United States v. Broadhurst

• Decision Date: 21 June 1985
• Docket Number: No. CR.S-84-156 RAR.,CR.S-84-156 RAR.
• Citation: 612 F. Supp. 777
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. W.N. Daniel BROADHURST, Gregory Dorland, Joseph Arthur Broadhurst, Steven Strong Townsend, Jr., Deborah Dorland, and Beverly Elizabeth Broadhurst, Defendants.

612 F. Supp. 777

UNITED STATES of America, Plaintiff, v. W.N. Daniel BROADHURST, Gregory Dorland, Joseph Arthur Broadhurst, Steven Strong Townsend, Jr., Deborah Dorland, and Beverly Elizabeth Broadhurst, Defendants.

No. CR.S-84-156 RAR.

United States District Court, E.D. California.

June 21, 1985.

COPYRIGHT MATERIAL OMITTED

Doug G. Hendricks, Asst. U.S. Atty., Sacramento, Cal., for U.S.

James Larson, Larson & Weinberg, San Francisco, Cal., Blackmon & Corn, Sacramento, Cal., J. Tony Serra, Serra Perelson & Metcalf, San Francisco, Cal., Paul D. Wolf, Oakland, Cal. (Personally served by CEO 6/21/85), Malcolm S. Segal, Sacramento, Cal. (Personally served by CEO 6/21/85), Charles M. Dresow, San Francisco, Cal. (Personally served by CEO 6/21/85), for defendants.

MEMORANDUM AND ORDER

RAMIREZ, District Judge.

PROCEDURAL HISTORY

On July 11, 1984, defendants were charged by way of Indictment filed in the United States District Court, Eastern District of California, with one count of conspiracy to manufacture and possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. In addition, defendants, W.N. DANIEL BROADHURST, GREGORY DORLAND, JOSEPH ARTHUR BROADHURST, and BEVERLY ELIZABETH BROADHURST, were charged in Counts II and III of the Indictment with knowingly and intentionally manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and with knowingly and intentionally possessing with intent to distribute 553 marijuana plants in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

On October 19, 1984, the undersigned issued an Order for Briefing Schedule which required defendants' counsel to file non-dispositive and dispositive motions, as well as appeals from the ruling of the United States Magistrate, within a specified period of time. In response, defendants filed non-dispositive motions to sever, to disclose grand jury materials, joinder, discovery, and for an adjudication on the admissibility of co-conspirator statements. Dispositive motions were filed in the form of motions to suppress evidence and statements, to dismiss, to discover identification of confidential informant, and for an evidentiary hearing on the basis of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

On February 6, 1985, the Court issued an intended decision from the bench in regard to defendants' motions to dismiss and to disclose identity of confidential informant, as well as defendants' appeals from the ruling of the Magistrate in regard to various non-dispositive motions. As to the motions to suppress evidence and statements, for evidentiary hearing pursuant to Franks v. Delaware, and for adjudication of the admissibility of so-called co-conspirator statements, the matter was continued to February 20, 1985, at which time a hearing was commenced on the limited issue of the affiant's veracity in executing the affidavit in support of search warrant.¹

On March 6, 1985, the Court ordered supplemental briefing on the issue of aerial overflights and continued the matter to April 12, 1985, at which time additional evidence was adduced and the matter was deemed submitted without benefit of oral argument. The Court continued the matter to May 23, 1985 for final decision and thereafter to June 21, 1985 for ruling on the motion to suppress which included the motion to dismiss/suppress on the basis of Franks v. Delaware.

FACTUAL BACKGROUND

The evidence underlying the charges against the six defendants stems from a search conducted August 17, 1982 of a greenhouse, a shed, and a residence located at 17172 Lague Road, Yuba County. The search in question was made pursuant to a California state warrant obtained on August 12, 1982 by officer James Lovoi of the Sutter County Sheriff's Department. Information contained in the affidavit indicates that on January 21, 1982, officer Lovoi and Drug Enforcement Administration (DEA) agent Del Polish met with a citizen-informant who advised that while deer hunting during the previous October or November, the informant had seen a large greenhouse full of six feet tall marijuana plants. The informant also advised that sleeping bags were seen on trails immediately around the greenhouse, but that no one was seen attending the marijuana plants.

