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PEOPLE OF THE PHILIPPINES, APPELLEE, VS. JUAN G. ESCOTE, JOEY VIC PERAS (ACQUITTED), ROLAND GARCIA (ACQUITTED), ANGELITO R. LISONA (ACQUITTED), AND “BUBOY,” ACCUSED.
Appellant Juan G. Escote appeals from the decision dated 15 October 2001 of the Regional Trial Court of Malolos, Bulacan, Branch 78, in Criminal Case No. 193-M-2000, which found him guilty beyond reasonable doubt of the crime of murder and sentenced him to suffer the penalty of reclusion perpetua and to pay the heirs of the victim P50,000 as death indemnity and P50,000 as indemnity ex delicto.
That on or about the 16th day of June 1999, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with firearms and with intent to kill one Carlos Dueñas, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously, with evident premeditation, abuse of superior strength and treachery, attack, assault and shoot with the said firearms they were then provided the said Carlos DueÔas, hitting him in his body, thereby causing him serious physical injuries which directly caused his death.
Upon their arraignment on different dates, all the accused pleaded not guilty except the one alias Buboy whose true name and identity were never known.
On the evening of 16 June 1999, while Liza de la Cruz, a resident of Pandayan, Meycauyan, Bulacan, was on her way to buy bread, she noticed a gray Lancer box-type car parked alongside the Pandayan Memorial Cemetery. She became suspicious of the men inside the car, as she observed them to bow their heads whenever light from oncoming vehicles hit them. Curious, she approached the car and met the eyes of the man on the driver’s seat. The man glared at her (“pinandilatan ng mata”). Very much intimidated, she ran away. Upon arriving home, she heard gunshots.
Meanwhile, Allan Manalo was watching TV at his home. During the commercial break, he went outside and saw a gray Lancer box-type car at about eight meters away and near the Pandayan Memorial Cemetery. Suspicious that the car’s engine was running while parked, he wrote down the car’s plate number.
At the gate of the memorial cemetery, Ricardo Caitum was having a conversation with the guard when he saw a man alight from a gray Lancer box-type car, which was parked at the side of the cemetery. The man flagged down an approaching orange Honda Civic car. When the orange car stopped, the man asked its driver to alight, but the latter refused. Using a short firearm, the man shot the driver of the orange car, who thereafter attempted to escape the assault by speeding away. The man, however, fired again at the driver of the orange car.
The driver of the orange car was Carlos Dueñas, who died of hypovolemic shock as a result of a gunshot wound in the left lower extremity.
In open court, Liza de la Cruz identified Escote as the driver of the gray Lancer box-type car who glared at her. Ricardo Caitum likewise identified Escote as the person who alighted from the gray Lancer box-type car and shot the driver of the orange Honda Civic car.
For its part, the defense presented Escote as its lone witness. He testified that on 19 July 1999, when the crime was committed, he was already in hiding at Camiguin Island, being an escaped death convict from the Provincial Jail of Malolos, Bulacan. He lived with his cousins and worked as a fisherman from 30 September 1998 to 18 August 1999. Unable to bear rural life, he went to Quezon City, Metro Manila, where he was arrested on 26 September 1999. He vehemently denied the charge against him. He also denied knowing the other accused prior to his arrest. He claimed that he was merely implicated by a certain Willy who was tortured by the Criminal Investigation and Detection Group.
In its decision, the trial court gave full faith and credit to the witnesses for the prosecution. It upheld the witnesses’ positive identification of Escote as the author of the crime and rejected his uncorroborated denial and alibi. It therefore convicted him of murder, with treachery as the qualifying circumstance. Finding no proof of the participation of the other accused in the execution of the crime, the trial court acquitted the three other named accused.
Before us, Escote challenges the decision of the trial court convicting him of the murder of Carlos Dueñas on the ground of reasonable doubt. Escote would like us to believe his defenses of alibi and frame-up. He additionally contends that the darkness of the night and the dimly lighted locus criminis precluded a clear identification of the assailant; hence, the prosecution witnesses were merely making wild guesses. He further questions the credibility of prosecution witness Liza de la Cruz by pointing out her inconsistent statements about the assailant having a thin moustache and no moustache.
The Office of the Solicitor General (OSG) maintains that Escote’s guilt has been proved beyond reasonable doubt by the positive testimonies of the prosecution witnesses. They could not have erred in their identification of Escote as the assailant, since the place where the crime took place was adequately illuminated by the lights coming from the residential houses nearby. Besides, these prosecution witnesses had no improper motive to implicate him, and therefore, the finding of the trial court on the credibility of witnesses should not be disturbed. Further, the OSG asserts that Escote’s defense of alibi is unsubstantiated. It also agrees with the trial court’s appreciation of treachery.
The appeal is without merit. We find no cogent or compelling reason to overturn the trial court’s decision.
Well-entrenched in our jurisprudence is the doctrine that the assessment of the credibility of witnesses lies within the province and competence of trial courts. This doctrine is based on the time-honored rule that the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh the testimony in the light of the declarant’s demeanor, conduct, and attitude at the trial and is thereby placed in a more competent position to discriminate between truth and falsehood. Thus, appellate courts will not disturb the credence accorded by the trial court to the testimonies of witnesses unless it is clearly shown that the trial court has overlooked or disregarded arbitrarily facts and circumstances of significance in the case. None of the exceptions was shown in the case at bar.
Verily, we find no reason to doubt the identification by the prosecution witnesses of Escote as the perpetrator of the crime despite the dimly-lighted condition of the place where the crime was committed. Visibility is indeed a vital factor in the determination of whether an eyewitness could have identified the perpetrator of a crime. We have consistently held that the illumination produced by kerosene lamp, flashlight, wick lamps, moonlight, or starlight in proper situations is considered sufficient to allow identification of persons. In this case, the light coming from the electric bulbs of nearby houses was sufficient to illumine the place where Escote was, and to enable the eyewitness to identify him as the person who shot Carlos Dueñas. Settled is the rule that when conditions of visibility are favorable and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.
Moreover, Escote failed to offer adequate proof that the prosecution witnesses held a grudge against him or that they had a score to settle with him so as to give them motive to falsely testify against him. Where there is nothing to indicate that the witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full faith and credit.
The alleged inconsistent statements of Liza de la Cruz in her sworn statement and testimony in open court are not relevant and material to overturn the positive identification of Escote. Minor discrepancies or inconsistencies in the declarations or testimonies of a witness do not affect, but even enhance, the witness’ credibility, for they remove any suspicion that the testimonies were contrived or rehearsed. What is important is that the testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole.
Necessarily, the defenses of denial and alibi interposed by Escote must fail. We view them with disfavor for being unsubstantiated and uncorroborated. Being negative and self-serving evidence, they cannot secure worthiness more than that placed upon the testimonies of the prosecution witnesses who testified on clear and positive evidence and who positively identified Escote as the perpetrator of the crime.
Treachery was properly appreciated by the trial court. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and especially to ensure the execution of the crime without risk to himself arising from the defense which the offended party might make. The essence of treachery is that the attack is deliberately without warning – done in a swift and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to resist or to escape. Carlos Dueñas was completely unarmed and totally unaware of what Escote wanted or planned to do. He was suddenly shot by Escote, causing a gunshot wound which resulted to his death.
There being no other aggravating or mitigating circumstances alleged in the information and proved during the trial, we sustain the penalty imposed by the trial court, which is reclusion perpetua, the lower of the two indivisible penalties prescribed by law for murder. Other circumstances like quasi-recidivism and the use of an unlicensed firearm were intimated in the records, but were not alleged in the information. They cannot, therefore, affect the determination of the proper penalty to be imposed upon Escote.
As to the civil aspect of the case, the trial court awarded in favor of the victim’s heirs “the amounts of P50,000.oo as indemnity for [the victim’s] death and P50,000.oo as indemnity ex delicto.” Such an award is duplicitous. Article 2206 of the Civil Code authorizes an award of civil indemnity for death caused by a crime, which current jurisprudence has set at P50,000. We, therefore, modify the decision by deleting the other award of P50,000. However, an award of exemplary damages in the sum of P25,000 is warranted because of the presence of the aggravating circumstance of treachery. Exemplary damages is awarded when the commission of the offense is attended by an aggravating circumstance, whether ordinary or qualifying.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered AFFIRMING the 15 October 2001 Decision of the Regional Trial Court, Malolos, Bulacan, Branch 78, in Criminal Case No. 193-M-2000, finding appellant Juan G. Escote guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua with the MODIFICATION that he is ordered to indemnify the heirs of the victim Carlo Dueñas P50,000 as death indemnity or civil indemnity ex delicto and P25,000 as exemplary damages.
 Original Record (OR), 183-189; Rollo, 11-17. Per Judge Gregorio S. Sampaga.
 TSN, 21 November 2000, 4-6.
 TSN, 18 June 2001, 2-6.
 TSN, 21 November 2000, 5-6.
 TSN, 18 June 2001, 3-6.
 People v. Bolivar, G.R. No. 130597, 21 February 2001, 352 SCRA 438, 451.
 People v. Eribal, 364 Phil. 829, 838 (1999).
 See People v. Realin, G.R. No. 126051, 21 January 1999, 301 SCRA 495, 510-511.
