Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

MEMORANDUM^* 

Appellant attacks his conviction on several grounds that we address in turn:

(1) We reject the contention that appellant had standing to challenge the search of the shack on the Ball property and the seizure of its contents because he "contested the police action in his arrest" and because "it is the Government's position that the glassware and chemicals making up the methamphetamine lab also belonged to [appellant]." Appellant offers no authority that his challenge to his arrest conferred standing to challenge the search of the shack. As to the seizure of the equipment, the government's claim that appellant used the methamphetamine lab does not confer standing in the absence of a claim by appellant that he had a property or possessory interest in the objects seized. See Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 134, 148 (1978).

Appellant had no reasonable expectation of privacy in the shack. The property was essentially a vacant plot in a rural area. The shack was unused and without a door, and appellant was a trespasser. His friendship with the brother of the daughter-in-law of the property owner was hardly sufficient to confer standing. If appellant entertained an actual expectation of privacy in the lab, that expectation was neither reasonable nor legitimate. See Rakas 439 U.S. at 143 n. 12.

Since appellant lacks standing, we do not address the government's claim the search was justified by exigency.

(2) We reject the argument that appellant's statements when he was arrested should have been suppressed because the police lacked probable cause for the arrest. The Ball property was remote and vacant. A neighbor told the police he had smelled an odor associated with the manufacture of methamphetamine (not with the drug itself) emanating from the shack, and another neighbor reported unexplained nocturnal traffic. While interviewing the first witness, the police heard the sounds of a car apparently stuck on the property. The presence of anyone on the vacant property was suspicious. In view of the information the police had received earlier of the odor of methamphetamine being processed on the property, it was reasonable for the police to assume the persons they would encounter might be drug traffickers and might be armed. It was therefore reasonable to approach appellant with weapons drawn. See Terry v. Ohio, 392 U.S. 1, 24 (1968). Upon approaching appellant the police noted fresh needle marks on his arms and an odor emanating from his person that indicated he had been present while methamphetamine was being manufactured. These circumstances gave the police probable cause to believe appellant had committed a crime. See Draper v. United States, 358 U.S. 307, 313 (1959).

(3) We reject appellant's contention the evidence was insufficient to sustain his conviction for manufacturing methamphetamine because of evidence that the lab in the shack was set up "for the production of P-2-P, a precursor of methamphetamine." There was ample evidence that in fact the lab was used for the manufacture of methamphetamine. Methamphetamine was found on a drying plate in the lab; a bottle of a substance identified as methylamine, a component of methamphetamine but not P-2-P, was found in the lab; the lab contained the equipment and chemicals necessary to make methamphetamine, and an expert testified the lab could have no other purpose; an eyewitness testified the odor of processing methamphetamine had emanated from the property; and methamphetamine was found on appellant's person when he was arrested nearby.

(4) Appellant concedes the 3-month delay from arrest to indictment and the 10-month delay from indictment to trial were "not substantial," and does not challenge the district court's conclusions that " [t]he majority of the delay in this case was caused by the filing of defense motions" and " [a] review of the relevant dates shows that there was no violation of the Speedy Trial Act."

Appellant complains nonetheless that he was denied his constitutional right to a speedy trial and his rights under Brady v. Maryland, 373 U.S. 83 (1963), because (1) the owner of the property died a few months after appellant's arrest; (2) police telecommunications records were destroyed 7 months after the arrest; (3) the shack was destroyed by the new owner of the Ball property before trial; (4) the person who allegedly operated the lab died a few months before trial; and, (5) a bottle a prosecution witness said contained methylamine was destroyed before appellant's counsel had it examined.

Appellant failed to demonstrate such substantial prejudice that dismissal of the indictment was warranted despite the shortness of the delay and appellant's partial responsibility for it. (1) Appellant gives no reason to believe the property owner would have provided significant defense testimony; (2) Appellant made no showing why he did not review the police records in the 7 months prior to their destruction; (3) Appellant made no effort to examine the shack before its destruction and police photographs of the interior of the shack remained available; (4) Appellant made no showing as to the probable testimony of the lab operator or that he would have testified despite the likely availability of a fifth amendment privilege; and (5) Appellant offers no reason to reject the district court's finding he had access to the methylamine bottle prior to its destruction.

Balanced against the weak evidence of prejudice was ample evidence of appellant's guilt. Appellant had needle marks and fresh sores on his arms when he was arrested; he was arrested near the lab and provided no exonerating reason for his presence there; his fingerprints were found on the equipment taken from the lab; and he was carrying a gun and had ammunition in his car.

Balancing the relevant considerations, appellant's constitutional right to a speedy trial was not violated, see Barker v. Wingo, 407 U.S. 514, 530-33 (1972); and appellant failed to make the showing of bad faith required to establish the destruction of evidence violated due process. See Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988).

(5) Since appellant's conviction by the petit jury was supported by substantial evidence, any infirmity in the grand jury's charging decision was harmless beyond a reasonable doubt. United States v. Mechanik, 475 U.S. 66, 70 (1986); United States v. Tobias, 836 F.2d 449, 452 (9th Cir. 1988).

(6) The essence of the instruction sought by appellant was given. The trial court merely exercised its "substantial latitude in tailoring the instructions." United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986).

AFFIRMED.