Carter v. U.S.

• Citation: 729 F.2d 935
• Decision Date: 19 April 1984
• Docket Number: No. 83-1456-WA,83-1456-WA
• Parties: Michael Wayne CARTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 935

729 F.2d 935

Michael Wayne CARTER, Appellant, v. UNITED STATES of America, Appellee.

No. 83-1456-WA.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1983.

Decided March 15, 1984.

Rehearing Denied April 19, 1984.

W. Asa Hutchinson, U.S. Atty., Fort Smith, Ark., for appellee.

Thomas A. Martin, Jr., Jasper, Ark., for appellant.

Before HEANEY and McMILLIAN, Circuit Judges, and COLLINSON Senior District Judge ^*

COLLINSON, Senior District Judge.

The appellant, Michael Wayne Carter, was convicted after a non-jury trial in the United States District Court for the Western District of Arkansas ¹ of manufacturing and possessing with intent to distribute marijuana. The indictment charged in Count I that Michael Wayne Carter on July 22, 1982, manufactured approximately 405 marijuana plants, and in Count II that Carter possessed with intent to distribute approximately 405 marijuana plants, and 100 pounds of marijuana, all in violation of 21 U.S.C. Sec. 841(a)(1).

After waiving his right to a jury trial, Carter was tried by stipulation and evidence before the court on January 20, 1983, and found guilty on both counts. He was sentenced to two years' imprisonment on both counts, the sentences to run concurrently, and was fined $1000 on Count I. The court further ordered the defendant to serve a special parole term of two years.

For reversal, the appellant argues that the district court erred in (1) refusing to suppress all evidence seized pursuant to a search warrant issued on July 21, 1982, and executed on July 22, 1982, (2) refusing to suppress evidence garnered pursuant to a second search warrant issued on July 22, 1982, and (3) holding that the burden of proof was on the defendant to prove the legality of a previous warrantless search.

The Federal Bureau of Investigation began an investigation of Carter's activities on July 10, 1982, after receipt of information that marijuana was being grown on the defendant's rural property. A search warrant for this property was issued by the United States magistrate ² on July 21, 1982, on the basis of the following statements in an affidavit made by FBI Special Agent Jack Knox:

On July 10, 1982, a confidential source advised SA Jack D. Knox that Michael Wayne Carter of Newton County, Arkansas, was in the process of growing marijuana on property occupied by Carter in Newton County, Arkansas. According to the confidential source Michael Wayne Carter resided in a mobile trailer, light in color with a female companion and cultivated, cared for and tended a marijuana field located north of the trailer approximately 50 yards. This field having the dimensions of 150 feet X 100 feet approximately, enclosed inside a barbed wire fence consisting of 10 strands of barbed wire, plastic water lines are located on the property leading in the direction to the enclosed field and emanating from a spring approximately 50 yards east of the trailer. On July 15, 1982, Rod Combs, Sgt. Arkansas State Police, Narcotics Division, while flying over said property observed a green vegetable matter growing in the vicinity of the trailer occupied by Michael Wayne Carter; such vegetable matter having the physical appearance of marijuana. On July 20, 1982, confidential source referred to previously advised that within the past five days marijuana plants approximately 4 to 6 feet tall were observed growing on the property occupied by Michael Wayne Carter and that at least one individual was observed tending the marijuana. Confidential source advised that the marijuana field, in addition to being enclosed by barbed wire, had what appeared to be a shotgun affixed to a tree and attached to a trip wire.

On July 20, 1982, Lt. Earl Rife, Arkansas State Police, advised that Michael Wayne Carter had been known to the Arkansas State Police for approximately three years and that information had been received indicating that Carter was involved in the growing of marijuana.

Lt. Rife has extensive experience in enforcing the laws concerning controlled substances and it has been his experience that in the mountainous areas of Arkansas, marijuana fields are located in wooded areas for security reasons and it is customary to irrigate such fields and due to the value of marijuana and the criminal nature of growing marijuana, these fields are protected by growers using various means including the use of firearms.

The confidential source referred to herein has furnished information for approximately 15 months on controlled substances, and criminal intelligence information in northwest Arkansas on at least five occasions. Such information verified where possible and this information proved to be reliable.

The search warrant was executed on July 22, 1982, by combined forces of the FBI and the Arkansas State Police. The defendant accompanied the officers during the search which disclosed 404 marijuana plants in a garden area and three trash cans containing plastic bags filled with approximately 100 pounds of marijuana. The garden area was surrounded by a ten-strand barbed wire fence approximately seven feet high. The officers also located two shotguns tied to trees with wires affixed to the triggers.

A second search warrant was obtained on July 22, 1982 for vehicles and the residence located on the Carter property. The execution of this search warrant resulted in the location of marijuana leaves contained in a cardboard box inside a van.

After indictment, the defendant moved to suppress the evidence against him on the ground that the affidavit in support of the search warrant did not provide probable cause for the issuance of the warrant. The district court conducted a hearing on December 22, 1982, and after the testimony of Special Agent Knox, the district court denied the defendant's motion. After submitting a written waiver of his right to a jury trial, the case was tried before the district court on January 20, 1983, upon a stipulation of facts and the short testimony of Special Agent Knox. Upon conclusion of this evidence, the court found the defendant guilty on both counts contained in the indictment.

Thereafter the defendant filed a renewed motion to suppress evidence alleging that the confidential source named in the search warrant was in reality an officer of the Arkansas State Police who obtained his information by virtue of a warrantless and illegal search of the defendant's property.

The district court conducted a post-trial hearing on this renewed motion on March 30, 1983, at which Officer Rodney Combs of the Arkansas State Police and the defendant testified. Officer Combs testified that Officer Hicks of the Arkansas State Police was the informant named as the confidential source in the affidavit for the original search warrant. Combs testified that he and Hicks had walked along an electrical power right-of-way that crossed the defendant's property on May 12, 1982. Upon discovering a pump and water line and following a log road, the officers observed the marijuana growing inside the ten-strand barbed wire fence through a clearing in the heavy foliage and underbrush. They repeated their steps and saw the marijuana again on July 20, 1982. Combs further testified that there were no posted "no trespassing" or "keep out" signs on the property, that he never crossed the ten-strand fence, and that the officers were at all times 200 to 300 feet from the camper-trailer observed on the property.

Carter testified that the fence was intended to preserve his privacy. He stated that he made frequent surveys of the perimeter of the compound and saw no break in the foliage or undergrowth that would allow detection of the garden without invading the ten-strand fence. On cross examination, he further testified that hunters possibly walked onto his property and that the property was not posted with "no trespassing" signs. Both parties introduced into evidence pictures of the property which depicted its foliage and underbrush. Upon consideration of this evidence, the district court denied the defendant's renewed motion to suppress the evidence seized during the execution of the...