U.S. v. Benish

• Decision Date: 13 September 1993
• Docket Number: No. 92-3311,92-3311
• Parties: UNITED STATES OF AMERICA v. Garry R. BENISH, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 20

5 F.3d 20

UNITED STATES OF AMERICA v. Garry R. BENISH, Appellant.

No. 92-3311.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1

Sept. 13, 1993.

Decided Sept. 16, 1993.

Peter Goldberger, Pamela A. Wilk, and James H. Feldman, Jr., Law Office of Peter Goldberger, Philadelphia, PA, for appellant.

Thomas W. Corbett, Jr., U.S. Atty. and Paul J. Brysh, Asst. U.S. Atty., Pittsburgh, PA, for appellee.

Before: SLOVITER, Chief Judge, MANSMANN and GREENBERG, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

This appeal arises out of a judgment of conviction and sentence in a criminal case against Garry R. Benish for possession with intent to distribute in excess of 100 marijuana plants in violation of 21 U.S.C. Sec. 841 (1988). Defendant Benish appeals the denial of his motion to suppress the evidence of the marijuana plants seized from his farm and the district court's refusal to grant a downward departure in sentencing. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

I. FACTS AND PROCEDURAL HISTORY

On June 21, 1991, an employee of Central Electric Cooperative, Inc., an electric utility company, informed the Pennsylvania State Police that there had been an abnormal consumption of electricity at a farm in Sugarcreek Township and that the electricity had been turned off due to nonpayment. The employee also informed the police that the doors and windows of the residence were covered with dark plastic.

Based on this information, Trooper Jeffrey Rood, an employee of the Pennsylvania State Police, suspected the operation of a methamphetamine laboratory. Rood visited the property with a utility company employee (who intended to turn the electricity back on because the bill had been paid). Rood intended to disguise himself as another utility company employee, if necessary. While at the farm, Rood knocked on the door of the residence (a trailer that had been turned into a permanent structure) but no one answered. Rood walked around the trailer structure and observed the dark plastic covering the windows.

As a result of his visit, Rood believed that marijuana was being grown inside the house. He then began and coordinated an investigation, using the Pennsylvania Army National Guard.

On June 27, 1991, a squad of guardsmen, under the command of Lieutenant Ross Gammon, took up positions in the woods near the farm to conduct surveillance. ¹ Gammon set up a command post in a nearby church. The next day, Joshua Porter, one of the guardsmen, was ordered to take a position on the other side of the Benish residence. In crossing the Benish property, Porter observed what he suspected to be a marijuana plant. After reporting back to Lieutenant Gammon and receiving instructions, Porter returned to the plant and took a sample, which a field test confirmed was marijuana.

On the same day, the State Police arranged an overflight of the farm by helicopter. Agent Fred Neal of the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigation and Drug Control, Gammon and Trooper Leonard Lapato were on the flight. From an altitude of 2000 feet, Lapato observed marijuana growing on the farm. Gammon testified that he did not observe any marijuana but that he was "no expert." App. at 193. The overflight was ordered before the seizure of the marijuana plant by Porter, but it actually took place after the field test was completed.

After the seizure and the overflight, Neal and Rood prepared an affidavit in support of probable cause for a search warrant. The warrant was signed by a state court judge on June 30, 1991. In a search of the farm and the residence pursuant to the warrant on July 1, 1991, over 900 marijuana plants were discovered. Some plants were seized for samples and evidentiary purposes and the remaining plants were destroyed.

Also on July 1, 1991, Benish was arrested pursuant to an arrest warrant. He was initially charged with state offenses, but on October 2, 1991, he was indicted by a federal grand jury for the same conduct, and the state information was nolle prossed.

On October 25, 1991, Benish filed both a motion to suppress the evidence seized from his property and a motion to dismiss the indictment. After a hearing, the district court denied both motions. See United States v. Benish, 782 F.Supp. 35 (W.D.Pa.1992).