 People v. Alib, 379 Phil. 103, 112 (2000).
 See People v. Grefaldia, G.R. No. 121787, 17 June 1997, 273 SCRA 591, 606.
 People v. Conde, 386 Phil. 859, 868 (2000).
 People v. Galano, 384 Phil. 206, 218-219 (2000).
 Art. 63, Revised Penal Code.
 People v. Astudillo, G.R. No. 141518, 29 April 2003; People v. Opuran, supra.
 People v. Catubig, G.R. No. 137842, 23 August 2001, 363 SCRA 621.

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In 1980, Drug Enforcement Administration agents, having discovered that one Carpenter had bought large quantities of chemicals and equipment used to make controlled substances, placed tracking "beepers" in some of the equipment and one of the chemical containers, which, when transported in Carpenter's truck, led the agents to respondent's ranch. Aerial photographs of the ranch showed the truck backed up to a barn behind the ranch house. The ranch was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn, and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates. Without a warrant, officers crossed the perimeter fence, several of the barbed wire fences, and the wooden fence in front of the barn. They were led there by the smell of chemicals, and, while there, could hear a motor running inside. They did not enter the barn but stopped at the locked gate and shined a flashlight inside, observing what they took to be a drug laboratory. They then left the ranch, but entered it twice the next day to confirm the laboratory's presence. They obtained a search warrant and executed it, arresting respondent and seizing chemicals and equipment, as well as bags of amphetamines they discovered in the house. After the District Court denied respondent's motion to suppress all evidence seized pursuant to the warrant, respondent and Carpenter were convicted of conspiracy to manufacture controlled substances and related offenses. However, the Court of Appeals reversed, holding that the barn was within the residence's curtilage, and therefore within the Fourth Amendment's protective ambit.
by the resident to protect the area from observation by passersby. Applying the first factor to the instant case, the barn's substantial distance from the fence surrounding the house (50 yards) and from the house itself (60 yards) supports no inference that it should be treated as an adjunct of the house. Second, the barn did not lie within the fence surrounding the house, which plainly demarks the area that is part and parcel of the house, but stands out as a distinct and separate portion of the ranch. Third, it is especially significant that the officers possessed objective data indicating that the barn was not being used as part of respondent's home, in that the aerial photographs showed that Carpenter's truck was backed up to the barn, apparently to unload its contents, which included the chemical container, and the officers detected strong chemical odors coming from, and heard a motor running in, the barn. Fourth, respondent did little to protect the barn area from observation by those standing outside, the ranch's fences being of the type used to corral livestock, not to ensure privacy. Pp. 480 U. S. 300-303.
2. Respondent's contention that, because the barn is essential to his business, he possessed an expectation of privacy in it and its contents independent from his home's curtilage, is without merit. Even assuming that the barn could not be entered lawfully without a warrant, respondent's argument ignores the fact that, prior to obtaining the warrant, the officers never entered the barn, but conducted their observations from the surrounding open fields after crossing over respondent's ranch-style fences. The Court's prior decisions have established that the Government's intrusion upon open fields is not an unreasonable search; that the erection of fences on an open field -- at least of the type involved here -- does not create a constitutionally protected privacy interest; that warrantless naked-eye observation of an area protected by the Fourth Amendment is not unconstitutional; and that shining a flashlight into a protected area, without probable cause to search the area, is permissible. Pp. 480 U. S. 303-305.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined, and in all but the paragraph headed "Third" in Part II of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part, post, p. 480 U. S. 305. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 480 U. S. 305.
Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the "beeper" a few days later. The agents were able to track the "beeper" in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter's pickup truck, which was carrying the container, arrived at respondent's ranch. Aerial photographs of the ranch property showed Carpenter's truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the "beeper" in the hot plate stirrer that they had lost in early September, and determined that the stirrer was on respondent's ranch property.
Respondent's ranch comprised approximately 198 acres, and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.
barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn. [Footnote 1] At this point, the officers departed from respondent's property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory.
and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house.
to whether the barn lay within the curtilage of the house. We granted the petition, 477 U.S. 903, and now reverse.
We reaffirmed the holding of Hester in Oliver v. United States, supra. There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. 466 U.S. at 466 U. S. 180. We identified the central component of this inquiry as whether the area harbors the "intimate activity associated with the sanctity of a man's home and the privacies of life.'" Ibid. (quoting Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886)).
Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions 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 within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U. S. 207, 476 U. S. 221 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956); United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)). [Footnote 4] We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration -- 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. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house.
First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house itself. 766 F.2d at 882-883; 782 F.2d at 1228. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house.
"for most homes, the boundaries of the curtilage will be clearly marked, and the conception defining the 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."
466 U.S. at 466 U. S. 182, n. 12. Viewing the physical layout of respondent's ranch in its entirety, see 782 F.2d at 1228, it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn -- the front portion itself enclosed by a fence -- and the area immediately surrounding it, stands out as a distinct portion of respondent's ranch, quite separate from the residence.
wall of the barn. Ibid. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, "the smell was very, very strong . . . [and the officers] could hear the motor running very loudly." Id. at 18. When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent's home.
Respondent submits an alternative basis for affirming the judgment below, one that was presented to, but ultimately not relied upon by, the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home's curtilage, in the barn and its contents because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of Oliver v. United States, 466 U. S. 170 (1984).
proscribed by the text of the Fourth Amendment."
466 U.S. at 466 U. S. 177. The Court expressly rejected the argument that the erection of fences on an open field -- at least of the variety involved in those cases and in the present case -- creates a constitutionally protected privacy interest. Id. at 466 U. S. 182-183.
"[T]he term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither 'open' nor a 'field' as those terms are used in common speech."
Id. at 466 U. S. 180, n. 11. It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent's premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn's open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent's barn. This conclusion flows naturally from our previous decisions.
was directed specifically at the identification of marijuana plants growing on an area protected by the Fourth Amendment. Ibid. Finally, the plurality opinion in Texas v. Brown, 460 U. S. 730, 460 U. S. 739-740 (1983), notes that it is "beyond dispute" that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, "trenched upon no right secured . . . by the Fourth Amendment." The holding in United States v. Lee, 274 U. S. 559, 274 U. S. 563 (1927), is of similar import. Here, the officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of Fourth Amendment.
"A. We came back around, we crossed a small wooden type fence here, which put us right underneath a type of a tin overhang and in front of us was a wooden locked gate. . . . "
"Q. How high was that gate?"
"A. It probably came up to my waist, estimated."
"Q. Was that gate open or shut?"
"A. It was shut and it was locked."
"Q. Was there anything above that gate?"
"A. A fish netting, kind of a netting, that was hanging from the ceiling down to the gate."
"Q. Did you cross over that gate and go into the barn?"
"Q. Did you stand outside the gate?"
Prior to the actual search of the barn and ranch house, the agents entered the property for further observations.
"if the barn, stable, or warehouse, be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall."
We decline the Government's invitation to adopt a "bright-line rule" that "the curtilage should extend no farther than the nearest fence surrounding a fenced house." Brief for United States 14. Fencing configurations are important factors in defining the curtilage, see infra at 480 U. S. 302, but, as we emphasize above, the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home. Application of the Government's "first fence rule" might well lead to diminished Fourth Amendment protection in those cases where a structure lying outside a home's enclosing fence was used for such domestic activities. And, in those cases where a house is situated on a large parcel of property and has no nearby enclosing fence, the Government's rule would serve no utility; a court would still be required to assess the various factors outlined above to define the extent of the curtilage.
"especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home."
Ante at 480 U. S. 302. What is significant is that the barn was not being so used, whether or not the law enforcement officials knew it. The officers' perceptions might be relevant to whether intrusion upon curtilage was nevertheless reasonable, but they are no more relevant to whether the barn was curtilage than to whether the house was a house.
two reasons. First, the barnyard invaded by the agents lay within the protected curtilage of Dunn's farmhouse. Second, the agents infringed upon Dunn's reasonable expectation of privacy in the barn and its contents. Our society is not so exclusively urban that it is unable to perceive or unwilling to preserve the expectation of farmers and ranchers that barns and their contents are protected from (literally) unwarranted government intrusion.
"were composed of brick, metal siding, and large metal sliding doors, and were completely enclosed. The front of the barn was partially composed of a wooden wall with windows. The remainder was enclosed by waist-high wood slatting and wooden gates. At the time of [the] agent['s] visits . . . the top half of the front of the barn was covered by a fishnet-type material from the ceiling down to the top of the locked wooden gates. To see inside the barn it was necessary to stand immediately next to the netting [under the barn's overhang]. From as little as a few feet distant, visibility into the barn was obscured by the netting and slatting."
766 F.2d 880, 883 (CA5 1985).
The issues are whether the barn was within the protected curtilage of the house, and whether the conduct of the Drug Enforcement Agency (DEA) agents -- "circling the large barn, being unable to see inside through the back or sides, climbing a wooden fence at its front, entering its overhang and going into the immediate proximity of the fishnet and wooden gate front enclosure" -- infringed upon Dunn's reasonable expectation of privacy in the barn or its contents. Id. at 884.
In Oliver v. United States, 466 U. S. 170 (1984), the Court affirmed its holding in Hester v. United States, 265 U. S. 57 (1924), that the Fourth Amendment protects the home and its curtilage, but not the "open fields." We explained that curtilage is "the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life.'" 466 U.S. at 180 (quoting Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886)).
