argued submitted seattle washington: May 7, 1993.
Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-92-09-FVS. Fred L. Van Sickle, District Judge, Presiding.
Before: Otto R. Skopil, Jr., Arthur L. Alarcon and Robert R. Beezer, Circuit Judges. Opinion by Judge Alarcon.
Roy L. Barton appeals from the judgment of conviction and the sentence imposed following the entry of his conditional guilty plea to manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). Law enforcement officers discovered a marijuana manufacturing operation in Barton's home during the execution of a search warrant. Barton moved to suppress the evidence seized from his home on the ground that the allegations in the search warrant affidavit concerning the presence of an odor of marijuana at his residence were false. At the time of the suppression hearing, the marijuana plants that were seized by the officers had decomposed due to the officers' failure to place the plants in ventilated plastic bags. Barton contends that the failure to preserve the marijuana plants deprived him of due process, because he was denied access to evidence that would have impeached material allegations in the affidavit for a search warrant.
This case presents the question whether the negligent destruction of evidence that tends to impeach allegations demonstrating probable cause in an affidavit for a search warrant violates due process. We must also decide whether the district court erred by including the male marijuana plants in calculating Barton's sentence under the Sentencing Guidelines. We affirm because there is no evidence that the officers acted in bad faith in placing the marijuana plants in unventilated plastic bags. We further conclude that the district court did not err by failing to exclude the male marijuana plants in calculating Barton's sentence under the Sentencing Guidelines.
PERTINENT FACTS AND PROCEDURAL HISTORY
In December, 1991, an agent from the Drug Enforcement Administration told Detective Bruce Long of the Chelan County Sheriff's Office that Barton had ordered marijuana seeds from a foreign company. Detective Long located Barton's address at the county assessor's office. As part of a separate investigation, law enforcement officers obtained a warrant to search the home of one of Barton's neighbors. While that search was underway, Detective Long, Detective Jeffrey Middleton, and Deputy Steve Worden knocked on Barton's door. When Barton opened the door, both Detective Long and Detective Middleton smelled the odor of marijuana. The officers identified themselves and asked Barton if they could speak with him. Barton responded affirmatively and admitted the officers into his home. Upon entry, the officers noticed that the odor of marijuana had become stronger.
After Barton invited the officers into his home, the officers told him that they had information that marijuana might be present in his residence. The officers advised Barton of his Miranda rights and asked if they could search his home. Barton called an attorney on the telephone. The attorney advised Barton not to consent to the search. Thereafter, Barton refused to consent to the search. Detective Long left to obtain a search warrant. Detective Middleton and Deputy Worden remained with Barton in his residence.
Detective Long returned to Barton's residence with a search warrant. The warrant was issued based on the allegations in Detective Long's affidavit that he smelled marijuana when Barton opened the door, and that the odor of marijuana became stronger once he stepped inside Barton's residence. Upon executing the warrant, the officers found approximately 105 marijuana plants in two rooms in Barton's residence. The officers photographed the plants and made a videotape of the areas where they were growing. The officers then cut the marijuana plants above the roots, placed them in plastic garbage bags, and stored them in the Drug Task Force's evidence vault. Barton presented evidence at the suppression hearing that the marijuana had substantially decomposed because it was placed in unventilated plastic bags. The Government does not dispute the fact that the plastic bags were not ventilated.
On January 14, 1992, Barton was charged in a two-count indictment. Count I charged Barton with manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). Count II charged him with the establishment of a manufacturing facility used to manufacture marijuana, in violation of 21 U.S.C. § 856 (a)(1).
On March 27, 1992, Barton filed a motion to dismiss and a motion to suppress the marijuana on the ground that the officers did not have probable cause to search his home. At the suppression hearing, Barton presented evidence that only marijuana plants with glandular trichomes emit an odor. Barton maintained that the marijuana plants seized from his home did not possess glandular trichomes. Barton argued that the officers' failure to preserve the marijuana denied him access to evidence that would have supported his contention that the plants did not emit an odor, and demonstrated that the allegations in the affidavit were false. The district court found that the officers did not act in bad faith in placing the plants in unventilated plastic bags, and denied the motions.
Thereafter, Barton entered a conditional guilty plea to count I of the indictment. The district court dismissed count II of the indictment pursuant to a plea agreement between the parties. Under the plea agreement, Barton preserved his right to appeal from the district court's order denying his motions to dismiss and to suppress the evidence seized from his home. At sentencing, the court excluded 37 of the marijuana plants, because the Government failed to demonstrate that those cuttings were "plants" within the meaning of 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1(c). Over Barton's objection, the district court included both the male and the female marijuana plants in calculating Barton's sentence under the Sentencing Guidelines. The court sentenced Barton to a term of 33 months imprisonment and 2 years of supervised release.
DESTRUCTION OF THE MARIJUANA PLANTS
Barton contends that the district court erred in denying his motion to suppress the marijuana plants found in his home. He argues that the Government's failure to preserve the marijuana plants violated due process under Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), because it denied him access to evidence that could have been used to impeach allegations in the affidavit for a search warrant. We review a district court's denial of a suppression motion de novo. United ...