U.S. v. Bassford
| Decision Date | 20 April 1987 |
| Docket Number | No. 85-1739,85-1739 |
| Citation | 812 F.2d 16 |
| Parties | UNITED STATES of America, Appellee, v. Thomas J. BASSFORD, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
David M. Sanders, with whom Rowe and Sanders, Livermore Falls, Me., was on brief, for defendant, appellant.
Timothy C. Woodcock, Asst. U.S. Atty., Bangor, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for appellee.
Before TORRUELLA, Circuit Judge, WISDOM * and ALDRICH, Senior Circuit Judges.
Upon receiving a "tip" that Thomas Bassford, the defendant, was cultivating marijuana near his rural home, the Maine State Police conducted an aerial survey of his property. At an altitude of 1,000 feet, Officers William Draper and Michael Sperry observed Bassford's marijuana plots, and later obtained a search warrant based on their aerial observation. Marijuana plants are "distinctively brighter green than the surrounding area." 1 The officers executed the search warrant the next day, at which time they seized 227 marijuana plants on Bassford's property. The state prosecutor initiated criminal proceedings against Bassford, but later referred the case to the United States Attorney's office. A federal grand jury indicted Bassford, and he was subsequently convicted of possession and intent to distribute marijuana. The district court denied his motions for suppression of the evidence from the aerial search on fourth amendment grounds and dismissal of the indictment on the ground of selective prosecution. We affirm.
Bassford contends that the focussed and intentional aerial surveillance of his home and adjacent property was an unreasonable search violative of his fourth amendment right to privacy. To protect his privacy or, perhaps, to conceal his cultivation of marijuana plants, the defendant built his home on a thirty-acre tract on the side of Mount Abram. The home is a half mile from the nearest public road, a gravel road, and is a quarter of a mile from the end of a road which can be traversed only by a four-wheel drive vehicle. The only border accessible from the road is marked by a stone wall topped with two strands of barbed wire. "No Trespassing" and "Keep Out" signs are posted every fifty feet. Bassford testified that planes "don't fly over my house, because I'm up on the side of the mountain"; if they do, "they're way up going somewhere". There were three marijuana "gardens": one 20 feet from the house, one 100 feet away, and one anywhere from 350 to 450 feet away.
Unfortunately for the defendant, the Supreme Court decided California v. Ciraolo, 2 after briefs were filed in this appeal. In Ciraolo, the Court held that the police had not violated the fourth amendment by flying over and photographing the defendant's urban backyard. The plane flew at a height of 1000 feet to confirm an anonymous tip that the defendant was growing marijuana. The property was surrounded by high fences, preventing ground level observation. The Court assumed that Ciraolo had a subjective expectation of privacy. The Court also assumed that Ciraolo's backyard was within the curtilage of his home, "where privacy expectations are most heightened".
Applying Justice Harlan's frequently cited two-prong analysis in his concurrence in the landmark case of Katz v. United States, 3 the Ciraolo Court agreed with the defendant that he had manifested a subjective expectation of privacy from ground level observations, but left undecided whether the same could be said with respect to aerial observations. 4 The Supreme Court's decision, therefore, is based on the defendant's failure to meet the second requirement of the Katz analysis--a reasonable expectation of privacy:
The observations ... took place within public navigable airspace ... in a physically nonintrusive manner; from this point they were able to observe plants readily discernable to the naked eye as marijuana.... Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent's expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor. 5
The Ciraolo decision may narrow the protection of the fourth amendment, and it may over-expand the plain view doctrine, but it governs this Court. Bassford is in a weaker position than Ciraola. Two of Bassford's marijuana plots were not in the curtilage of his home and one was from 350 to 450 feet away in an open field. And what Bassford refers to as protective measures to preserve a reasonable expectation of privacy might also be referred to as reasonable precautions to avoid his detection as a marijuana grower. Even assuming that appellant has manifested an expectation of privacy, this expectation is unreasonable under Ciraolo. The dispositive consideration is not the probability that a person would see his illegal activities, but rather that "any member of the public [flying at 1000 feet or lower] ... could have seen everything that these officers observed." 6
A. At trial, the defendant moved for a dismissal on grounds of selective prosecution and, in the alternative, for an evidentiary hearing on the issue. The district judge allowed a limited evidentiary hearing and later denied the motion for dismissal.
Prosecutors have broad discretion in deciding whom to prosecute. 7 Moreover, the courts should presume that the prosecution was pursued in good faith execution of the law. 8 The prosecutor's discretion is limited by constitutional principles of equal protection and due process, which protect individuals from selective enforcement and prosecution. 9 To overcome the presumption of good faith, a defendant must establish that his prosecution results from "intentional and purposeful discrimination". 10
The test for intentional and purposeful discrimination has been set out as follows:
To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. 11
To obtain an evidentiary hearing, the defendant has a lesser burden and need allege only "some facts (a) tending to show that he has been selectively prosecuted and (b) raising a reasonable doubt about the propriety of the prosecution's purpose." 12 If the prosecutor presents "countervailing reasons" to justify the prosecution, the district court may refuse to grant an evidentiary hearing. 13
The district court held that the defendant failed to allege sufficient facts to justify a further evidentiary hearing on his claim of selective prosecution. We agree with this holding, but under a different approach from that used below.
The first part of the analysis requires some showing that the defendant was prosecuted while others similarly situated were not. There is nothing in the record to suggest that the initial state prosecution was unique or that other persons arrested for growing marijuana were not prosecuted. Appellant asserts selective prosecution by the federal government because, "with the exception of one other case, he and his former co-defendants were the only persons prosecuted for marijuana cultivation by the United States Attorney's office."
The district court held a limited hearing 14 at which the United States Attorney, Richard Cohen, testified that violations of concurrent federal and state drug laws were prosecuted at the federal level only if referred to his office by the state prosecutor. The United States Attorney accepted all cases referred to his office for prosecution under federal law, if he considered that a prima facie violation had been shown. Based on this testimony, the district judge properly concluded that the "defendant ... failed to allege facts suggesting that the federal prosecutor ha[d] declined to proceed against others similarly situated".
B. Additionally, Bassford alleges that his case was "selectively referred" for federal prosecution. The district court held that without a showing of complicity between the federal and state prosecutors, any improper selection attributable to the state prosecutor's referral could not be imputed to the federal prosecution. 15
The defendant asserts that United States v. Ng, 16 supports the proposition that the acts of one sovereign may be attributed to a second sovereign that has "acted as a tool" of the first. 17 The defendant contends that by passively accepting referrals from the state prosecutor, the federal prosecutor was a "tool" of the state prosecutor; therefore, a selective prosecution resulted from the improper referral.
Bassford's reliance on Ng for this proposition is misplaced. There, a criminal defendant claimed that a federal prosecution seeking stiffer penalties, initiated after a plea bargain with a state prosecutor for a lesser included offense of the equivalent state law, constituted vindictive prosecution. Vindictive prosecution occurs when the actions of the judge or prosecutor somehow punish a defendant for exercising constitutional or statutory rights during the prosecution. 18 The Court of Appeals for the Second Circuit has held that "the conduct of two independent sovereigns does not lend itself to the concept of vindictive prosecution." 19 The Ng court relied on the doctrine of dual prosecution, which permits both the state and the federal...
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