"the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."
Ante at 480 U. S. 301. The Court applies this test, and concludes that Dunn's barn and barnyard were not within the curtilage of his dwelling. This conclusion overlooks the role a barn plays in rural life, and ignores extensive authority holding that a barn, when clustered with other outbuildings near the residence, is part of the curtilage.
"[c]urtilage includes all outbuildings used in connection with a residence, such as garages, sheds, [and] barns . . . connected with and in close vicinity of the residence."
Luman v. Oklahoma, 629 P.2d 1275, 1276 (Okla.Crim.App.1981) (emphasis added).
been held within the protection of the Fourth Amendment[,] for example, a barn. As construed by the courts from the earliest to the latest times, the words `dwelling' or `dwellinghouse' have been construed to include not only the main but all the cluster of buildings convenient for the occupants of the premises, generally described as within the curtilage").
Federal courts, too, have held that barns, like other rural outbuildings, lie within the curtilage of the farmhouse. See United States v. Berrong, 712 F.2d 1370, 1374 (CA11 1983) ("[t]he outer limits of the curtilage' have been expressly defined to be `the outer walls of the extreme outbuildings'") (quoting United States v. Williams, 581 F.2d 451, 454 (CA5 1978)); Rosencranz v. United States, 356 F.2d 310, 313 (CA1 1966) (barn located an unknown distance from house and separated from it by a driveway deemed within curtilage); Walker v. United States, supra, (barn located 70 to so yards from house, separated from house by private driveway, and surrounded by separate fence is within curtilage); United States v. Swann, 377 F.Supp. 1305, 1306 (Md. 1974) (barns and outbuildings on farm were part of curtilage); United States v. King, 305 F.Supp. 630, 634 (ND Miss. 1969) (barns and other outbuildings of unknown distance from house within curtilage).
Thus, case law demonstrates that a barn is an integral part of a farm home, and therefore lies within the curtilage. The Court's opinion provides no justification for its indifference to the weight of state and federal precedent.
The above-cited authority also reveals the infirmities in the Court's application of its four-part test. First, the distance between the house and the barn does not militate against the barn or barnyard's presence in the curtilage. Many of the cases cited involve a barn separated from a residence by a distance in excess of 60 yards. Second, the cases make evident that the configuration of fences is not determinative of the status of an outbuilding. Here, where the barn was connected to the house by a "well walked" and a "well driven"
path, App. to Supp. to Pet. for Cert. 51a, and was clustered with the farmhouse and other outbuildings in a clearing surrounded by woods, the presence of intervening fences fades into irrelevance.
The third factor in the test -- the nature of the uses to which the area is put -- has been badly misunderstood and misapplied by the Court. The Court reasons that, because the barn and barnyard were not actually in domestic use, they were not within the curtilage. This reveals a misunderstanding of the level of generality at which the constitutional inquiry must proceed, and is flatly inconsistent with the Court's analysis in Oliver.
In Oliver, the Court held that, as a general matter, the open fields "are unlikely to provide the setting for activities whose privacy is sought to be protected by the Fourth Amendment." 466 U.S. at 466 U. S. 179, n. 10. The Court expressly refused to do a case-by-case analysis to ascertain whether, on occasion, an individual's expectation of privacy in a certain activity in an open field should be protected. Id. at 466 U. S. 181. In the instant case, the Court is confronted with the general rule that a barn is in domestic use. To be consistent with Oliver, the Court should refuse to do a case-by-case analysis of the expectation of privacy in any particular barn, and follow the general rule that a barn is in domestic use. What should be relevant here, as in Oliver, is the typical use of an area or structure. The Court's willingness to generalize about the absence of a privacy interest in the open fields and unwillingness to generalize about the existence of a privacy interest in a barn near a residence are manifestly inconsistent, and reflect a hostility to the purpose of the Fourth Amendment.
manufacturing operation. The Fourth Amendment extends that same protection to outbuildings in the curtilage of the home.
What the evidence cited by the Court might suggest is that the DEA agents had probable cause to enter the barn or barnyard before they made any unconstitutional intrusion. If so -- and I do not concede it -- they should have obtained a warrant.
"[t]o see inside the barn, it was necessary to stand immediately next to the netting. From as little as a few feet distant, visibility into the barn was obscured by the netting and slatting."
766 F.2d at 883. The Fourth Amendment does not require the posting of a 24-hour guard to preserve an expectation of privacy.
authorizing search of dwelling also authorizes search of outbuilding); Bellamy v. State, 134 Ga.App. 340, 214 S.E.2d 383, 384 (1975) ("Curtilage' comes down from early English days. An outbuilding on the grounds is within the `curtilage,' and may be searched under such a warrant, though not described specifically"); Meek v. Pierce, 19 Wis. 300, 302 (1865) ("It would destroy the utility of the proceeding if, beside the building principally named, all other buildings and places of concealment upon the same premises, occupied in connection with it and by the same person, could not also be searched, and by virtue of the same warrant"). After today, reliance upon this general rule is illegitimate, and warrants must specify that a search of the farmer's outbuildings is also contemplated.
It is well established that the Fourth Amendment protects a privacy interest in commercial premises. See Oliver v. United States, 466 U.S. at 466 U. S. 178, n. 8 (the protection of privacy interests in business premises is "based on societal expectations that have deep roots in the history of the Amendment"). [Footnote 2/4] The questions in this case are whether a barn is a commercial structure and, if so, how far its owner's expectations of privacy reasonably extend.
"A barn is as much a part of a rancher's place of business as a warehouse or outbuilding is part of an urban merchant's place of business. It is and ought to be constitutionally protected from warrantless searches if the owner or occupier takes reasonable steps to effect privacy."
Smith v. Maryland, 442 U. S. 735, 442 U. S. 740 (1979). This is a two-part inquiry. First, the individual must exhibit a subjective expectation of privacy in the object of the challenged search. See Smith v. Maryland, supra, at 442 U. S. 740. [Footnote 2/7] Dunn has met this standard. See supra at 480 U. S. 312.
property or even on property of the business which is readily accessible to the general public, this is not a search. . . ."
"On the other hand, if the police engage in a much more intense form of surveillance, especially from places not ordinarily used by the public, this is a search under Katz."
1 W. LaFave, Search and Seizure § 2.4 (b), pp. 433-434 (2d ed. 1987) (emphasis added; footnotes omitted). [Footnote 2/9] See Norman v. State, 379 So.2d 643, 647 (Fla. 1980) (petitioner had a reasonable expectation of privacy in his barn because the "barn, as an integral part of petitioner's farming business, enjoyed the same fourth amendment protection as do other business premises" and because he "took overt steps to designate his farm and barn as a place not open to the public").
Looking into a building from a vantage point inaccessible to the public -- here by climbing over the "substantial" wooden fence enclosing the front of the barn to intrude on Dunn's farmyard -- is an unacceptable invasion of a reasonable privacy interest. When, as here, the public is excluded from an area immediately surrounding or adjacent to a business structure, that area is not -- contrary to the Court's position -- part of the open fields.
"[O]ccupants of business and commercial premises should not be put to the choice of taking extraordinary methods of sealing off those premises or else submitting to unrestrained police surveillance."
and other outbuildings are expectations society would regard as reasonable, and because I believe that sanctioning the police behavior at issue here does violence to the purpose and promise of the Fourth Amendment, I dissent.
Cf. United States v. Mullin, 329 F.2d 295, 298 (CA4 1964) ("We are not dissuaded from this view [that the smokehouse was part of the curtilage] by testimony of Government witnesses that, after entering the smokehouse, they found it to be in a dilapidated condition, unfit (in their opinion) for the storage of meat. The critical moment was the appearance of the smokehouse before entry; subsequent observations as to its condition are irrelevant. See also United States v. Di Re, 332 U. S. 581. . . (1948)") (emphasis added).
In addition, the sound of a motor running is not inherently inconsistent with the use of the barn for domestic purposes. Household activities on a farm may differ from those conducted in an urban apartment, but they retain their domestic character. A barn is an integral part of a particular way of life, and its many standard uses are part of a distinctive domestic economy.
"Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by the Fourth Amendmen[t]."
"the Court is willing to sanction the introduction of evidence seized pursuant to a potentially criminal activity (trespassing) in order to convict an individual of a slightly more serious crime."
Comment, Curtilage or Open Fields?: Oliver v. United States Gives Renewed Significance to the Concept of Curtilage in Fourth Amendment Analysis, 46 U.Pitt.L.Rev. 795, 810, n. 87 (1985).
"For good or for ill, [the Government] teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law."
Olmstead v. United States, 277 U. S. 438, 277 U. S. 485 (1928) (Brandeis, J., dissenting).
See also Marshall v. Barlow's, Inc., 436 U. S. 307, 436 U. S. 312 (1978) (the historical foundation of the Fourth Amendment reveals that "it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence"); See v. City of Seattle, 387 U. S. 541, 387 U. S. 543 (1967) ("The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property").
