U.S. v. Malbrough

• Decision Date: 28 December 1990
• Docket Number: 90-1180,Nos. 90-1062,s. 90-1062
• Citation: 922 F.2d 458
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Michael Allen MALBROUGH, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 458

922 F.2d 458

UNITED STATES of America, Appellee/Cross-Appellant, v. Michael Allen MALBROUGH, Appellant/Cross-Appellee.

Nos. 90-1062, 90-1180.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 16, 1990.

Decided Dec. 28, 1990.

Alfredo Parrish, Des Moines, Iowa, for appellant/cross-appellee.

Kevin E. VanderSchel, Des Moines, Iowa, for appellee/cross-appellant.

Before LAY, Chief Judge, and JOHN R. GIBSON and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Michael Allen Malbrough appeals from his conviction of manufacturing marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(vii) (1988). Malbrough argues that the district court erred by (1) failing to suppress the search of his greenhouse, (2) denying his motion to dismiss because of the destruction of evidence, (3) denying his motion for a new trial based on alleged prejudicial comments during the government's closing argument, and (4) refusing to give a "possession" jury instruction and an instruction regarding the destruction of evidence. The government cross appeals, arguing that the district court erred in imposing a burden of clear and convincing evidence for sentencing purposes and in failing to find the existence of more than 100 marijuana plants so as to require a mandatory sentence. We affirm the judgment of the district court. ¹

In April 1989, Timothy Kelley was a suspect in a burglary in Burlington, Iowa. The police refrained from filing burglary charges against Kelley in exchange for his assistance in making three narcotic purchases. Kelley assisted the police in four attempted narcotic purchases.

In early June, Kelley learned that an individual was growing marijuana in a greenhouse located somewhere on Gear Avenue in West Burlington. After hearing this information, Kelley went to Gear Avenue and walked through woods next to Malbrough's property. He testified that after seeing what appeared to be a greenhouse, he went on Malbrough's property, looked through open doors of a greenhouse and observed a number of marijuana plants. After being seen by an individual, Kelley immediately left Malbrough's property. ²

Kelley telephoned Detective Rick Rahn to tell him what he had observed. After receiving this information from Kelley, Rahn chartered an airplane and flew over the Malbrough residence. His aerial observations were consistent with Kelley's description of the property.

Based on the information provided by Kelley and on his observation of the greenhouse by air, Detective Rahn applied for a warrant to search Malbrough's greenhouse. The affidavit in support of the application recited that the information in the affidavit was provided by a confidential informant who had previously given Rahn reliable information, had no motivation to falsify the information, had no known association with known criminals, and no criminal record. Unbeknownst to Detective Rahn, Kelley was also allegedly involved in criminal activities in Kentucky. In August 1989, an indictment was returned against him for impersonating a police officer on March 16, 1989, and committing several burglaries in late March of 1989.

The search warrant was approved and the search was executed on June 9, 1989. The police officers seized the contents of the greenhouse, including a number of marijuana and tomato plants. The greenhouse was equipped with sophisticated hydroponic growing equipment, including an irrigation system and special 1000 watt rotating lights.

Police arrested Malbrough for manufacturing a Schedule I controlled substance. After his arrest, Malbrough consented to a search of his automobile, residence, and the surrounding property. Police discovered literature about methods of growing marijuana, greenhouse operations, and three Polaroid photographs depicting marijuana growing inside the greenhouse. The search of the Malbrough residence revealed a wireless intercom system between a bedroom and the greenhouse.

On the same day, an assistant county attorney requested an order from the Des Moines County Court allowing officers to sample, inventory, and photograph the plants seized from Malbrough's residence, and to destroy those marijuana plants not preserved as evidence. One day later, a Des Moines county judge ordered officers to take random samples, photograph and inventory all plants seized, and to file a return of the same with the court. A police officer inventoried the plants, finding 163 "mature or semi mature plants" and 145 "starter plants." Except for the random samples taken, all plants were immediately destroyed. The samples tested were all marijuana.

