USA. v. Mciver
| Decision Date | 06 August 1999 |
| Docket Number | No. 98-30146,No. 98-30145,98-30145,98-30146 |
| Citation | 186 F.3d 1119 |
| Parties | (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTOPHER MCIVER, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRIAN EBERLE, Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce Gobeo, Gobeo Law Offices, Missoula, Montana; Doreen Antenor, Bailey & Antenor Law Offices, Missoula, Montana, for the defendants-appellants.
Kris McLean, Assistant United States Attorney, Missoula, Montana, for the plaintiff-appellee.
Appeals from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding. D.C. No. CR-97-00058-2-DWM.
Before: Arthur L. Alarcon, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges.
Christopher McIver ("McIver") and Brian Eberle ("Eberle") appeal from the judgment entered following their conviction by a jury for conspiracy to manufacture marijuana in violation of 21 U.S.C. S 841(a)(1).
We must decide for the first time whether the placing by law enforcement officers of a magnetized electronic tracking device on the undercarriage of a vehicle is an unreasonable search and seizure.
McIver and Eberle contend that the district court erred in denying their motions to suppress evidence, in ruling on their objections to the admissibility of evidence, and in its instructions to the jury. They also argue that the evidence was insufficient to support their conviction, and that the district court erred in its sentencing decision.
We affirm because we conclude that the district court did not err in rejecting each of these contentions.
The evidence at trial viewed in the light most favorable to the Government revealed the following facts:
On or about July 8, 1997, United States Forest Service officers at the Kootenai National Forest became aware that six transplanted marijuana plants were being cultivated in a grow site in the Sunday Creek area. These plants were destroyed by members of the Northwest Drug Task Force because they did not have the resources to conduct a surveillance.
On July 30, 1997, Special Agent Lorney Jay Deist received a report from a United States Forest Service hydrologist that he had observed a marijuana plant growing in the same site in the Sunday Creek area. Special Agent Deist was the supervisor of ten Forest Service law enforcement officers assigned to the Kootenai National Forest.
On the same date, Special Agent Deist and Forest Service Law Enforcement Officer Joel Young accompanied the hydrologist to the Sunday Creek area. The officers found four marijuana plants. Special Agent Deist assumed from the quality of the plants that the person who was growing them had planted similar gardens in the immediate area. Special Agent Deist observed that the marijuana plants had been transplanted because the soil around them was not from that area. The area was tilled to receive the plants and had been amended with peat moss and fertilizer.
Special Agent Deist determined that because he had only ten law enforcement officers under his command, it would not be feasible to station them to conduct a surveillance of the site in order to learn the identity of the persons responsible for growing the plants. Instead, on August 1, 1997, he installed video and still cameras to photograph persons who approached the area where the plants were growing. The unmanned cameras were motion activated.
Among the vehicles photographed at the site was a white Toyota 4Runner truck. The Toyota 4Runner had unique pink spots on the side. On or about August 17, 1997, McIver was photographed near the marijuana plants accompanied by a person with dark hair. On September 12, 1997, McIver was photographed bending over the marijuana plants, and holding a camera near the plants. On September 18 1997, Special Agent Deist observed a Toyota 4Runner that looked similar to one photographed by one of the Sunday Creek surveillance cameras. He followed the Toyota 4Runner to the Burlington Northern Roundhouse. The vehicle was parked in the employees' parking lot. When the driver stepped out of the vehicle, Special Agent Deist observed that he looked very similar to one of the persons captured on film at the Sunday Creek marijuana garden. Special Agent Deist traced the registration of the vehicle through law enforcement channels from its license plate. It was registered to Christopher McIver, whose residence was listed at 844 1st Avenue West, Kalispell, Montana. On September 19, 1997, a person wearing a long ponytail hair style was photographed near the marijuana plants.
After obtaining this information, Office Deist drove to McIver's residence. There, he observed a maroon Chevy Nova. By tracing its license number, he learned that it was registered to Brian Eberle, whose residence was listed as 844 1st Avenue West, Kalispell, Montana. An officer who had the residence under surveillance noted that Eberle wore a long ponytail, and that he drove the Chevy Nova.