See also Walker v. United States, 225 F.2d 447, 453 (CA5 1955) (Rives, J., dissenting) ("I can see no reason why a farmer should be afforded less protection in the barn where he actually does business, whether located within the curtilage or not, than is accorded a city dweller in his office"); Janney v. United States, 206 F.2d 601, 603 (CA4 1953) (the defendant's barn was protected because "the [Fourth] Amendment extends not only to the dwelling house of a defendant, but also to the structures used by him in connection with his . . . place of business"); United States v. Broadhurst, 612 F.Supp. 777, 790 (ED Cal.1985) (the argument "that farmers or other citizens living and working in rural settings . . . are not protected in their business enterprises by the Fourth Amendment to the same degree as their urban counterparts" could not prevail); Norman v. State, 379 So.2d 643, 647 (Fla. 1980) (the defendant's "barn, as an integral part of petitioner's farming business, enjoyed the same fourth amendment protection as do other business premises").
The usual manner of deciding whether intrusions on land near a dwelling are reasonable is to determine whether an officer is within the curtilage or in the open fields. It is plain that the open fields doctrine is not properly applied to land which has been developed. See Oliver, 466 U.S. at 466 U. S. 180, n. 11, and 178 (emphasis added) ("It is clear . . . that the term open fields' may include any unoccupied or undeveloped area outside of the curtilage." "[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields"); see id. at 466 U. S. 196 (MARSHALL, J., dissenting) ("[W]e may now expect to see a spate of litigation over the question of how much improvement is necessary to remove private land from the category of `unoccupied or undeveloped area' to which the `open fields exception' is now deemed applicable").
The Court has noted that, in some situations, the absence of any subjective expectation of privacy would not defeat an individual's Fourth Amendment claim. See Smith v. Maryland, 442 U.S. at 442 U. S. 740. See also Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 384 (1974).
This requirement comports with the Court's usual view of the relationship between commercial premises and the Fourth Amendment. The Government must obtain a search warrant only when it wishes to search those areas of commercial premises from which the public has been excluded. See See v. City of Seattle, supra, at 387 U. S. 545. See also Comment, 46 U.Pitt.L.Rev. at 816, n. 113.
For example, in Commonwealth v. Soychak, 221 Pa.Super. 458, 462-463, 289 A.2d 119, 122-123 (1972), a police officer, suspicious that gambling activities were taking place inside a certain club, climbed onto the roof of a building and peered through the louvers of a ventilating fan. The court held that, despite the fact that the club had "failed to completely block the view of police investigators," its operators nonetheless possessed a reasonable expectation of privacy.
Cf. Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861, 416 U. S. 865 (1974) (inspector's entry onto corporation land to make an opacity reading of emissions of corporate smokestacks was not a search, because the inspector was not "on premises from which the public was excluded" and "sighted what anyone in the city who was near the plant could see in the sky -- plumes of smoke").
It matters little if this protected area is denominated a "business curtilage" or if the Court holds that the business occupant has a reasonable expectation of privacy there. An area was historically considered part of the curtilage only if used for domestic purposes because the Fourth Amendment was thought to protect only the "sanctity of a man's home and the privacies of life.'" Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886)). Now that it is plain that commercial buildings, too, are covered by the Fourth Amendment, there is no reason to restrict the application of the curtilage concept to areas surrounding dwellings and used only for domestic purposes. See Comment, 46 U.Pitt.L.Rev. at 816.
In United States v. Swart, 679 F.2d 698 (CA7 1982), for example, the Court of Appeals utilized both a "business curtilage" concept and a Katz reasonable expectation-of-privacy analysis to hold that the warrantless search of business premises violated the Fourth Amendment. In that case, police officers searched the area surrounding a garage and sheds that constituted a business for repairing and rebuilding cars and trucks. The court held that the search violated the Fourth Amendment because the cars "may have been within the curtilage of the business buildings," and because the occupant of the premises had a reasonable expectation of privacy in the cars located on his property which "was not diminished by the fact that the cars were on closed business premises." 679 F.2d at 702.
When a rural business structure such as a barn is also located within the curtilage of a farm residence, there is plainly a substantial likelihood that the business enterprise is also closely related to domestic life. This fact compounds the need for the court to protect the individual's expectation of privacy in the business structure. See United States v. Broadhurst, 612 F.Supp. at 790, n. 11.
"[t]he question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not."
Amsterdam, supra, n. 7, at 403.

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The courts have generally been unwilling to recognize duress as a defense to escape except in the most egregious of situations. As a general rule, one who escapes from a penal institution is not excused even though faced with an immediate threat of death or serious bodily harm if there is a reasonable and viable alternative to the act of escaping. See United States v. Bryan, 591 F.2d 1161, 1163 (5th Cir. 1979), cert. denied, 444 U.S. 1071 (1980); United States v. Boomer, 571 F.2d 543 (10th Cir.), cert. denied, 436 U.S. 911 (1978); United States v. Michelson, 559 F.2d 567, 569 (9th Cir. 1977); and United States v. Chapman, 455 F.2d 746, 749 (5th Cir. 1972).
An indispensable element of such a defense is evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force. United States v. Bailey, 444 U.S. 394 (1980); United States v. Garza, 664 F.2d 135. 141 (7th Cir. 1981), cert. denied, 455 U.S. 993 (1982); United States v. Trapnell, 638 F.2d 1016, 1030 (7th Cir. 1980).

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Swapan Kumar Gayen received his B. Sc. (Honors) and M. Sc. degrees in Physics from the University of Dacca, Bangladesh, in 1975 and 1977, respectively, and his Ph. D. in Physics from the University of Connecticut, Storrs, in 1984. He is currently a Professor of Physics at the City College and the Graduate Center of the City University of New York, and a member of the doctoral faculty of Physics and Electrical Engineering. His research interests are in optical biomedical imaging, imaging of targets in turbid media, tunable solid-state lasers, spectroscopy of impurity ions in solids, nonlinear optics, ultrafast laser spectroscopy, and optical spectroscopy and microscopy of nanoscale materials and composites. Dr. Gayen is a member of the American Physical Society, the Optical Society of America, and the New York Academy of Sciences.
Swapan K. Gayen, Jennifer E. Hastie, and Maria C. Tamargo, “Growth and characterization of ZnCdMgSe-based green light emitters and distributed Bragg reflectors towards II–VI based semiconductor disk lasers,” Phys. Status Solidi A 212, 382–389 (2015). DOI 10.1002/pssa.201431439.
Binlin Wu and S. K. Gayen, “Fluorescence tomography of targets in a turbid medium using nonnegative matrix factorization,” Phys. Rev. E 89, 042708 (2014).
Binlin Wu, W. Cai, S. K. Gayen, “Three-dimensional localization of fluorescent targets in turbid media using time reversal optical tomography,” Appl. Phys. Lett. 101, 251103 (2012).
Yimin Wang, S. K. Gayen, M. Alrubaiee, and R. R. Alfano, “Near-infrared center-of-intensity time gated imaging for detection of a target in a highly scattering turbid medium,” Technology in Cancer Research and Treatment 11, 309 - 315 (2012).
Yang Pu, Wubao Wang, M. Alrubaiee, S. K. Gayen, and M. Xu, “Determination of optical coefficients and fractal dimensional parameters of cancerous and normal prostate tissues,” Appl. Spectroscopy 66, 2012828-834 (2012).
Binlin Wu, M. Alrubaiee, W. Cai, M. Xu, and S. K. Gayen, “Diffuse optical imaging using decomposition methods,” International J. Opt. 2012, Article ID 185435, 12 pages (2012); doi:10.1155/2012/185435.
Binlin Wu, W. Cai, M. Alrubaiee, M. Xu, and S. K. Gayen, “Time reversal optical tomography: locating targets in a highly scattering turbid medium,” Opt. Express 19, 21956-21976 (2011).
W. Cai and S. K. Gayen, “Retrieval of water cloud characteristic from active sensor data using the analytical solution of radiative transfer equation,” JQSRT 111, 226 (2010).
M. Xu, M. Alrubaiee, S. K. Gayen and R. R. Alfano, “Optical diffuse imaging of an ex vivo model cancerous human breast using independent component analysis,” IEEE J. Select. Topics Quantum Electron. 14, 43 (2008).
W. Cai, Xiaohui Ni, S. K. Gayen and R. R. Alfano, “Analytical cumulant solution of the vector radiative transfer equation investigates backscattering of circularly polarized light from turbid media,” Phys. Rev. E 74, 056605 (2006).
M. Alrubaiee, M. Xu, S. K. Gayen, and R. R. Alfano, “Three-dimensional localization and cross section reconstruction of fluorescent targets in ex vivo breast tissue using independent component analysis,” Appl. Phys. Lett. 89, 133902 (2006).
M. Alrubaiee, M. Xu, S. K. Gayen, M. Brito, and R. R. Alfano, “Three-dimensional optical tomographic imaging of objects in tissue-simulating turbid medium using independent component analysis,” Appl. Phys. Lett. 87, 191112 (2005).
M. Alrubaiee, S. K. Gayen, R. R. Alfano, and J. A. Koutcher, “Spectral and temporal near-infrared imaging of ex vivo cancerous and normal human breast tissues,” Technology in Cancer Research and Treatment 4, 455-482 (2005).
M. Xu, M. Alrubaiee, S. K. Gayen and R. R. Alfano, “Three-dimensional optical imaging of objects in a turbid medium using independent component analysis: simulational study,” J. Biomed. Opt. 10, 051705 (2005).
