U.S. v. Bernard, 84-5127

• Decision Date: 18 March 1985
• Docket Number: No. 84-5127,84-5127
• Citation: 757 F.2d 1439
• Parties: UNITED STATES of America, Appellee, v. David Meade BERNARD, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1439

757 F.2d 1439

UNITED STATES of America, Appellee, v. David Meade BERNARD, Appellant.

No. 84-5127.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1985.

Decided March 18, 1985.

John B. Spiers, Jr., Radford, Va. (Spiers & Spiers, Radford, on brief) and Edward M. Jasie, Blacksburg, for appellant.

Larry R. Ellis, Asst. U.S. Atty., Charleston, W.Va. (David A. Faber, U.S. Atty., Charleston, W.Va., on brief), for appellee.

Before HALL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

K.K. HALL, Circuit Judge:

David Meade Bernard appeals his conviction by a jury of possession of marihuana, in violation of 21 U.S.C. Sec. 844(a), and his sentence of one year imprisonment and $5,000 fine. Finding no error, we affirm.

I.

Beginning about 10:30 a.m., and continuing throughout the day on September 2, 1983, state and federal law enforcement personnel in two helicopters conducted aerial surveillance for marihuana fields in Monroe County, West Virginia. The first helicopter was manned by West Virginia State Police Officers Mitchem, Hatten, and Coburn and an Assistant United States Attorney. A State Police Trooper, two Drug Enforcement Agency ("DEA") Agents, and another Assistant United States Attorney were in the second helicopter. Several law enforcement agents and civilians comprised the ground crew.

This September 2nd surveillance was one of a series of aerial surveillances for marihuana fields in Monroe County. During the week before the instant surveillance, Corporal Mitchem and Troopers Hatten and Coburn had discovered more than thirty such fields. While securing some of those fields, the officers had encountered a variety of dangerous devices installed by the marihuana growers to protect their crops of contraband. These included ankle and neck-high trip wires, barbed wire stretched across paths at eye level, pit-falls, steel traps, electric fences, and guard dogs, such as Doberman Pinschers. The officers had also confiscated numerous firearms, including loaded weapons left behind in guard towers situated in marihuana fields when the guards abandoned their posts and ran away.

On another occasion approximately a year earlier, Trooper Coburn had found a booby-trap device in Monroe County. That device was attached to a fence post and activated by a trip wire. It was constructed from a rat trap and designed to shoot a 12-gauge shotgun shell. Accordingly, the officers proceeded with caution on September 2nd.

Around 5:00 or 5:30 that day, while the second helicopter was being refueled, Trooper Coburn suggested that the officers in the first helicopter fly over the secluded Trout Run-Back Valley area where a commune had once existed. On the first pass over the area, at an altitude of approximately 3,000 feet, the officers saw two marihuana fields located about one mile apart on adjacent hillsides. They continued their flight path without descending and landed about two ridgetops away where they remained for approximately fifteen to twenty minutes. While on the ground, Trooper Hatten, the pilot of the first helicopter, radioed the pilot of the second helicopter who, in turn, called the ground crew for assistance and adequate manpower to secure both fields. When the second helicopter arrived, both aircraft returned to the area where the marihuana had been sighted.

Upon reaching the area, the helicopters hovered at altitudes of 400 to 500 feet. The officers observed three adults, one child, and three vehicles near what they later discovered was appellant's home. Bernard's residence was located just across a one-lane public road approximately 100 yards from the marihuana field. The officers also saw a clearly worn set of tire tracks leading from appellant's driveway to, and dead-ending at, the marihuana field. Except for the dirt road, the field was encircled by forest and inaccessible. During this second pass over the field, the officers also noted that some of the marihuana plants were missing.