On January 21, 1992, Benish entered a conditional plea of guilty to possession with intent to distribute in excess of 100 marijuana plants, in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 841(b)(1)(A)(vii) (1988), expressly reserving his right to challenge on appeal the district court's denial of his motion to suppress evidence and his motion to dismiss the indictment.

On February 21, 1992, Benish filed a motion challenging the applicable portion of section 2D1.1 of the United States Sentencing Guidelines as unconstitutional. On February 28, 1992, Benish filed his objections to the presentence investigation report, contesting several of its factual findings, including the application of section 2D1.1. After a hearing, the district court denied Benish's motion challenging the constitutionality of section 2D1.1, a ruling Benish has not appealed.

At the sentencing hearing, the district court adopted the presentence report's count of 940 plants which resulted in a base offense level of 30. The district court reduced the base offense level by 2 for acceptance of responsibility, resulting in a total offense level of 28. The guideline range (based on a Criminal History Category of I) was 78-97 months imprisonment. The district court sentenced Benish to the minimum 78 months, noting on the sentencing form that the sentence was "solely due to the guidelines." App. at 487. At the sentencing hearing the district judge commented that he believed the sentence "was harsh and perhaps unreasonable," but concluded that Benish's argument that "the guidelines fail to address the sex and age of the marijuana plants" did not provide a basis for a downward departure. App. at 476-77. Benish filed a timely appeal.

II. DISCUSSION

On appeal, Benish argues (1) that the warrantless seizure of the first marijuana leaf by Porter as he crossed the Benish property and the subsequent seizures of the marijuana plants pursuant to warrant violated the Fourth Amendment; (2) that the use of the Pennsylvania National Guard violated federal law; and (3) that the district court's refusal to grant a downward departure was based on an erroneous view of its own discretion.

A. Legality of Seizure

Benish argues that the sample leaf was illegally seized because the plant from which it was taken was located within the curtilage of Benish's residence and not in an "open field" where a warrantless seizure is constitutional. Benish asserts that the scope of the "curtilage" of a particular residence is a mixed question of law and fact, and therefore that our review is plenary. The question whether the extent of curtilage is a question of fact or law is unresolved by this court. In a recent case, we assumed without deciding that the extent of curtilage was a question of fact subject to clearly erroneous review. See United States v. Acosta, 965 F.2d 1248, 1255, 1257 (3d Cir.1992). ² We have not considered this question in any decision since Acosta, but other courts of appeals have concluded that the district court's determination of curtilage is a factual determination subject to review only for clear error. See, e.g., United States v. Traynor, 990 F.2d 1153, 1156-57 (9th Cir.1993); United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993); United States v. Hatch, 931 F.2d 1478, 1480 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 235, 116 L.Ed.2d 191 (1991); United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1297 (7th Cir.1976), cert. denied, 431 U.S. 930, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977). We agree with these courts that the question of the extent of curtilage is "essentially factual," Traynor, 990 F.2d at 1156, and therefore we review only for clear error.

In United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987), the Supreme Court held 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." It listed four factors as relevant to this inquiry: (1) "the proximity of the area claimed to be curtilage to the home"; (2) "whether the area is included within an enclosure surrounding the home"; (3) "the nature of the uses to which the area is put"; and (4) "the steps taken by the resident to protect the area from observation by people passing by." Id. at 301, 107 S.Ct. at 1139.

The Court explained that the four factors did not, when combined,

produce[ ] 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.

Id. Thus, for example, in Acosta we decided that certain of the Dunn factors, which were derived in a case concerning the location of a barn on farm land, "may be less determinative in a city setting" and as applied to apartment dwellings. 965 F.2d at 1256.

The district court considered the four Dunn factors and concluded that the marijuana plant was not located within the curtilage of Benish's residence, and hence the seizure of the leaf did not violate the Fourth Amendment. Benish has not persuaded us that the court erred. We see no reason why the fact that the Benish farm is only 10-acres, as compared to the 198-acre farm in Dunn, is enough to render the Dunn factors of "insignificant value," as Benish argues. The...