M. Xu, M. Alrubaiee, S. K. Gayen and R. R. Alfano, “Three-dimensional localization and optical imaging of objects in turbid media using independent component analysis,” Appl. Opt. 44, 1889 (2005).
M. E. Zevallos, S. K. Gayen, M. Alrubaiee, and R. R. Alfano, “Time-gated backscattered ballistic light imaging of objects in turbid water,” Appl. Phys. Lett. 86, 011115 (2005).
S. K. Gayen, M. Alrubaiee, H. E. Savage, S. P. Schantz, and R. R. Alfano, “Parotid gland tissues investigated by picosecond time-gated and spectroscopic imaging techniques,” IEEE J. Select. Topics Quantum Electron. 7, 906 (2001).
S. K. Gayen, M. E. Zevallos, and R. R. Alfano, "Near-infrared laser spectroscopic imaging: a step towards diagnostic optical imaging of human tissues," Lasers Life Sci. 8, 187 (1999).
W. Cai, S. K. Gayen, M. Xu, M. Zevallos, M. Alrubaiee, M. Lax, and R. R. Alfano, "Optical three-dimensional inverse image reconstruction of objects in turbid media from ultrafast time-sliced optical transmission measurements," Appl. Opt. 38, 4237 (1999).
S. K. Gayen and R. R. Alfano, “Sensing lesions in tissues with light,” Opt. Express 4, 475 (1999).
M. Zevallos, S. K. Gayen, B. B. Das, M. Alrubaiee, R. R. Alfano, “Picosecond electronic time-gated imaging of bones in tissues,” IEEE J. Select. Topics Quantum Electron. 5, 916 (1999).
S. K. Gayen, M. E. Zevallos, M. Alrubaiee, J. M. Evans, and R. R. Alfano, "Two-dimensional near-infrared transillumination imaging of biomedical media with a chromium-doped forsterite laser," Appl. Opt. 37, 5327 (1998).
Q. Fu, F. Seier, S. K. Gayen, and R. R. Alfano, "A high-average-power, kilohertz-repetition-rate, sub-100-fs Ti:sapphire amplifier system," Opt. Lett. 22, 712 (1997).
K. E. Gonsalves, G. Carlson, X. Chen, S. K. Gayen, R. Perez, M. Jose-Yacaman, "Synthesis and nonlinear optical characterization of nanostructured gold/polymer composites and suspensions," Nanostructured Materials 7, 293 (1996).
R. I. Billmers, S. K. Gayen, M. F. Squicciarini, V. M. Contarino., W. J. Scharpf, and D. A. Alocca, "Experimental demonstration of an excited-state Faraday filter at 532 nm," Opt. Lett. 20, 106 (1995).
S. K. Gayen, R. I. Billmers, Guangning Yang, V. M. Contarino, M. F. Squicciarini, D. M. Alocca, W. J. Scharpf, and P. R. Herczfeld, "Induced-dichroism excited atomic line filter at 532 nm," Opt. Lett. 20, 1427 (1995).
Y. M. Cheung and S. K. Gayen, "Optical nonlinearities of tea studied by the Z-scan and the four wave-mixing techniques," J. Opt. Soc. Am. B 11, 636 (1994).
Y. M. Cheung and S. K. Gayen, "Excited-state absorption in Pr3+:Y3Al5O12," Phys. Rev. B 49, 14 827 (1994).
G. S. Nolas, V. G. Tsoukala, S. K. Gayen, and Glen A. Slack, "Electronic-Raman-scattering study of the low-lying energy-levels of trivalent cerium-doped yttria," Phys. Rev. B 50, 150 (1994).
G. S. Nolas, V. G. Tsoukala, S. K. Gayen, and Glen A. Slack, "Site-selective electronic Raman excitation spectroscopy of the lowest 4f5d transitions in Ce3+:Y2O3," Opt. Lett. 19, 1574 (1994).
Bin Qing Xie and S. K. Gayen, "Resonance enhancement of two-photon transitions to the second excited 4f5d state in Pr3+:Y3Al5O12," Phys. Rev. B 47, 5557 (1993).
S. K. Gayen, Bin Qing Xie, and Y. M. Cheung, "Two-photon excitation of the lowest 4f2 4f5d near-ultraviolet transitions in Pr3+:Y3Al5O12," Phys. Rev. B 45, 20 (1992).
V. Petricevic, S. K. Gayen, and R. R. Alfano, "Continuous-wave laser operation of chromium-doped forsterite," Opt. Lett. 14, 612 (1989).
D. S. Hamilton, S. K. Gayen, G. J. Pogatshnik, R. D. Ghen, and W. J. Miniscalco, "Optical absorption and photoionization measurements from the excited states of Ce3+:Y3Al5O12," Phys. Rev. B 39, 8807 (1989).
V. Petricevic, S. K. Gayen, R. R. Alfano, K. Yamagishi, and K. Moriya, "Laser action in chromium-doped forsterite," Appl. Phys. Lett. 52, 1040 (1988).
V. Petricevic, S. K. Gayen, and R. R. Alfano, "Laser action in chromium-activated forsterite for near-infrared excitation: is Cr4+ the lasing ion?" Appl. Phys. Lett. 53, 2590 (1988).
S. K. Gayen, W. B.Wang, V. Petricevic, K. M. Yoo, and R. R. Alfano, "Picosecond excite-and-probe absorption measurement of intra-2EgE3/2-state vibrational relaxation time in Ti3+: Al2O3," Appl. Phys. Lett. 50, 1494 (1987).
S. K. Gayen, W. B. Wang, V. Petricevic, and R. R. Alfano, "Nonradiative transition dynamics in alexandrite," Appl. Phys. Lett. 49, 437 (1986).
S. K. Gayen, D. S. Hamilton, and R. H. Bartram, "Analysis of the lowest 4f-->5d two-photon transition in Ce3+:CaF2," Phys. Rev. B 34, 7517 (1986).
S. K. Gayen, W. B. Wang, V. Petricevic, R. Dorsinville, and R. R. Alfano, "Picosecond excite-and-probe absorption measurement of the 4T2-state nonradiative lifetime in ruby," Appl. Phys. Lett. 47, 455 (1985).
S. K. Gayen and D. S. Hamilton, "Two-photon excitation of the lowest 4f-->5d near-ultraviolet transitions in Ce3+:CaF2," Phys. Rev. B 28, 3706 (1983).
Binlin Wu, Wei Cai, and Swapan K. Gayen, “Time reversal optical tomography for locating targets in a highly scattering turbid medium,” US patent Number: 9,867,542B2 awarded January 16, 2018.
R. R. Alfano, Min Xu, Mohammed Alrubaiee, and S. K. Gayen, “Optical tomography using independent component analysis for detection and localization of targets in turbid media,” U. S. Patent Number: 7,826,878 B2 awarded November 2, 2010.
R. R. Alfano, J. Ying, W. Cai, and S. K. Gayen, "Methods of improving line-of-sight wireless optical communication through adverse environmental conditions," U. S. Patent Number: 7,106,972 awarded September 12, 2006.
R. R. Alfano, S. K. Gayen, and M. E. Zevallos, "Spectroscopic and time-resolved optical methods and apparatus for imaging objects in turbid media,” U. S. Patent Number: 6,665,557 B1 awarded December 16, 2003.
R. R. Alfano, W. Cai, and S. K. Gayen, "Time-resolved diffusion tomographic 2D and 3D imaging in highly scattering turbid media," U. S. Patent Number: 6,108,576 awarded August 22, 2000.
R. I. Billmers, S. K. Gayen, and M. F. Squicciarini, "Excited-State Polarization Altering Filter," U. S. Patent Number: 5,721,632 awarded February 24, 1998.
R. R. Alfano, V. Petricevic, and S. K. Gayen, "Chromium-doped forsterite laser system," U. S. Patent Number: 4,932,031 awarded June 5, 1990.

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Arturo Estrella, San Juan, Puerto Rico, by appointment of the Court, with whom Vicente Zayas Puig, San Juan, Puerto Rico, was on the brief, for appellant.
J. Thomas Carroll, Jr., Atty., Dept. of Justice, with whom Francisco A. Gil, Jr., U. S. Atty., was on the brief, for appellee.
In this appeal we are primarily concerned with whether the prosecutor's statements to the jury that the government's evidence is uncontradicted violated the defendant's constitutional right not to take the stand in his own behalf.
A jury convicted the defendant on six counts of narcotics violations, three counts arising out of each of two distinct but similar episodes. Concurrent ten year sentences resulted. At the trial Internal Revenue Agent Cartegena testified that on December 21, 1966, he went to the defendant's residence with a special employee of Internal Revenue1 and while there saw the special employee give the defendant some money in exchange for a package that contained narcotics. Agent Cartegena also testified that in substance the same thing occurred again on December 26, 1966.2 An attorney named Cangiano testified that the defendant had been in court with him during the pertinent hours of December 21. This alibi was the only defense presented.
"This does not mean that because the defendant did not present any evidence on December 26 that you will find the defendant guilty for that simple reason. * * * But if you find that the Government has proved its case beyond a reasonable doubt on December 26, and I see no reason why you should not make that determination because the evidence is uncontradicted in that transaction, the defendant does not have to present evidence on his behalf. He does not even have to take the witness stand, and the fact that he does not take the witness stand you should not take into consideration against him, and should make no inference against him, because he did not take the witness stand, but the issues are simple on December 26.
