases. Welsh, 466 U.S. at 753, 104 S.Ct. 2091.
Adding another element to this case is the fact that the officers encroached on the property of a person who did not create the exigent circumstances and was completely unrelated to the suspect and his misdemeanors. Here, it was Smith who created the alleged exigency when he resisted arrest. The officers, however, performed a warrantless search of the property of Smith's neighbor's home (Johnson). Johnson's lack of involvement in the situation that created the exigency is another factor weighing against the reasonableness of the warrantless entry.
Very few cases have considered this issue. In National Organization for the Reform of Marijuana Laws v. Mullen, 796 F.2d 276 (9th Cir. 1986), we confronted a case where drug enforcement officers, in an attempt to eradicate a local marijuana industry, conducted warrantless searches of neighbor's properties. We upheld the district court's determination that "to base probable cause for a search of a neighbor's home or curtilage on the mere fact that a marijuana garden might be visible from that property is to render meaningless the fourth amendment." Nat'l Org. for the Reform of Marijuana Laws v. Mullen, 608 F.Supp. 945, 954 (N.D.Cal. 1985). Similarly, Johnson's rights under the Fourth Amendment cannot be waived simply because the officers were hoping to catch a glimpse of Smith on his property.
Of course, the subsequent warrant after the invalid search does not validate the search. Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
V.
The search was without probable cause and not within the exigent circumstances or hot pursuit exceptions to the Fourth Amendment warrant requirement. Accordingly, we REVERSE on the probable cause issues and REMAND on the curtilage issue for further proceedings consistent with this opinion.