United States v. Bassford
| Citation | 601 F. Supp. 1324 |
| Decision Date | 28 January 1985 |
| Docket Number | Crim. No. 84-00022-B. |
| Parties | UNITED STATES of America v. Thomas BASSFORD, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
COPYRIGHT MATERIAL OMITTED
Timothy C. Woodcock, Asst. U.S. Atty., Bangor, Me., for plaintiff.
David Sanders, Livermore Falls, Me., for Thomas Bassford.
Gary M. Growe, Lunn & Growe, Bangor, Me., for Kevin Bradley.
J. Hilary Billings, Marshall A. Stern, Bangor, Me., for Richard Bradley.
The defendants are separately charged in a superseding indictment with manufacturing a large quantity of marijuana. They move to suppress certain evidence seized on August 26 and September 3, 1983.
In August 1983 the Maine State Police MSP received a tip from a confidential informant concerning the cultivation of marijuana plants near the residence of defendant Thomas J. Bassford in Salem Township, Maine. On August 25, 1983, after verifying the reliability of the informant, MSP Troopers William Draper and Michael Sperry flew over the Bassford property at an altitude of about 1,000 feet in a small plane piloted by MSP Sgt. Bradford Cochran. During the course of their two passes over the area on August 25, the officers observed four or five plots of vegetation in the generally wooded vicinity of the Bassford residence. The plots were a distinctively brighter green than the surrounding area. Sgt. Cochran considered the bright green coloration of these plots consistent with cultivated marijuana.
On the basis of these aerial observations, Trooper Sperry obtained a warrant from a state court judge on August 26, 1983 to search "property owned by THOMAS J. BASSFORD and NANCY J. BASSFORD."
On the same day 16 officers, including Troopers Sperry and Draper, set out to search the Bassford property in Salem Township. Earlier that day and prior to commencing the search, Trooper Draper had flown over the Bassford property at a lower altitude than the flight of the previous day in an effort to determine the number of persons in the area of the Bassford property.
The Bassford property consists of a heavily wooded 30-acre parcel situated on the slope of Mt. Abraham. Access to the Bassford property is gained by turning off the main road (Route 142) onto a dirt road (Lovejoy Road) for one mile, proceeding over a right-of-way (East-West Road) on property owned by a "Reverend Reid," and then following an even rougher woods road north for about 600 feet through a "gateway" to Bassford's wood-frame home. The property is bordered on the south and east by the Reid property. A portion of the Reid property was the subject of a pending sale to defendant Richard Bradley. The south property line of the Bassford property consists of a rough stone wall topped with two strands of barbed wire along most of its length. There are two openings in the wall: one through which passes the rough woods road leading to the East-West Road; the other, framed with a wooden arch-type gate, through which a cow path leads from the Bassford house to the environs of a small one-room frame building erected by Richard Bradley immediately north of the East-West Road. At 50-feet intervals along the Bassford boundaries and at the gateways "no trespassing" signs were posted. Brush had been piled about four feet high along the east boundary.
Bassford's nearest year-round neighbors lived about one-half mile away. The Carrabassett Airport, from which the previously described overflights began, is located about ten miles away. There are two or three other small airports in the general vicinity.
In order to reach the Bassford house the police officers walked along the "cow path" leading from the East-West Road. In the clearing where the Bassford house is located the police found two "garden" plots of cultivated marijuana. One plot (Plot # 1), containing 49 plants, was located about 10 feet from the Bassford house and the other (Plot # 2), containing 128 plants, was about 100 feet from the house. In another clearing, about 450 feet from the Bassford house and connected to the house by two paths, the officers found another plot (Plot # 3), containing 50 marijuana plants.
In the course of their search of the Bassford house, numerous articles were seized by the officers. Bassford was given a copy of the search warrant, but the copy he received did not include the affidavit to which the warrant makes reference. The police left an inventory of the items seized from the residence.
Because more than three plots had been observed from the air the officers broadened the scope of their ground search. After walking in a southerly direction on a foot path leading to another clearing, the officers found a larger "garden" plot (Plot # 4), containing 640 plants. Plot # 4 was located about 370 feet from the Bassford house and was completely surrounded by woods.
About 100 feet to the south of Plot # 4 they found a small building, built and occasionally occupied by Richard Bradley. The one-room building, approximately 8 feet by 12 feet, was furnished with a kerosene lamp and two mattresses on the floor. Various personal articles and a portable cooler were also located inside the building. Although there was a stand of birch trees between the back of the building and Plot # 4, there was a low swale where the birches did not completely occlude the view of Plot # 4 from the building.
