Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)Annotate this Case
United States Court of Appeals, Ninth Circuit.
Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and MacBRIDE,** District Judge.
Gregory appeals his convictions and sentence stemming from his participation in a marijuana-grow operation.
* Gregory contends that the state superior court judge lacked probable cause to issue the search warrant. This argument is without merit.
The determination by a magistrate or state court judge that probable cause exists to issue a search warrant will be accorded great deference and will be reversed only if clearly erroneous. See United States v. Ramos, 923 F.2d 1346, 1351 n. 9 (9th Cir. 1991); United States v. Terry, 911 F.2d 272, 275 (9th Cir. 1990). The magistrate or judge must have a substantial basis for concluding that incriminating items are located on the property to which entry is sought. See Ramos, 923 F.2d at 1351.
Here, probable cause was clearly established. The purchase of the property alone was suspicious. The property was ideal for a marijuana growing operation, due to its secluded location. Additionally, the sale involved an unusually large sum of cash. Finally, Gregory purchased the property in the company of a reputed marijuana-grow chieftain, Rolf Westermayer, who was not merely a passive observer, but appeared to be an active consultant in the purchase.
Similarly, following the purchase by Gregory, the property took on many of the characteristics indicative of a marijuana growing operation. A separate power meter was installed for the barn under a name other than Gregory's. Power company records indicated that the barn and other outbuildings were consuming tremendous amounts of electricity, apparently operating the industrial fan and lights installed in the barn. (Such equipment is also characteristic of a marijuana growing operation.) Finally, officers observed no apparent commercial operation at the farm, despite the foregoing factors suggesting commercial activity.
Under the totality of the circumstances, probable cause to issue a search warrant was abundantly established. See United States v. Dozier, 844 F.2d 701, 706-07 (9th Cir.), cert. denied, 488 U.S. 927 (1988); United States v. Roberts, 747 F.2d 537, 544 (9th Cir. 1984).
Gregory argues that the conduct of the officers executing the search was so excessive as to violate the Constitution. Such excesses, Gregory contends, included the shooting of his dog, "trashing" of the residence during the search, and consuming approximately 7 or 8 cans of his beer.1
" ' [R]easonableness' [of a search] can be vitiated ... by the manner in which the police conducted the search, even if the conduct did not rise to the shocking level of a due process violation. Claims that otherwise reasonable searches have been conducted in an unconstitutionally unreasonable manner must be judged under the facts and circumstances of each case." Penn, 647 F.2d at 882-83 (citations and footnote omitted).
The shooting of Gregory's dog, though regrettable, was done excusably by an officer who reacted quickly in a potentially dangerous situation to a perceived attack by an animal reasonably believed to be an attack dog. The shooting of the dog did not render the search unreasonable. See United States v. Harrington, 923 F.2d 1371, 1373 (9th Cir. 1991) (use of force does not render an action unconstitutional where force was "justified by concern for the safety of the officers or others"); cf. Pfiel v. Rogers, 757 F.2d 850, 866 (7th Cir. 1985) (officer's shooting of dogs did not violate fourth amendment, although alternatives were available to officer), cert. denied, 475 U.S. 1107 (1984).
Gregory also challenges the officers' "trashing" of his residence. The officers, Gregory claims, left the contents of drawers and dressers strewn about, ripped carpet up from the floors, and left the remnants of their lunch (including empty beer cans) scattered about the kitchen. "It is plain that while the destruction of property in carrying out a search is not favored, it does not necessarily violate the fourth amendment. Officers executing search warrants on occasion must damage property in order to perform their duty." United States v. Becker, No. 90-30095, slip op. 4185, 4194 (9th Cir.Mar. 29, 1991) (citations and quotation omitted). Here, all "damage" was done within the scope of the search warrant. Moreover, physical damage was apparently minor, limited to the removal of carpet. Given the breadth of the search, this minor damage was not unreasonable.
Finally, Gregory contends that the search was rendered unreasonable when the officers drank his beer. While the lawfulness of a search is a mixed question of fact and law reviewed de novo, United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989), findings of fact are reviewed for clear error, see id. Here, the district court concluded that the beer could have been drunk by intruders after the search had ended. Given the testimony of several officers that they had not drunk any beer, and the several-day lapse of time between the search and Gregory's return to the farm, we cannot say that this finding was clearly erroneous.
Moreover, even if the officers had drunk Gregory's beer, that indiscretion alone would not render the entire search unreasonable. See United States v. Offices Known as 50 Distrib. Co., 708 F.2d 1371, 1376 (9th Cir. 1983), cert. denied, 465 U.S. 1021 (1984). A remedy for such an indiscretion was available, specifically designed to remedy the specific offense. See id. Wholesale invalidation of the search would not be required.
Finally, Gregory contends that the district court erred in upwardly adjusting his offense level for possession of a firearm during the offense. We review a district court's conclusion that a defendant possessed a firearm during the commission of an offense for clear error. United States v. Heldberg, 907 F.2d 91, 93 (9th Cir. 1990).
Here, the rifle was found in the defendant's bedroom. The rifle was loaded. The district court's upward adjustment was not clearly erroneous. See id.; see also United States v. Stewart, 926 F.2d 899, 901 (9th Cir. 1991) ("the key is whether the gun was possessed during the course of criminal conduct, not whether it was 'present' at the site") (emphasis added).
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4
The Honorable Thomas J. MacBride, Senior United States District Judge for the Eastern District of California, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3
Gregory does not indicate which constitutional provision he believes that officers violated. He cites to Rochin v. California, 342 U.S. 165 (1952), in which the Supreme Court invalidated a search under the due process clause. However, Rochin and its progeny are limited to cases of physical assault on a suspect's person. See United States v. Penn, 647 F.2d 876, 880 (9th Cir.) (en banc), cert. denied, 449 U.S. 923 (1988). However, we have analyzed search-related conduct of the police under both the due process clause and the fourth amendment. See id. at 880-84. We shall do likewise here; however, since search-related conduct must be "shocking" to violate the due process clause, whereas such conduct is evaluated for reasonableness under the fourth amendment, see id. at 882, the due process analysis is subsumed by that of the fourth amendment