"There is no contradiction. There is the testimony of a competent, reliable witness, a Government employee, testifying that on December 26, 1966, around 12:30 he saw the defendant making a transaction with the special employee Rafael Alfonso Diaz.
The government contends that this extended harangue should be understood not as a comment on the failure of the defendant to testify but merely as a contrast between the December 21 transaction (for which there was an alibi witness and hence a controversy for the jury) and the December 26 transaction (for which no alibi witness was presented); further, that since there was no objection below, defendant must show plain error; and finally that any error applies only to the final three counts and since the sentences were concurrent no prejudice results.
"You must find * * * that the Government has proved its case on that particular transaction beyond a reasonable doubt, but you have to take into consideration that his [agent Cartegena's] testimony has not been contradicted. That is very important in determining whether he was telling the truth or not * * *."
This particular passage cannot be understood as pointing only to the absence of an alibi witness. There is nothing to indicate that there was an alibi witness as to these counts who could have contradicted the agent. There was only one witness who the jury knew was in a position to contradict him — the defendant. But he had the right not to testify, to put the government to its proof, and not to have the fact of his muteness be used as an argument to support the credibility of the government's witness.
We have repeatedly held that such comment, even by implication, is improper. See Holden v. United States, 393 F.2d 276 (1st Cir. 1968); Holden v. United States, 388 F.2d 240 (1st Cir. 1968), cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed.2d 132; Kitchell v. United States, 354 F.2d 715 (1st Cir. 1965), cert. denied 384 U.S. 1011, 86 S.Ct. 1970, 16 L. Ed.2d 1032 (1966); Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). A different case might be presented if it were clear from the record that there was someone other than himself whom the defendant might call as a witness. See Desmond, supra, at 227.4 But this is not such a case. As noted, the availability of an alibi witness for one occasion in no way implies the availability of an alibi witness for a different occasion. We think there was plain error here within the meaning of Fed.R.Crim.P. 52(b). Defendant's constitutional right not to testify was infringed. To begin with, although there was a certain subtlety to the prosecution's remarks, the error was extremely aggravated from the quantitative standpoint. The prosecution hammered the point home relentlessly, stating in at least five different ways that its version of the December 26 happenings was uncontradicted. See Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Compare United States v. Goitia, 409 F.2d 524, decided by this court today; also see Holden v. United States, 393 F.2d at 277. In such a case we are unwilling to allow the government to act improperly and then avoid reversal by the unprovable assertion that grievous prejudice probably did not result.
Indeed, the very persistence of the government in making these remarks is proof that it attached much importance to them. We do not say that the government was contumacious. It doubtless believed that its remarks were at least arguably consistent with our decisions. But one who attempts to define exactly the edge of the precipice approaches at his peril.
Construing these remarks as an indirect comment on the defendant's failure to testify, we are unable to say that their effect was restricted to Counts 4-6 (December 26). Therefore, the usual rule that where concurrent sentences are imposed only one valid count is needed to sustain the conviction has no application in the circumstances of this case. See Saville v. United States, 400 F.2d 397, 399 (1st Cir. 1968).
Defendant also complains because he was sentenced to be committed to the custody of the Attorney General who shall designate the place of his confinement. Specifically he contends that the sentencing statute, 18 U.S.C. § 4082, gives the Attorney General an absolute and arbitrary right to determine the place of incarceration; further, that the custom of sending convicts from Puerto Rico to Atlanta amounts to expatriation and therefore cruel and unusual punishment. While these assertions are not documented by pertinent citations and while the point is now moot as to this defendant, we discuss the matter briefly because of its general importance.
Contrary to defendant's contention the discretion of the Attorney General under the statute, although commodious, is not unbridled. The place of confinement must be "suitable and appropriate" and a determination by the Attorney General in an extreme case could be found to be arbitrary and capricious. See Lawrence v. Willingham, 373 F.2d 731 (10th Cir. 1967). This is surely not such a case. A decision to send prisoners to Atlanta — the nearest federal penal institution available for prisoners in defendant's classification — was made only after a determination that, among other things, the insular penitentiary was unsuitable because of overcrowding. Obviously, prisoners do not have a right to select their place of confinement.
Finally, while it may be acknowledged that certain special hardships, e. g., language difficulties may attach in these circumstances, there is surely no question of cruel and unusual punishment. Defendant speaks of expatriation. But expatriation "is the voluntary renunciation or abandonment of nationality and allegiance." Perkins v. Elg, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320 (1939). Moreover, we are not here concerned with involuntary denationalization. Thus, the discussion in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed. 2d 630 (1958) on which defendant relies, is not controlling, as he acknowledges, and is not in our opinion a fruitful source of analogy.
The judgment of the district court is reversed and the case remanded to that court for a new trial.
It was stipulated that the packages contained narcotics and further that the defendant "was not authorized to deal with narcotic drugs."
"A defendant is not required to testify in a criminal case and no presumption of guilt is raised and no inference of any kind may be drawn from the failure of a defendant to testify."


Hat tip to Joe Gratz for breaking this story.
One of the things that a person sending a takedown notice under the Digital Millennium Copyright Act (DMCA) has to swear to is that he or she “has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. §512(c)(3)(A) (emphasis added). If the sender of the takedown notice makes a knowingly material misrepresentation as to whether the law authorizes the use of the material, the party whose content is taken down can sue under 17 U.S.C. §512(f). This serves as a backstop against DMCA takedown abuses.
The case is Lenz v. Universal Music Corp., No. 07-3783. You may have heard of this case before, as it’s the one where the mom filmed her daughter dancing to Prince’s “Let’s Go Crazy” and uploaded that to YouTube, only to have it removed after a Universal DMCA takedown notice. Lenz sued under §512(f) and Universal moved to dismiss.
In its motion to dismiss, Universal contended that copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement of a copyright rather than a use authorized by the copyright owner or by law.
Because Lenz’s complaint contained allegations of this nature, it was detailed enough to pass Twombly muster [Bell Atlantic Corp. v. Twombly, — U.S. —-, 127 S. Ct. 1955, 1964-65 (2007)], and the case moves forward.
The practical effect of this decision is that one sending a DMCA takedown notice without considering whether the person who posted the content is making a fair use, does so at his or her peril. Let’s be clear — the decision does not mean that sending a takedown notice in a situation where it turns out to be a fair use will automatically result in a finding of §512(f) misrepresentation. But it does add another implicit item on the checklist of the takedown notice sender.
This entry was posted in Copyright, DMCA, Fraud/Misrepresentation and tagged Copyright, DMCA, misrepresentation on August 20, 2008 by Evan Brown (@internetcases).
Perez v. Luu, — S.W.3d —-, (Tex. App. November 1, 2007).
Perez sued Luu in Texas state court after Luu refused to fulfill Perez’s order of 100 hard drives that Perez ordered from Luu online. Luu’s website mistakenly listed the price of the hard drives as $1 each, when in reality Luu charged closer to $1,200 apiece.
The matter proceeded to trial and the court entered judgement in favor of Luu. Perez appealed, and the appellate court affirmed. It held that Perez failed to establish a violation of the Texas Deceptive Trade Practices Act.
The court determined that the relevant portions of the statute [Tex. Bus. & Com. Code Sec. 17.41 et seq.] required a showing of intent to misrepresent the price of goods being offered for sale. Luu introduced evidence showing that the $1 pricing was merely a mistake — the website was new and the developer had previously used a $1 quantity for testing purposes. Moreover, there was language on Luu’s website which gave him the right to correct any errors in pricing.
This entry was posted in Fraud/Misrepresentation and tagged hard drives, intent, misrepresentation, mistake on November 28, 2007 by Evan Brown (@internetcases).
Rockford, Illinois-based Jades Creations, LLC has filed suit in federal court against its competitor in the beaded jewelry industry over what Jades claims were unmeritorious takedown notices sent to Earthlink under the Digital Millennium Copyright Act.
Back in October, SW Creations sent a DMCA takedown notice to Earthlink, the host of Jades Creations’ Web site, claiming that material located thereupon infringed SW Creations’ copyright and trademark rights. (Never mind the DMCA does not apply to trademarks.) Jades, of course, disputed the fact that there was infringing content on its site, and successfully had access to its site restored after sending Earthlink a counternotification.
But Jades didn’t stop there. Obviously perturbed by what it believed to be an unwarranted takedown notice that caused it to lose business, it filed a lawsuit in the Northern District of Illinois, asking for a declaration of non-infringement and asserting various tort claims for the takedown notice.
One of the claims is for tortious interference with the contract between Jades and her hosting provider Earthlink. This is intriguing, but it looks like there could be a bit of a hurdle here.
Under Illinois law, a successful plaintiff in a tortious interference with contract action has to prove, among other things, that an actual breach of contract occurred because of the defendant’s conduct. Belden Corp. v. InterNorth, Inc., 413 N.E.2d 98 (Ill. App. 1st Dist. 1980). Did Earthlink breach the contract with its hosting customer when it obeyed the demands of a third party DMCA takedown notice?
