US v. Benish
| Decision Date | 13 January 1992 |
| Docket Number | Crim. No. 91-182. |
| Parties | UNITED STATES of America v. Garry R. BENISH. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Carolyn J. Bloch, Asst. U.S. Atty., for U.S.
James A. Ashton, Pittsburgh, Pa., for Garry R. Benish.
Judge Edward Becker has noted that "the business of judging is line drawing, and in this context it is not clear just where the line should be drawn." Matter of Special Federal Grand Jury, 809 F.2d 1023, 1030 (3d Cir.1987). In this case, we are called upon to draw the line between where the curtilage ends and the open fields begin. If we were writing on a clean slate, we would draw that line on behalf of the citizen and conclude that the warrantless search and seizure of a marijuana plant on private property by a member of the Pennsylvania Army National Guard requires suppression of the evidence. However, we are required to apply the rules of law promulgated by the highest court of this Republic regardless of our personal views.1 The motion of defendant, Garry Benish, to suppress the evidence seized on July 1, 1991, at his farm in Armstrong County, Pennsylvania, will be denied.
The Pennsylvania State Police received information from an employee of an electric utility company concerning the abnormal consumption of electricity at a farm near Kittanning, Pennsylvania. Trooper, Jeffrey Rood, disguised as an employee of the utility company, went to the farm to investigate what he suspected was a methamphetamine laboratory. No one was home but the trooper observed that the windows on the basement and first floors of the residence were covered. He then concluded that the owner was growing marijuana. The state police obtained a copy of the deed and learned that Garry Benish was the owner of the farm consisting of approximately 10 acres.
A squad of Pennsylvania Army National Guardsmen were ordered to active duty to conduct surveillance under the command of Lieutenant Ross Gammon. Lt. Gammon set up a command post in a nearby church and the squad of Guardsmen in military fatigues took up positions in the woods on and adjacent to the Benish farm, at 6:00 p.m., on June 27, 1991. The record is unclear concerning their precise location but they were instructed to maintain surveillance throughout the night and keep out of sight by day. There is no evidence that the Guardsmen had permission from any property owner to bivouac on their land.
On June 28, 1991, Guardsman, Joshua Porter was ordered to take up a position on the other side of the residence on the Benish farm but keep out of sight. He testified that he crossed the Benish property and observed a suspected marijuana plant growing approximately 200 meters from the barn. He took a sample and reported the find to his commanding officer. A subsequent field test by the State Police confirmed the finding.
In the meantime, the State Police arranged an overflight of the farm by helicopter, including the commander of the Guardsmen. The helicopter crew observed marijuana growing on the Benish farm and Trooper Rood prepared an affidavit for a search warrant. The warrant was signed by a state court judge on June 30 and a subsequent search of the farm by the State Police and Pennsylvania Army National Guard revealed approximately 900 marijuana plants in various stages of growth. Some were growing within the house and others were located on the property. Samples of the plants were taken and the state court approved destruction of the remaining plants on July 1, 1991. Defendant was indicted in this court on December 10, 1991.
Defendant's challenge to the overflight of the farm as an alleged invasion of his expectation of privacy must be rejected. The police and the militia had the right to fly over the farm at an altitude of 2000 feet, and the Supreme Court has held that intrusion of the public navigable airspace does not violate the Fourth Amendment. California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). However, the Court emphasized that such observations must take place from a public vantage point, that is, where the public has a right to be. Id. at 213-215, 106 S.Ct. at 1812-14. Neither the public nor the employees of the government have the right to intrude upon private property to gather incriminating evidence without a search warrant, unless the property is an open field. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1983); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).
As the dissent in Oliver predicted, most citizens would be surprised to learn that the protections of the Fourth Amendment begin at their "curtilage" rather than their property lines, and most citizens of Western Pennsylvania would be shocked to learn that the Pennsylvania Army National Guard can be ordered to active duty to conduct surveillance at a farm in Armstrong County, and bivouac on private property without the consent of the owner.
In United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1986), the Supreme Court promulgated a four prong test to determine extent of curtilage questions. The Court held that lower courts should consider (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passerbys. Id. at 301, 107 S.Ct. at 1139.
Applying that test to the instant case, we hold that the positioning of Pennsylvania Army Guardsmen on defendant's property for surveillance and the warrantless search and seizure of a marijuana plant growing at least 200 meters from the barn do not violate the Fourth Amendment. Here, the plant was growing at a greater distance from the residence than the barn was located in Dunn. The marijuana plant was not found in an enclosed or posted area of the Benish farm; rather, it was growing in an open area when discovered by the Guardsman. Finally, Garry Benish had not taken steps to shield...
To continue reading
Request your trial
-
U.S. v. Benish
...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 ......