Armed with this information, the officers and the informant traveled to the Lague Road property in Yuba County where the informant pointed out a residence which the informant advised was adjacent to the greenhouse spotted previously in October or November of 1981. Additionally, the informant pointed to a large green-sided shed partially hidden by trees, which was located approximately seventy five yards in a north-easterly direction from the main residence.² After making these observations, the officers and the informant left the area.

In April 1982, Yuba County deputy sheriff Mike Williamson told officer Lovoi that an informant who wished to remain anonymous had told Williamson that while deer hunting during the 1981 season with a friend, the informant had seen "marijuana gardens around some greenhouses on Lague Road." The informant further advised that he/she was upset because nothing was being done about the cultivation and the Sheriff's Department had not been patrolling the area.

On May 26, 1982, Lovoi, Bureau of Narcotics Enforcement Agents (BNE) Till and Tellis, and Narcotic Enforcement Team-5 Agent (NET-5) McCormack, went on routine aerial patrol of the Yuba County foothills including the Lague Road area. At an altitude of no less than 1,000 feet the greenhouse previously described was spotted and appeared to be empty inasmuch as "no green plants were visible and white light appeared through the building and at a space at the bottom of the building."

On July 27, 1982, a second routine aerial overflight was made by officer Lovoi, BNE agent Till, and NET-5 agents Peters and Harris. At an altitude of not less than 1,000 feet, officer Lovoi states that he observed green plants in excess of six feet in height inside the suspect greenhouse, the plants being the color and height of which were "consistent with marijuana." At this time Lovoi further observed that the area immediately surrounding the greenhouse did not contain crop-type vegetation, but only natural vegetation.

Subsequent to the July 27, 1982 overflight and prior to the third and last overflight of August 4, 1982, officer Lovoi had cause to investigate the ownership of the Lague Road property, determine who, if anyone, was frequenting the premises, and ascertain that the area on Lague Road near the greenhouse was heavily posted with "no trespassing" signs and fenced with barbed wire. In addition, Lovoi checked with the Yuba County Assessor's Office and found no record of any commercial nursery on the Lague Road property or record of a barn/greenhouse with dimensions matching that of the suspect structure.

On August 4, 1982, Lovoi, together with BNE agent Till and NET-5 agent Garrett, again made aerial observations of the greenhouse and found the greenhouse to contain "green plants estimated to be in excess of six feet in height." Without further investigation, save for the obtaining of a physical description of the residence, officer Lovoi applied for and received a state search warrant on August 12, 1982. On August 17, 1982, the search warrant was executed on the greenhouse and officers discovered and seized approximately 553 marijuana plants, some of which were over eighteen feet tall.

During the course of the Franks v. Delaware hearing, officer Lovoi testified that he has been employed by the Sutter County Sheriff's Department for approximately fourteen years, the last five years of which he had been exclusively assigned to the NET-5 team as a narcotics officer. During the latter portion of his career, Lovoi has investigated or assisted in the investigation of over 100 cases involving the use or cultivation of marijuana and has conducted over thirty aerial sitings of marijuana gardens, all of which have been confirmed after subsequent ground investigation.

BNE agent Till testified that he has been employed with the Department of Justice for approximately seventeen years, and was at all times during the instant investigation the pilot of the three overflights. Till indicated that he has made approximately 10,000 overflights of suspected marijuana gardens and that his positive identifications have never been shown to be inaccurate by subsequent ground investigation. In addition, Till estimates that he has viewed between twenty to fifty greenhouses from the air during the course of his overflight surveillance.

NET-5 agent Peters testified that he was a supervisor of the NET-5 task force at the time of the overflights. During his tenure of approximately seventeen years with the Department of Justice, agent Peters has identified at least 100 marijuana gardens during overflight surveillance which were later confirmed to be marijuana after subsequent ground investigation. Although admitting to extensive experience in the area of marijuana garden identification, Peters testified that prior to the instant siting, he had never participated in an investigation which required aerial observation of a greenhouse.

In describing the purpose of the particular overflights, officers Lovoi and Peters testified that NET-5 was formed in 1980 to assist in the suppression of narcotics activities, that the program consisted of local sheriffs and agents from the State Bureau of Narcotic Enforcement, and that to assist in the suppression activities, the NET-5 team was assigned the use of one airplane which was supplied by the State. In performing so-called "routine aerial surveillance," officer Lovoi testified that frequently the team receives information from confidential, citizen, and anonymous informants concerning the cultivation of marijuana in rural areas. For purposes of verifying the information, the officers conduct aerial surveillance of the...