On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Crim. No. 91-00182-01).
Before: Sloviter, Chief Judge, Mansmann and Greenberg, Circuit Judges.
This appeal arises out of a judgment of conviction and sentence in a criminal case against Garry R. Benish for possession with intent to distribute in excess of 100 marijuana plants in violation of 21 U.S.C. § 841 (1988). Defendant Benish appeals the denial of his motion to suppress the evidence of the marijuana plants seized from his farm and the district court's refusal to grant a downward departure in sentencing. We have jurisdiction under 28 U.S.C. § 1291 (1988).
FACTS AND PROCEDURAL HISTORY
On June 21, 1991, an employee of Central Electric Cooperative, Inc., an electric utility company, informed the Pennsylvania State Police that there had been an abnormal consumption of electricity at a farm in Sugarcreek Township and that the electricity had been turned off due to nonpayment. The employee also informed the police that the doors and windows of the residence were covered with dark plastic.
Based on this information, Trooper Jeffrey Rood, an employee of the Pennsylvania State Police, suspected that the operation of a methamphetamine laboratory. Rood visited the property with a utility company employee (who intended to turn the electricity back on because the bill had been paid). Rood intended to disguise himself as another utility company employee, if necessary. While at the farm, Rood knocked on the door of the residence (a trailer that had been turned into a permanent structure) but no one answered. Rood walked around the trailer structure and observed the dark plastic covering the windows.
As a result of his visit, Rood believed that marijuana was being grown inside the house. He then began and coordinated an investigation, using the Pennsylvania Army National Guard.
On June 27, 1991, a squad of guardsmen, under the command of Lieutenant Ross Gammon, took up positions in the woods near the farm to conduct surveillance.*fn1 Gammon set up a command post in a nearby church. The next day, Joshua Porter, one of the guardsmen, was ordered to take a position on the other side of the Benish residence. In crossing the Benish property, Porter observed what he suspected to be a marijuana plant. After reporting back to Lieutenant Gammon and receiving instructions, Porter returned to the plant and took a sample, which a field test confirmed was marijuana.
On the same day, the State Police arranged an overflight of the farm by helicopter. Agent Fred Neal of the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigation and Drug Control, Gammon and Trooper Leonard Lapato were on the flight. From an altitude of 2000 feet, Lapato observed marijuana growing on the farm. Gammon testified that he did not observe any marijuana but that he was "no expert." App. at 193. The overflight was ordered before the seizure of the marijuana plant by Porter, but it actually took place after the field test was completed.
After the seizure and the overflight, Neal and Rood prepared an affidavit in support of probable cause for a search warrant. The warrant was signed by a state court Judge on June 30, 1991. In a search of the farm and the residence pursuant to the warrant on July 1, 1991, over 900 marijuana plants were discovered. Some plants were seized for samples and evidentiary purposes and the remaining plants were destroyed.
Also on July 1, 1991, Benish was arrested pursuant to an arrest warrant. He was initially charged with state offenses, but on October 2, 1991, he was indicted by a federal grand jury for the same conduct, and the state information was nolle prossed.
On October 25, 1991, Benish filed both a motion to suppress the evidence seized from his property and a motion to dismiss the indictment. After a hearing, the district court denied both motions. See United States v. Benish, 782 F. Supp. 35 (W.D. Pa. 1992).
On January 21, 1992, Benish entered a conditional plea of guilty to possession with intent to distribute in excess of 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(vii) (1988), expressly reserving his right to challenge on appeal the district court's denial of his motion to suppress evidence and his motion to dismiss the indictment.
On February 21, 1992, Benish filed a motion challenging the applicable portion of section 2D1.1 of the United States Sentencing Guidelines as unconstitutional. On February 28, 1992, Benish filed his objections to the presentence investigation report, contesting several of its factual findings, including the application of section 2D1.1. After a hearing, the district court denied Benish's motion challenging the constitutionality of section 2D1.1, a ruling Benish has not appealed.
At the sentencing hearing, the district court adopted the presentence report's count of 940 plants which resulted in a base offense level of 30. The district court reduced the base offense level by 2 for acceptance of responsibility, resulting in a total offense level of 28. The guideline range (based on a Criminal History Category of I) was 78-97 months imprisonment. The district court sentenced Benish to the minimum 78 months, noting on the sentencing form that the sentence was "solely due to the guidelines." App. at 487. At the sentencing hearing the district Judge commented that he believed the sentence "was harsh and perhaps unreasonable," but concluded that Benish's argument ...