At trial, Malbrough admitted growing marijuana but maintained that he did so only because he was despondent over his wife's recent suicide. ³ Testimony established that Malbrough constructed the greenhouse three years before for his wife who had an interest in botanical gardening, especially growing tomatoes. Malbrough hotly contested the number of marijuana plants seized from his property alleging that a number of the plants seized were tomato plants and marijuana and tomato cuttings. Expert witness testimony established that a "cutting" is not a plant in the legal or technical sense until it develops its own root system.

Malbrough was found guilty of manufacturing marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(vii). At sentencing, the district court found that Malbrough manufactured 75 marijuana plants and sentenced him to 12 months in prison. Malbrough now appeals and the government cross appeals presenting the issues we have enumerated above. We address these arguments in turn below.

I.

Malbrough argues that the district court erred in holding that there was a legal search of his property. Malbrough first contends that Kelley was a professional informant who learned about the marijuana by trespassing on Malbrough's property while under standing orders from the police department to make contact with people for narcotic purchases. Malbrough contends that Kelley's trespass constituted an unlawful search of his property.

Malbrough acknowledges that trespassing by a private citizen does not constitute a search or seizure within the context of the fourth amendment unless the informant is an agent or instrument of the government. United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984). Malbrough urges, however, that Kelley was a "professional informant" working in concert with the Des Moines county authorities, and thus, qualified as an "agent or instrument" of the government.

In determining whether a private citizen is an agent of the government, two critical factors are "whether the government knew of and acquiesced in the intrusive conduct," and "whether the party performing the search intended to assist law enforcement officials or to further [the informant's] own ends." United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982). Other considerations are whether the informant performed the search at the request of the government and whether the government offered a reward. United States v. Koenig, 856 F.2d 843, 847 (7th Cir.1988).

Malbrough contends that Kelley was much like the informant in United States v. Walther, 652 F.2d 788 (9th Cir.1981). In that case, the Ninth Circuit held that evidence gained as a result of an airline employee's search of a suspicious suitcase should have been suppressed because the informant had "no motivation other than the expectation of reward for his ... efforts." Id. at 793. In Walther, however, the government routinely paid the informant for searching and locating drugs, and the informant conducted such searches with the government's knowing acquiescence. Id. These are not the facts before this court. Here, the police directed Kelley to do nothing more than participate in narcotic purchases. Indeed, no evidence exists that the police asked Kelley to seek out manufacturers of marijuana or even knew of Kelley's entry on Malbrough's property until after it occurred. Kelley testified that he learned about Malbrough's greenhouse from conversations at a local bar and told Rahn about the greenhouse only after he went to Malbrough's property. Rahn also testified that he did not direct, authorize or even know about Kelley's entry on Malbrough's property until after it occurred. Accordingly, no evidence exists that Kelley entered Malbrough's property " 'with government knowledge and consent, tacit or explicit ...,' " United States v. Wedelstedt, 589 F.2d 339, 346 (8th Cir.1978), cert. denied, 442 U.S. 916, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979) (quoting United States v. Mekjian, 505 F.2d 1320, 1328 (5th Cir.1975)); United States v. Luciow, 518 F.2d 298, 300 (8th Cir.1975). We are satisfied that Kelley did not act as an agent or instrument of the government, and that his entry on Malbrough's property did not violate Malbrough's fourth amendment rights. Accordingly, the court did not err in failing to suppress evidence seized from Malbrough's greenhouse.

Malbrough next argues that the district court erred in failing to suppress the evidence seized from his greenhouse because the application for the search warrant contained false and misleading information. The affidavit in support of the search warrant application recited that the confidential informant had "no motivation to falsify the information," "no known association with known criminals," and "no known criminal record." In light of Mr. Kelley's alleged criminal activities in Kentucky and his being under suspicion for the Iowa burglary, these statements were arguably false and misleading. Nevertheless, the warrant is not fatally defective unless Detective Rahn deliberately or recklessly made false statements in the affidavit. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978); United States v. Lee, 743 F.2d 1240, 1245 (8th Cir.1984). Here, the district court's finding that Rahn did not...