65 F.3d 1105 (4th Cir. 1995), 94-5839, United States v. Leshuk

Docket Nº:94-5839.
Citation:65 F.3d 1105
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steve LESHUK, Defendant-Appellant.
Case Date:September 18, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1105

65 F.3d 1105 (4th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Steve LESHUK, Defendant-Appellant.

No. 94-5839.

United States Court of Appeals, Fourth Circuit

September 18, 1995

Argued July 14, 1995.

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ARGUED: Stephen Douglas Herndon, Wheeling, WV, for appellant. Paul Thomas Camilletti, Assistant United States Attorney, Wheeling, WV, for appellee. ON BRIEF: Martin P. Sheehan, Sheehan & Nugent, Wheeling, WV, for appellant. William D. Wilmoth, United States Attorney, Wheeling, WV, for appellee.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge WIDENER and Judge HALL joined.


DONALD RUSSELL, Circuit Judge:

On August 30, 1994, Defendant-Appellant Steve Leshuk agreed to a conditional guilty plea for aiding and abetting the manufacture of marijuana in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1). In signing the plea agreement, Leshuk preserved his right to file this appeal. Leshuk now raises various assignments of error challenging his conviction and sentence. Finding that his assignments lack merit, we affirm his conviction and sentence.


On April 26, 1994, a turkey hunter discovered a marijuana cultivation site in a rural area in Marshall County, West Virginia. That same day, the hunter contacted the local sheriff's office and directed Deputy

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Sheriff Joe Cuchta and Deputy Sheriff Michael J. Fluharty of the Ohio Valley Drug Task Force to the site. The site was located approximately one mile through the woods off the travelled road. At the site, Deputy Cuchta observed a chicken wire mesh enclosure surrounding 33 marijuana plants. Each plant was about three or four inches tall and was wet around its base. Vines had been weaved through the mesh to conceal the site.

Shortly after arriving at the site, the deputies and the turkey hunter heard a commotion nearby. The three spread out and moved through the woods towards the commotion to investigate. The turkey hunter first approached the area of commotion, which was located approximately fifty yards from the cultivation site. The hunter called out to the deputies that he had found the defendants, Steve Leshuk and Glen K. Smith. The deputies found the defendants next to two backpacks and Smith also beside a brown plastic garbage bag. Wire mesh similar to that surrounding the cultivation site was attached to the backpacks.

As the deputies approached, the turkey hunter announced "this is the sheriff's office," or words to that effect. The hunter also ordered Leshuk and Smith to raise their hands and stated that the deputies would shoot the defendants' dog if the defendants did not call it off. The deputies then identified themselves as police officers, frisked both defendants, and determined they were not armed. Neither of the deputies was in uniform, and only Deputy Cuchta had a firearm, which was not drawn. The deputies informed the defendants that they were investigating a nearby marijuana site. The deputies asked the defendants about their purpose for being there, but the defendants did not answer. The deputies also asked the defendants about the contents of the backpacks and the garbage bag, but, according to the deputies' testimony, the defendants denied ownership of the packs and bag.

Deputy Cuchta then looked into the garbage bag and found several small marijuana plants in little soil containers. Deputies Cuchta and Fluharty both looked into the backpacks and found a machete, folding shovels, fertilizer, mothballs, containers of water, and other items. The deputies asked about the materials they found, but the defendants did not respond. The deputies also asked the defendants other questions regarding their presence near the site. The defendants identified themselves, and Leshuk stated that he had driven to the site in his pickup truck. At that point, the deputies advised Leshuk and Smith that they were under arrest. The deputies and the defendants began walking back to the police vehicles at the road. At the roadway, Smith tried to run away, but Deputy Cuchta and the turkey hunter chased him down and caught him. After Smith was caught, Deputy Fluharty read Miranda warnings to the defendants. At the conclusion of these events, Deputy Fluharty counted 67 marijuana plants in the garbage bag, and another deputy counted 33 marijuana plants in the fenced-in enclosure. 1

On May 11, 1994, a grand jury in the Northern District of West Virginia returned an indictment charging Leshuk and Smith with manufacturing approximately 100 marijuana plants in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1). Both defendants filed motions to suppress, and a hearing on the motions was held before a magistrate judge on June 14, 1994. Deputy Cuchta testified at the hearing, but Deputy Fluharty was ill and

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was unable to testify. The defendants argued that any statements they made after the initial confrontation with the deputies must be suppressed because the deputies had conducted custodial interrogation without first giving Miranda warnings. The defendants also argued that the items found in the garbage bag and the backpacks must be suppressed because the deputies conducted a warrantless search in violation of the defendants' Fourth Amendment rights.

On July 22, 1994, the magistrate judge filed his proposed findings of fact and recommendations for disposition of the issues. The magistrate recommended that the statements made before the deputies read the defendants their Miranda rights should be suppressed. However, the magistrate denied the defendants' motions to suppress the items found in the garbage bag and the backpacks.

On August 29, 1994, the district court issued its order responding to Smith's and the government's objections to the magistrate's recommendations. 2 The district court first rejected the magistrate's recommendation that the defendants' statements be suppressed. The court found that the deputies' interrogation eliciting the statements did not violate the defendants' rights to receive Miranda warnings, and the court therefore denied the defendants' motions to suppress the statements. From this finding, the court determined that the defendants' denial of ownership in the garbage bag and backpacks was voluntary and was not the result of the deputies' misconduct. Agreeing with the magistrate, the court accordingly denied the defendants' motions to suppress the items found in the garbage bag and the backpacks.

On August 30, 1994, after the jury selection phase of his trial, Leshuk agreed to a conditional guilty plea preserving his right to file this appeal. That same day, the district court reopened hearings on the suppression motions in order to allow Deputy Fluharty to testify. Upon consideration of the additional evidence, the court issued a supplemental decision on August 31, 1994, affirming its earlier ruling. On November 1, 1994, the court sentenced Leshuk to sixty months imprisonment and to four years of supervised release.



Leshuk first argues that his denial of ownership and other statements made during the deputies' questioning should be suppressed because the deputies improperly interrogated him without administering warnings pursuant to Miranda...

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