Jades alleges that this was a breach (see paragraph 60 of the complaint). Do you agree?
This entry was posted in Copyright, DMCA and tagged Copyright, DMCA, misrepresentation, tortious interference on November 21, 2007 by Evan Brown (@internetcases).


§ 459-4 Penalties for offenses.
§ 459-10 Selling establishment signs and brochures; report on fertilizer sales.
§ 459-11 Education and reporting on fertilizer risks.
§ 459-12 Annual report; program evaluation reports.
§ 459-13 Signs and brochures.
§ 459-17 Penalties for offenses.
§ 459-18 Rules and regulations.
Environmental protection — See Chs. 450 and 943.
Transport and disposal of hazardous waste — See Ch. 512, Art. I.
Pest control — See Ch. 647.
Vector control — See Ch. 1162.
This Legislature hereby finds and determines that ironite is a fertilizer produced from the mine tailings of a proposed Superfund site in Humbolt, Arizona, and sold to consumers as a lawn and garden fertilizer at stores such as WalMart, Home Depot, Lowe's, and Target. Testing by government agencies has found levels of arsenic high enough to classify the fertilizer as a hazardous waste. Although federal law requires that hazardous waste be properly disposed of in regulated landfills, a legal loophole called the "Bevill Exemption" excludes the mining industry.
This Legislature further finds and determines that hazardous waste can follow from the industry to the farm through a loophole that allows steel companies to send toxic-laden ash, i.e., technically called "K061 Waste," from their smokestacks to companies that make zinc fertilizers, without testing it or even recording where it is going; i.e., this material can literally flow from the smokestack directly to the fertilizer sack and from there to the crop field.
This Legislature finds that any company sending any wastes to a fertilizer company for recycling need only ensure that the material would pass the Environmental Protection Agency's (EPA) Land Disposal Rule (LDR) regulations written for the storage of treated toxic wastes in lined and highly regulated hazardous waste landfills; that if the waste is safe enough to be stored in these landfills, then it is considered safe enough to be recycled into fertilizer; that the generating company is not required to test its wastes beyond the LDR standards, nor is it required to document what eventually happens to it.
This Legislature determines that the third recycling loophole allows companies to transfer their wastes directly to farms if the farms can treat the waste on their land and render the material harmless and that this land treatment process is more highly regulated than the previous two loopholes and was originally designed to allow beneficial use of relatively benign waste.
This Legislature also finds that industrial waste materials are often used in fertilizers as a source of zinc and other micronutrient metals; that current information indicates that only a relatively small percentage of fertilizer is manufactured using industrial wastes as ingredients; and that hazardous wastes are used as ingredients in only a small portion of waste-derived fertilizers. Some fertilizers and soil amendments that are not derived from waste materials can nevertheless contain measurable levels of heavy metals such as lead, arsenic, and cadmium.
This Legislature further finds that the EPA's longstanding policy encourages the beneficial reuse and recycling of industrial wastes, including hazardous wastes, when such wastes can be used as safe and effective substitutes for virgin raw materials. Although the EPA is examining whether some fertilizers or soil conditioners may contain potentially harmful levels of contaminants, the Agency believes that some wastes can be used beneficially in fertilizers when properly manufactured and applied.
This Legislature also determines that concerns have been raised regarding the use of certain wastes in the manufacture of agricultural fertilizers and soil amendments, and the potential for ecological or human health risks, as well as crop damage, when such fertilizers are applied to farmlands. In conjunction with state governments, the EPA has launched a major effort to assess whether or not contaminants in fertilizers may be causing harmful effects, and whether additional government actions to safeguard public health and the environment may be warranted.
This Legislature further determines that, for fertilizers that contain hazardous waste, EPA standards specify limits on the levels of heavy metals and other toxic compounds that may be contained in the fertilizer products; that these concentration limits were based on the best demonstrated available technology for reducing the toxicity and mobility of the hazardous constituents; and that fertilizer made from one specific type of hazardous waste air pollution control dust generated during steel manufacturing is not subject to those concentration limits. This exemption was based on a 1988 finding by the EPA that the composition of this particular waste is comparable to the materials that would otherwise be used to make this type of fertilizer and that its typical use was not harmful. All other fertilizers that contain hazardous wastes are, however, subject to the contaminant concentration limits established by the EPA.
This Legislature also finds and determines that for food-chain crops, farming can occur on land where hazardous constituents are applied as long as the agricultural producer receives a permit from the EPA Regional Administrator based on the agricultural producer demonstrating that there is no substantial risk to human health caused by the growth of such crops.
This Legislature also finds that, unless prohibited by other state or local laws, agricultural producers can dispose of solid, nonhazardous agricultural wastes (including manure and crop residues returned to the soil as fertilizers or soil conditioners, and solid or dissolved materials in irrigation return flows) on their own property.
Therefore, the purpose of this article is to prohibit the sale of ironite fertilizer within the County of Suffolk.
A fertilizer produced from the tail minings of a proposed Superfund site in Humbolt, Arizona, and sold to consumers as a lawn and garden fertilizer.
Individuals; natural persons; partnerships; joint ventures; societies; associations; clubs; corporations; unincorporated groups of any members; officers, directors or stockholders or any kind of personal representative thereof, in any capacity, acting for himself or for any other person, under either personal appointment or pursuant to law.
No individual shall purchase ironite within the County of Suffolk.
No person shall sell or offer to sell ironite to an individual within the County of Suffolk.
Any intentional violation of § 459-3A or B of this article shall constitute an unclassified misdemeanor and shall be punishable by a fine of up to $5,000.
This article shall apply to purchases or sales occurring on or after the effective date of this article.
This article shall be null and void on the day that statewide or federal legislation goes into effect, incorporating either the same or substantially similar provisions as are contained in this article, or in the event that a pertinent state or federal administrative agency issues and promulgates regulations preempting such action by the County of Suffolk. The County Legislature may determine via mere resolution whether or not identical or substantially similar statewide legislation has been enacted for the purposes of triggering the provisions of this section.
This Legislature hereby finds that overapplication and/or misuse of fertilizer products has led to degradation in the local water quality and has harmed groundwater, drinking water, and wetlands and surface waters within the County of Suffolk.
This Legislature further finds that excess nitrogen in drinking water can threaten human health, as fertilizer leachate has contaminated groundwater and groundwater is the sole source of drinking water on Long Island.
This Legislature also finds that nitrogen contamination trends in groundwater are worsening, in that 17% of Upper Glacial public water supply wells in the Upper Glacial Aquifer now exceed six milligrams/liter (mg/l) nitrogen (degraded), an increase from 9% in 1987.
This Legislature further finds that, in 2006, 15 community public water supply wells, and nearly 10% of private wells in Suffolk County, were found to violate the 10 mg/l maximum contaminant level (MCL) set for nitrates to ensure safe drinking water.
This Legislature further finds that various factors may cause excess leaching of fertilizer nitrogen, including use of quick-release fertilizer, percentage of nitrogen in fertilizer, labeling which results in excess application rates of fertilizer, organic/inorganic/polymer formulations, soil types, lawn type and condition, timing of application, and total nitrogen applied per year.
This Legislature further finds that fertilizers are responsible for approximately 50% of the total nitrogen loads to groundwater in the Peconic Estuary and throughout medium-density residential land uses in Suffolk County.
This Legislature further finds that groundwater is, by far, the largest local source of nitrogen to estuaries, and nitrogen loadings to the Peconic Estuary have increased by more than 200% since the 1950s, due to fertilizers and sanitary systems.
This Legislature also determines that excess nitrogen inputs result in depressed dissolved oxygen (hypoxia), harming aquatic life, causing excessive algal blooms, and diminishing water clarity to further impair habitat for aquatic plants.
This Legislature further finds that numerous Suffolk County water bodies have been added to New York State's list of impaired water bodies due to nitrogen over-enrichment, including the sensitive, westernmost areas of the Peconic Estuary, and eelgrass, a critical habitat, has substantially disappeared west of Shelter Island in the Peconics.
This Legislature further finds that more than half of Long Island Sound suffers from hypoxia every summer, that several areas of the South Shore Estuary Reserve are also seeing effects of eutrophication, and that several fish kills have been reported throughout Suffolk County due to low dissolved oxygen.
This Legislature further finds that fertilizer should not be applied to turf when ground is likely to be frozen, or when grass is not actively growing, so that fertilizer use on turf should be banned in cold-weather months, and public education and outreach should be utilized to prevent application during periods of summer dormancy.
This Legislature also determines that the Homestead A-Syst Task Force (Suffolk County Resolution No. 544-2006) sought to address this problem by establishing public education programs and holding public hearings, and that various other educational programs exist through agencies and estuary programs, but these efforts can be coordinated, refined, and expanded.
This Legislature further finds that current information regarding the use of fertilizers is confusing to consumers and leads to the misapplication of fertilizer and contamination of groundwater, drinking water, and estuaries.
This Legislature also determines that the quality of our water should be considered a higher priority than the aesthetics of lawns, and that high-maintenance lawns require more nitrogen and are more likely to leach excess nitrogen, so that high-maintenance lawns should be discouraged.
This Legislature also determines that Suffolk County has already begun implementing programs to reduce nitrogen pollution, and those programs should continue to be refined and formalized as County policy, to serve as a model for residences, the private sector, and other levels of government.