During the last half of September, 1997, Special Agent Deist noticed that the buds on the marijuana plants in Sunday Creek had matured. He was aware from his prior training and experience that frost makes the THC substance in marijuana more active and "go to the bud." When that occurs, it is time to harvest the plant. Because the buds had matured, Special Agent Deist concluded that the marijuana plants at Sunday Creek would be harvested after September 23, 1997.
At 3:30 a.m. on September 23, 1997, Special Agent Deist and Officer Billy Stewart placed two magnetized tracking devices on the undercarriage of the Toyota 4Runner registered to McIver. One of the devices was a global positioning system. The other was a Birddog 300 electronic transmitter that sends a weak signal or a "beep" to an audio unit ("monitor") installed in the officer's vehicle. When the monitoring vehicle gets close to the transmitter, the signal received in the audio unit becomes stronger. The monitor also contains a 180 degree dial with a needle that points in the direction of the transmitter. When the tracking devices were placed on the Toyota 4Runner, it was parked in the driveway in front of McIver's garage, outside the curtilage of the residence.
The global positioning system malfunctioned after three days. Using the monitor, the officers tracked McIver from September 23, 1997 to October 2, 1997 as he traveled from his home to the Burlington Northern Roundhouse.
On October 2, 1997, United States Forest Service Law Enforcement Officer Keith Granrud observed the Toyota 4Runner leave the residence at approximately 8:40 p.m. Officer Granrud notified Special Agent Deist.
Special Agent Deist directed Officer Young to station himself near the intersection of Highway 93 and the Radnor Creek access road to the Sunday Creek area. Special Agent Deist then proceeded to Highway 93. Using the monitor, he located the Toyota 4Runner driving north on Highway 93 towards the Radnor Creek junction. At 9:30 p.m., Officer Young observed the Toyota 4Runner turn off on the Radnor Creek access road. Special Agent Deist and Officer Young drove north of the Radnor Creek turn-off to a location within a mile of the Sunday Creek site.
By monitoring the signal from the Birddog 300 electronic tracking device, the officers determined that the Toyota 4Runner was in the vicinity of the marijuana garden. The officers returned to the Radnor Creek turn-off for Highway 93.
The video surveillance cameras photographed two persons harvesting the marijuana plants and stuffing them into shiny plastic bags. At 10:30 p.m., the monitor received a new signal from the Birddog 300 electronic tracking device indicating that the Toyota 4Runner was moving. At 10:35 p.m., the officers observed the Toyota 4Runner turn onto Highway 93 and head south towards Kalispell.
Special Agent Deist directed Officer Young to check the marijuana plants to determine their present condition. Officer Young discovered that each of the plants had been pulled out from the ground or cut off near ground level. Special Agent Deist alerted Officer Stewart, who was on surveillance duty at the McIver/Eberle residence that the Toyota 4Runner appeared to be returning to that location.
From an alley opposite the McIver/Eberle residence, Officer Stewart observed the Toyota 4Runner drive up and park in front of the garage at 11:50 p.m. Officer Stewart observed that McIver was the driver and Eberle was his passenger. McIver and Eberle removed large plastic bags from the back of the Toyota 4Runner. The bags were bulky. Stems or rods protruded from the top. McIver and Eberle carried the bags into the house.
At approximately 12:30 a.m., the officers, led by Special Agent Deist, entered the McIver/Eberle residence without a warrant. Eberle and McIver were arrested. The officers conducted a protective sweep of the residence for weapons or cohorts of the arrestees. They observed in plain view cut marijuana and firearms in one bedroom, and a sophisticated grow operation in the basement - including 63 marijuana plants, potting soil, fans, heat lamps, and chemical sprays.
After the protective search, the house was sealed off until a search warrant could be obtained. A search warrant was executed at the McIver/Eberle residence at 1:00 p.m. on October 3, 1997. The officers seized the marijuana plants they had previously observed during the protective sweep of the house.
On the morning of October 3, 1997, several officers returned to the Sunday Creek site and removed what remained of the marijuana plants. This evidence was introduced at trial.
The Toyota 4Runner was impounded. On October 4, 1997, it was subjected to an inventory search. Evidence seized during the search and admitted at trial included a small quantity of marijuana...
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