Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Submitted: April 11, 2011
Before WOLLMAN and MELLOY, Circuit Judges, and MILLER, District Judge.*fn1
After Michael Joe Wells was indicted for conspiracy to manufacture methamphetamine, he moved to suppress evidence obtained during two searches of an outbuilding behind his house. The district court granted his motion, and the*fn2 government appeals. See 18 U.S.C. § 3731. We affirm.
In the early morning hours of May 20, 2009, Officer Shane Bates of the Poplar Bluff, Missouri police department received a tip from a confidential informant that Wells was manufacturing methamphetamine in an outbuilding behind his house. Bates drove past Wells's house a few times, but noticed nothing unusual. When he drove past a fourth time, however, sometime between 3:00 and 3:30 a.m., Bates noticed two open doors: one on a camper parked on the street in front of the house and the other on a shed behind the house. Both had been closed during his previous passes. According to Bates, he thought it was "possible" that the open doors signified a burglary. Suppression Hr'g Tr. at 10:5-6.
Bates called two other officers who were on patrol at the time, James Gerber and Timothy Akers, and the three agreed to meet in person "offsite" to discuss how to proceed. Id. at 11:17-21. At 3:56 a.m., Akers called police headquarters with their plan: "Me, Gerber and Bates are fixing to go do a knock-and-talk on Riverview, 924 North Riverview," that is, Wells's house. D. Ct. Order of June 14, 2010, at 2.
Wells's house is on a lot that, viewed from the street (facing south), is 68 feet wide by 178 feet deep. The lot is fenced along its sides and back, but not along its front. The house is set back 27 feet from the street and, at 44 feet wide, occupies nearly two-thirds of the width of the lot. A short paved driveway leads from the street to a carport set into the house, and a paved walkway leads from that driveway to the front door. Additionally, a door in the carport leads into the house.
On either side of the house there is a 12-foot-wide gap between the house and the lot fence. The gap on the western side is covered with grass, while the gap on the eastern side forms part of an unpaved driveway running from the street, along the eastern side of the house, and into the backyard to a shed near the back of the lot.*fn3
Behind the house, and across the backyard from the unpaved driveway, is a two-story outbuilding. It has a ground-level door that faces east, towards the unpaved driveway, containing a large pane of frosted glass. There is also a second-story door facing north, towards the house, accessible by a flight of wooden stairs. The outbuilding sits at least 10 feet behind the house and is, at best, poorly visible from the street.
The three officers arrived at Wells's house at about 4:00 a.m. Akers and Gerber looked inside the street-parked camper to be sure no one was inside, while Bates walked down the unpaved driveway to look in the backyard shed. There was no one inside the camper, and Bates saw only "what [he] call[s] junk" in the shed. Suppression Hr'g Tr. at 29:14-18. Having found nothing, the three officers regrouped on the unpaved driveway near the rear (southeast) corner of the house. From there they had a view across the backyard of the two-story outbuilding and its ground-level door and could see-through the door's frosted-glass window-that a light was on inside.
The officers walked across the backyard to the lighted door. Through its window the officers could see "movement inside . . . and that there [were] actually people in there," although the window treatment made it impossible to "identify an[y] individual[s]." Id. 40:2-16. According to Bates, the officers "waited, I don't know, maybe 30 seconds, and [Gerber] knocked on the door." Id. at 12:14-18. Wells answered, and as the door opened the officers immediately "smell[ed] a strong odor of burnt marijuana, and [saw that] there was smoke in the air." Id. at 13:2-14.
The officers ordered Wells and another man who was with him, Charles Brummit, to come outside. Gerber then went inside to make sure no one else was in the building. While inside he saw "a large bag of marijuana on the table or on a shelf right beside the door." Id. at 45:15-23. Wells and Brummit were arrested for possession of marijuana, and a search of Wells's person revealed "a coffee filter with methamphetamine in it." Id. at 83:16-21.
Later that morning, the officers obtained a search warrant for the outbuilding, supported in part by the evidence collected at the time of Wells's arrest. Pursuant to that warrant, the officers found and "seized 34 items from the [outbuilding] as evidence of the ...