This Legislature also determines that, based on the Peconic Estuary Program Comprehensive Conservation and Management Plan, a goal of 10% to 25% fertilizer reduction is a reasonable initial target for existing residential fertilizing programs.
Therefore, the purpose of this article is to cause a reduction in the amount of nitrogen released into the groundwater by eliminating the use of fertilizers where practicable on lawns and on County property, decreasing the overall use of fertilizer and optimizing the use of fertilizers when they are applied.
The Commissioner of the Suffolk County Department of Environment and Energy.
The Suffolk County Department of Environment and Energy.
A store or person located within Suffolk County who or which sells or offers fertilizer for sale.
Any organic or inorganic material of natural or synthetic origin which is added to soil, soil mixtures, or solution to supplement nutrients and is claimed to contain one or more essential plant nutrients. The term "fertilizer" does not include unmanipulated animal and vegetable manure and agricultural liming materials used to reduce soil acidity.
Any individual, firm, partnership, corporation, company, society, association, or any organized group of persons, whether incorporated or not.
Lakes, bays, sounds, ponds, impounding reservoirs, perennial streams and springs, rivers, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of New York State, and all other perennial bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private, but shall not include artificial ponds.
Any area of earth principally vegetated by grass.
Fertilizer shall not be applied to County-owned real property, except as authorized under § 459-14 of this article.
Fertilizer shall not be applied to any turf on any non-County-owned real property by any person between November 1 and April 1 of every year, except as authorized by § 459-14 of this article.
Fertilizer shall not be applied to any County-owned property, nor to any turf on any non-County-owned real property, within 20 feet of any regulated surface water, except that this restriction shall not apply where a continuous natural vegetative buffer, at least 10 feet wide, separates a turf area and regulated surface water.
An establishment shall conspicuously post a sign and informational brochures on fertilizers and turf management, which shall be furnished by the Department, within 10 feet of the establishment's fertilizer display area. If an establishment has more than one fertilizer display area, and the display areas are not substantially contiguous, then signs and brochures must be displayed within 10 feet of each display area.
The Department shall prepare a report, no later than July 1 of each year, which presents information on fertilizers sold in the preceding year. This report will be based on records available from the New York State Department of Agriculture and Markets. If the Commissioner deems that additional information is needed, the Commissioner is authorized to promulgate rules and regulations necessary to implement a Suffolk County reporting system on fertilizer sales for establishments.
Grassroots Healthy Lawn Program (GHLP).
Homestead A-Syst Task Force, as created by Suffolk County Resolution No. 544-2006.
United States Environmental Protection Agency (USEPA).
Nassau Suffolk Landscape Gardeners Association (NSLGA).
Turfgrass Science Program, Cornell University.
Cornell University New York State Integrated Pest Management (NYSIPM) Program.
Suffolk County Water Authority (SCWA).
Such other organizations as deemed appropriate by the Commissioner of the Department.
Such other factors as deemed appropriate by the Suffolk County Department of Environment and Energy.
The Department shall establish, within one year of the effective date of this article, an interactive website concerning turf and fertilizer-related issues. The website shall present educational materials on fertilizers and County law and policy, including advisory signage and brochures, the prohibition on usage of fertilizers on turf from November 1 to April 1, landscaper training, and the guidelines developed pursuant to § 459-11B. The website may also include a simple computer-based method of determining the amount of fertilizer required for a specific site. Links to other related educational resources shall also be provided.
The Department shall prepare an annual report summarizing information received pursuant to § 459-10 of this article and the report shall show, at a minimum, the total quantities of fertilizer sold in Suffolk County. The report shall also analyze this data with respect to factors deemed to be significant by the Department, which may include, but not be limited to, nitrogen and phosphorus content of fertilizers, slow-release versus quick-release fertilizers, and organic content of fertilizers. This report shall be completed no later than July 1 of the given year, shall be filed with the Clerk of the Legislature within 15 days of completion, and shall be made available to the public.
The Department shall also prepare a report, every five years, beginning in 2014, which evaluates the effectiveness of this article, in terms of fertilizer sales information, environmental impact data, and any other information the Commissioner deems necessary. This report shall be completed no later than September 30 of the given year, shall be filed with the Clerk of the Legislature within 15 days of completion, and shall be made available to the public.
The Department, in consultation with the Suffolk County Department of Health Services, shall develop, within one year of the effective date of this article, the signs and brochures referred to in § 459-10A. The signs and brochures shall be written in a clear and simple manner and shall contain the suggested guidelines referred to in § 459-11B.
Section 459-9 of this article shall not apply to land used in farm operations, as defined in New York Agriculture and Markets Law § 301.
Golf courses; provided, however, that only the minimum amount of slow-release and organic fertilizer shall be used that is needed to sustain healthy turf on golf courses, and that fertilizer application rates shall be limited to three pounds of nitrogen per 1,000 square feet per year, over the golf course as a whole, consistent with the organic maintenance plan adopted via Suffolk County Resolution No. 608-1998.
The Suffolk County Farm; provided, however, that the Suffolk County Farm shall be subject to a goal of nitrogen reduction. The Suffolk County Departments of Planning and Health Services, in consultation with the Department, shall establish strategies to achieve this goal. Recommendations made in the following document shall be considered in developing the strategies: A Strategy to Develop and Implement the Suffolk County Agricultural Stewardship Program — A Report to the Agricultural Environmental Management Task Force for Nitrogen and Pesticides Load Reduction — Final Report (May 26, 2004).
Athletic fields; provided, however, that the County department with jurisdiction over the fields shall develop and comply with an annual plan containing best management practices to reduce use of fertilizer and avoid fertilizer leachate. The plan shall be submitted to the Department for review and approval.
Newly seeded or planted landscapes and newly seeded or newly sodded areas.
Any reporting requirement which is promulgated by Suffolk County pursuant to § 459-10B shall not apply to an establishment selling less than 1,000 pounds of fertilizer in total during the preceding calendar year.
Whether the proposed use can be modified so that the project will not require a waiver.
The Suffolk County Department of Health Services shall enforce the prohibitions and requirements of §§ 459-9 and 459-10 of this article, in accordance with the enforcement procedures established by Suffolk County Sanitary Code, Article II, §§ 760-202 through 760-220.
Any violation of §§ 459-9 and 459-10 this article shall be subject to a civil penalty in an amount not to exceed $1,000 per violation.
Each day of continued violation shall constitute a separate additional violation.
The Department, in consultation with the Suffolk County Department of Health Services and Suffolk County Office of Consumer Affairs, shall issue and promulgate such rules, regulations and standards as deemed necessary and appropriate to carry out the provisions of this article.
Sections 459-9 and 459-10 of this article shall apply to all actions occurring on or after January 1, 2009.


(2) expenses incurred by the Office of Personnel Management in the administration of this chapter within the limitations that may be specified annually by appropriation acts.
(b) The Secretary of the Treasury may invest and reinvest any of the money in the Fund in interest-bearing obligations of the United States, and may sell these obligations for the purposes of the Fund. The interest on and the proceeds from the sale of these obligations, and the income derived from dividend or premium rate adjustments from insurers, become a part of the Fund.
(c)(1) No tax, fee, or other monetary payment may be imposed or collected by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, on, or with respect to, any premium paid under an insurance policy purchased under this chapter.
(2) Paragraph (1) of this subsection shall not be construed to exempt any company issuing a policy of insurance under this chapter from the imposition, payment, or collection of a tax, fee, or other monetary payment on the net income or profit accruing to or realized by that company from business conducted under this chapter, if that tax, fee, or payment is applicable to a broad range of business activity.
5 U.S.C. 2094(c) (less applicability to 5 U.S.C. 2099), (d). Aug. 17, 1954, ch. 752, §5(c) (less applicability to §10), 68 Stat. 739 .
Aug. 11, 1955, ch. 794, §1(a) "(c) (less applicability to §10)", (b), 69 Stat. 676 .
Apr. 11, 1958, Pub. L. 85–377, §1 (less applicability to §10), 72 Stat. 87 .
In subsection (a), the words "of the Employees' Life Insurance Fund" are substituted for "of a fund which is hereby created". The proviso which made appropriations available to the Commission for salaries and expenses for the fiscal year 1955 available on a reimbursable basis for necessary administrative expenses for carrying out the purposes of this chapter is omitted as executed.
1980-Subsec. (c). Pub. L. 96–499 added subsec. (c).
1978-Subsec. (a)(2). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".
Pub. L. 96–499, title IV, §405(b), Dec. 5, 1980, 94 Stat. 2607 , provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Dec. 5, 1980], and shall apply with respect to premiums paid on or after such date."
Pub. L. 103–409, §4, Oct. 25, 1994, 108 Stat. 4232 , provided that: "Notwithstanding section 8714(a)(1) of title 5, United States Code, the Office of Personnel Management shall retain in the Employees' Life Insurance Fund such portion of premium payments otherwise due as will, no later than September 30, 1995, permanently reduce the contingency reserve established under the third sentence of section 8712 of such title 5 by an amount equal to the amount by which payments from the Employees' Life Insurance Fund during the fiscal year ending September 30, 1995, exceed the payments that would have been paid had the amendments made by this Act [enacting section 8714d of this title] not been enacted."