When the terrain prevented the helicopters from landing near appellant's marihuana field, they landed at the other field owned by appellant's neighbor. The two crews armed themselves and proceeded on foot toward the house nearest the neighbor's marihuana field. A Doberman Pinscher began to approach the group but was restrained after the officers issued a warning to its apparent owner. The crew of the second helicopter remained to secure that field while Corporal Mitchem and Troopers Coburn and Hatten, all of whom were armed, walked down the public road to appellant's residence. All of the persons seen from the helicopter had disappeared. Inasmuch as they had observed that some of the plants were missing from this field, the officers feared that the persons seen earlier near the house might be attempting to remove or destroy the marihuana. Accordingly, when they reached the vicinity of appellant's residence, they moved directly away from the residence to the marihuana field. There, they secured the area by checking carefully to ensure that no one was hiding in the brush around the perimeter of the field.

The field contained seventeen marihuana plants about five feet in height and twenty-four marihuana stumps which had been cut straight across with a saw. When they observed sawdust beside each stump, the officers assumed the plants had been recently harvested, possibly since the helicopters first passed over the property.

The officers cut down the remaining plants with a machete. They carried the plants back down the dirt road, crossed the public road, and piled them beside the public road on the lawn adjacent to appellant's driveway near his house, from which point the plants were to be loaded into a vehicle to be brought by the ground crew.

The officers then set about to secure the immediate area by locating the persons they had seen from the air. They first approached the house. Both appellant and his wife came to the door. Trooper Coburn asked appellant who owned the property. Appellant, while inside the house and separated from Trooper Coburn by the screen door, stated that he owned the property on both sides of the public road, pointing across the road in the general direction of the marihuana field. Trooper Coburn then asked appellant to step out on the porch where he advised him of his constitutional rights.

Trooper Coburn next asked appellant if anyone else was in the house, and appellant replied that there was not. The officer then asked the whereabouts of the other adult they had seen from the air, to which appellant responded, "We're the only ones here." Having seen a third adult from the helicopter, Trooper Coburn told the officers, including the ground crew which was then arriving, that someone else was on the property and, for the safety of the officers, ordered them to conduct a protective sweep of the curtilage of appellant's property in search of the missing person.

Officers Mitchem and Hatten walked to the rear of the house and turned in the direction of the barn. As Mitchem and Hatten approached the barn, they could see through a small, open door, approximately four to five feet in height, a number of marihuana plants hanging from low rafters in the barn. The plants were readily visible outside the barn from a distance of five to fifteen feet. After discovering the marihuana hanging in the barn, Officers Mitchem and Hatten continued to search for the missing person.

While the officers conducted the protective sweep, Trooper Coburn explained to appellant that if he did not consent to a search of the outbuildings and residence for the contraband, it would be necessary to obtain a search warrant. They were still engaged in this conversation when one of the officers informed Coburn of the discovery of the marihuana. At about the same time, the missing person was located when appellant's mother-in-law came up the driveway pushing a child in a stroller.

None of the persons were taken into custody inasmuch as appellant's wife was nine months pregnant and due to deliver at any time. Forty-one marihuana plants valued at approximately $82,000 were confiscated.

On September 23, 1983, Bernard was charged with one count of manufacturing, by growing and cultivating, and possessing with intent to distribute marihuana, in violation of 21 U.S.C. Sec. 841(a)(1). He moved to suppress the marihuana plants seized from his property. Following a suppression hearing, the magistrate stated that "[t]he facts in this case present a fairly close question [with] regard [to danger to the State Police]." Nevertheless, the magistrate concluded that there was no reason to suspect that the missing person was armed. He further found that the officers acted unreasonably in not questioning Bernard further as to the whereabouts of the missing person. The magistrate recommended that the twenty-four marihuana plants seized from appellant's barn be suppressed. Pursuant to objections made by both parties, the district court in a de novo determination, upheld the protective sweep search on the ground that the officers' fear for their safety was reasonable and denied all of the defense motions to suppress.

The case proceeded to trial, and the jury found Bernard not guilty on the felony charged in the indictment but guilty...