US v. Dougherty
| Decision Date | 06 June 1989 |
| Docket Number | No. 89-CR-9-C.,89-CR-9-C. |
| Citation | 774 F. Supp. 1181 |
| Parties | UNITED STATES of America, Plaintiff, v. John F. DOUGHERTY, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Jeffrey Anderson, Asst. U.S. Atty., Madison, Wis., for plaintiff.
Charles W. Giesen, Madison, Wis., for defendant.
This case is before the court on defendant's objections to the Report and Recommendation entered herein by the United States Magistrate on May 25, 1989. The magistrate recommended denial of defendant's motions to suppress evidence derived from the seizure of 700 alleged marijuana plants and to dismiss the indictment on the ground the law enforcement officials intentionally destroyed the vast majority of plants in violation of defendant's right to potentially exculpatory evidence.
From my review of the objections, the magistrate's report, the parties' briefs, and the transcripts of portions of the evidentiary hearing, I conclude that the magistrate's recommendation should be adopted, as well as his proposed findings of fact and conclusions of law.
Defendant urges that the findings of fact be amended to add as a fact that his witness, Professor Davis, was unable to determine from the examination of either the videotape or the photographs of the seized plants whether they were marijuana. However, defendant has not filed the transcript of Professor Davis's testimony from which I could confirm that he did make that statement, and that it was uncontradicted. His failure to do so does not affect the outcome of the motions; even if I were to find that the videotapes and photographs were insufficient to allow a scientist to make a determination of the plants at issue, it would not follow that dismissal of the indictment is warranted.
As the magistrate made clear in his report, the test for determining the effect of destruction or loss of evidence by the prosecution is whether the government's failure to preserve the evidence is the result of bad faith, and in addition, whether the lost or destroyed evidence is of likely significance to the defendant's case. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). The magistrate found no evidence of bad faith on the part of the state officials who made the seizure, and defendant has shown no reason to dispute that finding by the magistrate. He found also that any exculpatory value the plants might have had would not have been known to the officers when they arranged for their destruction. And he pointed out that the loss of the evidence provides defendant an opportunity to attack the sufficiency of the evidence against him. It is the government that bears the burden of proving the existence of the 100 plants that would support an enhanced penalty; without those plants and with deficient photographs and videotapes and the testimony of persons who probably lack scientific training in the identification of marijuana plants, the government may well feel the loss of the plants more than the defendant.
Defendant objects to the magistrate's proposed conclusion that the seizure of the marijuana without a warrant was unconstitutional, but he does not expand upon the arguments he made in the briefs he filed with the magistrate. Nothing in the magistrate's treatment of this issue requires further discussion; it is clear that defendant had no expectation of privacy that would have prevented the warrantless seizure of marijuana from the fields beyond the curtilage of his home.
IT IS ORDERED that the findings of fact and conclusions of law proposed by the United States Magistrate in the Report and Recommendation entered herein on May 25, 1989, are ADOPTED as the court's own and the defendant's motions to dismiss the indictment and to suppress the evidence of 700 growing plants seized from him on September 7, 1988, are DENIED.
Filed May 26, 1989
JAMES GROH, United States Magistrate.
In an indictment returned on January 18, 1989, defendant John F. Dougherty is charged with one count of possessing with intent to distribute one hundred marijuana plants in violation of 21 U.S.C. § 841(a)(1). The possession of 100 or more plants is subject to the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(C) (1987 Supp.). Defendant moves to suppress evidence derived from the seizure of 700 growing plants, alleged to be marijuana, from a cornfield on his farm on the grounds that they were seized without a warrant in violation of his Fourth Amendment rights. (Dkt. ## 10, 20) He also moves to dismiss the indictment on the grounds that law enforcement officers intentionally destroyed the vast majority of those plants in violation of his due process right to potentially exculpatory evidence. (Dkt. ## 13, 22)
Evidentiary hearings were held at which the government presented the testimony of Special Agents John Palmer and David Matthews of the Wisconsin Department of Justice, Division of Criminal Investigation (DCI) and Professor Hugh Iltis, a taxonomist. Defendant presented the testimony of Iowa County Sheriff Nicholas Basting, Sheriff's Deputy Robert Crist and Professor Jerry Davis, a botanist.
The first motion attacks the warrantless seizure of the plants from defendant's cornfield. As the plants constituted contraband and were situated outside the curtilage of his residence, I conclude that the seizure did not infringe any constitutionally protected privacy interest of defendant. As to the second motion, the alleged misconduct is not chargeable to the federal government, but even if it were, I conclude that the destruction of the plants was not in bad faith within the meaning of Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1989) and United States v. Nesbitt, 852 F.2d 1502 (7th Cir.1988). It will therefore be recommended that both of defendant's motions be denied.
For the purpose of these motions only I find the following facts:
Defendant operates a 155-acre farm in Wyoming Township, Iowa County, Wisconsin. On August 16, 1988 Wisconsin DCI agents conducting aerial investigation observed what appeared to be marijuana growing in the middle of a cornfield on the farm. On August 23, 1988 several agents and an Iowa County Sheriff's Deputy entered the field and, from experience, visually identified at least some of the plants as marijuana.1 DCI agents and Iowa County deputies made further entries onto defendant's land for observations of the field on August 31 and September 2, 1988.
The field was located more than one-fourth mile from defendant's residence. The agents were trained in the visual identification of marijuana and observed numerous plants, some up to seven feet high, rising above the surrounding four-foot high corn stalks. The plants grew in five to seven distinct, obviously cultivated, rows of varying length with 100 to 150 plants per row. Many of the plants were quite small.
On the morning of September 7, 1988, approximately twelve DCI agents and Iowa County Sheriff's officers went to defendant's farm and spoke to him. Defendant denied knowing about the plants and told DCI Agent Palmer to get rid of them. He allowed the agents entrance onto the back field and helped them to get to the field. The agents did not have a warrant.
Agent Matthews walked from one end of the patch to the other and took the videotape of it. (Def. Ex. 8) The officers then began uprooting and cutting down all of the plants which were gathered for removal. The evidence officer, Deputy Crist, took and preserved samples, retaining five complete plants and the tops of eight others for evidence and analysis. Monitored by Deputy Crist who counted each plant, the remaining plants were loaded onto county trucks, taken to the Iowa County quarry, and burned. (See photos — Def. Exs. 3 and 4)2
The destruction of the plants was discussed and agreed upon by Sheriff Basting and DCI agents Nickel and Palmer. The prosecution of the defendant in either the state or the federal courts was contemplated at the time the decision to destroy the plants was made. Adequate space existed within the facilities of the Iowa County Sheriff's Department for the secure storage of at least one hundred of the plants.
Immediately following the destruction of the plants, Sheriff Basting and agents Nickel and Palmer went to the Iowa County District Attorney who declined to prosecute the case. Sometime thereafter the agents contacted the United States Attorney's Office for the first time with regard to possible federal prosecution. No federal agents, officers or employees were involved with the investigation, seizure or destruction of the plants.
Defendant contends that the removal of the 700 plants from his farm field was in violation of his Fourth Amendment right to be secure from unreasonable seizures. Defendant concedes that the entry onto his field by law enforcement officers and their resulting observations of the plants were lawful as the field was outside the curtilage of his residence. However, he argues that the seizure itself could only be justified under a warrant or in exigent circumstances, neither of which appear in this case.
As defendant acknowledges, courts have long distinguished between the curtilage immediately surrounding the home and the open fields beyond, which, though still on private property, enjoy no constitutional protection.
"Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. citations omitted Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields." footnote omitted
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