When the officers came upon the Richard Bradley building, its only door was wide open. Outside the building various gardening tools were discovered. The officers entered the building and seized a roll of film found setting on a board inside. The film was later developed by the police. The search of the Richard Bradley building was made in the belief that it was on the Thomas Bassford property, which was the subject of the search warrant.
Continuing their search of the area the officers discovered another garden plot (Plot # 5), containing 49 marijuana plants, located along the south side of the East-West Road about 200 feet east of the Richard Bradley building and situated on the property Richard Bradley was in the process of purchasing from Reid.
After completing the August 26 search, the officers learned from a confidential informant that there were other marijuana plots nearby which had not been discovered. On September 2, 1983, Trooper Draper flew over the property of defendant Kevin Bradley in Salem Township. The flight originated from a Phillips, Maine airport. On his return pass over the Kevin Bradley property, Draper used binoculars to assist his observations from an altitude of 1,000 feet.
On September 3, 1983 a state court judge issued a warrant for the search of the "curtilage" of the property of Kevin Bradley, "described as a one acre lot with a two-story house located on the east side of Lovejoy Road in Salem Township ... six-tenths of a mile from the junction of Lovejoy Road and Route 142." In applying for the warrant, Trooper Draper submitted, inter alia, his own affidavit containing the following averments:
Draper's "prior experience" in aerial identification of marijuana consisted of his participation in the August 25 flight over the Bassford property.
On September 3, 1983, police officers executed the search warrant on the Kevin Bradley property. After entering the driveway through a gate the officers saw and seized a number of items from inside and outside the Kevin Bradley home, including farming implements, drying screens, "roaches," dry marijuana and marijuana "trimmings." The officers also found a plot (Plot # 6), 20 feet by 40 feet in size and containing 378 marijuana plants, which was five feet from the back of the Kevin Bradley house. In the woods, several hundred feet from the Kevin Bradley house, the officers discovered eight more marijuana plants growing in buckets.
Bassford argues that the search of his property pursuant to a search warrant was unlawful because (1) the affidavits submitted in support of the warrant contained information obtained from an unlawful warrantless aerial surveillance of the property, and (2) the warrant was not executed in compliance with the requirements of Fed.R.Crim.P. 41(d) and Me.R.Crim.P. 41(d).
The aerial view of the Bassford Property on August 25, 1983 was made from an altitude of about 1,000 feet. No visual enhancement devices were used, though some photographs were taken. Bassford argues that under the recently decided case of United States v. Oliver, ___ U.S. ___, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the warrantless aerial search of areas within the "curtilage" of his home was unconstitutional.
In Oliver, a divided (6-3) Supreme Court held that the "open fields" doctrine of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), applies to areas "out of doors in fields," even though those areas are secluded and posted with "No Trespassing" signs. The Oliver decision concerned two warrantless ground searches (one in Maine) in the course of which cultivated marijuana had been discovered. In Hester, the Court had held that government intrusion upon open fields is not prohibited by the fourth amendment.
In a portion of the opinion joined by five members of the Court, Oliver discussed the Hester rule in light of the "reasonable expectation of privacy" test laid down in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Noting that...
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Sundheim v. Board of County Com'rs of Douglas County
...lawful observation into an unreasonable search. See United States v. Rucinski, 658 F.2d 741 (10th Cir.1981); cf. United States v. Bassford, 601 F.Supp. 1324 (D.Me.1985), aff'd, 812 F.2d 16 (1st Cir.1987) (use of binoculars to enhance view of readily visible marijuana plants did not constitu......
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State v. Davis
...observed—factors similar to Ciraolo and Riley and factors employed by the district court in this very case. See United States v. Bassford, 601 F.Supp. 1324, 1330 (D.Me.1985) ("[C]ourts have taken a case-by-case approach to the [F]ourth [A]mendment problems implicated by aerial surveillance ......
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People v. Reynolds
...United States v. Taborda, 491 F.Supp. 50 [use of telescope]; see, discussion of factors employed in Federal courts, United States v. Bassford, 601 F.Supp. 1324, 1330). For these reasons, I am persuaded that under governing Federal and State law the order should be reversed and the matter re......
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State v. Davis
...observed—factors similar to Ciraolo and Riley and factors employed by the district court in this very case. See United States v. Bassford, 601 F. Supp. 1324, 1330 (D. Me. 1985) ("[C]ourts have taken a case-by-case approach to the [F]ourth [A]mendment problems implicated by aerial surveillan......