United States v. Varner , 261 F. App'x 510 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES LUTHER VARNER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:05-cr-00025-sgw)
Argued: November 1, 2007 Decided: January 14, 2008
Before GREGORY and DUNCAN, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Duncan and Judge Beaty joined.
ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant.
Ray Burton Fitzgerald, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee. ON BRIEF: Katherine M. Goss, LAW OFFICES OF MARVIN
D. MILLER, Alexandria, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
On July 13, 2005, Charles Luther Varner, Jr., (“Varner”) was
indicted on thirteen counts, including conspiracy to manufacture or
distribute methamphetamine, money laundering, unlawfully carrying
on a business involving untaxed liquor, possession of a still
without properly registering it, and illegal possession of
firearms. Varner filed a motion to suppress the evidence obtained
from the search of his residence, contending that the state agents
did not have probable cause, and Drug Enforcement Agency (“DEA”)
agents improperly seized evidence from the state agents without a
warrant or court order. Varner also filed a motion to dismiss,
arguing that the DEA improperly destroyed evidence obtained during
the search. After an evidentiary hearing, the district court
denied both motions. Shortly thereafter, Varner signed a plea
agreement with the Government, which the district court accepted.
The plea agreement included a provision allowing Varner to appeal
the district court’s decision denying his motion to suppress and
motion to dismiss. Varner timely appealed that decision. After a
thorough review of Varner’s claims, we affirm the district court’s
decision.
I.
On November 4, 2004, Virginia Alcoholic Beverage Control
Special Agent D.L. Blye (“Blye”) applied to a Virginia magistrate
2
for a warrant to search Varner’s residence. In his affidavit, Blye
wrote:
On 10/6/04 S/A D.L. Blye received information from a
confidential informant that Charles Varner was
manufacturing “moonshine” from a copper still located in
the garage at his residence. The informant stated that
it was a 15-20 gallon still that produces approximately
20-30 gallons a week and that he sells it for 20-25
dollars a quart to friends and acquaintances.
On 11/03/04 at [sic] S/A D.L. Blye conducted surveillance
on the residence and observed the garage door open. Blye
observed a large tank consistent with a still; similar to
an oil tank on it’s [sic] side occupying the left side of
the garage. The tank appeared to have a vent pipe, which
would be consistent with a “doubler” or worm connection.
(J.A. 58.) In addition, Blye informed the magistrate that he had
ten years of law enforcement experience and “[b]ased on a
subsequent observation I feel that the [informant’s] information is
consistent and reliable.” (J.A. 58.) Varner’s address and a
description of his house were also included on the affidavit. The
magistrate signed the warrant on the same day.
On November 11, 2004, Blye and other Virginia law enforcement
agents executed the search warrant to look for items in Varner’s
possession that could be connected with the illegal manufacturing
and/or possession of untaxed liquor. During the search, the agents
found “suspected narcotics” and evidence “relating to the
manufacturing of methamphetamine.”1 (J.A. 67.) As a result, Blye
1
During a pat down of Varner, the agents found a “white
powdery substance” in the pocket of Varner’s pants. (J.A. 67.)
Varner admitted that the substance was “meth.” (J.A. 67.)
3
successfully obtained a second warrant to search for illegal
narcotics and items related to the possession and/or distribution
of illegal narcotics. After securing the second search warrant,
the state agents found chemicals and laboratory equipment in
Varner’s garage. The laboratory equipment was consistent with
methamphetamine production. Blye then obtained a third warrant to
search the suspected methamphetamine laboratory. Subsequently, the
state agents found and seized glassware and chemicals from the
suspected methamphetamine laboratory.
At some point during the investigation, the state agents
requested the assistance of a team of specialized agents, including
a DEA agent and DEA laboratory personnel. Upon arriving at the
Varner residence, a DEA agent concluded that the laboratory
equipment could be used to manufacture methamphetamine.
Eventually, the DEA took possession of the glassware and chemicals
and, in accordance with DEA protocol for handling hazardous
materials, destroyed some of the materials before performing any
tests to identify the chemicals or the contents of the glassware.
On February 10, 2006, Varner filed a motion to suppress the
evidence seized from his house because (1) there was no probable
cause to support the issuance of the first search warrant and (2)
the DEA agents seized evidence from the state agents without a
warrant or a court order. In addition, Varner filed a motion to
dismiss, essentially arguing that DEA destroyed the evidence in
4
violation of 21 U.S.C. §881(f)(2)2, constituting bad faith per se
on the part of the DEA.
On March 9, 2006, the district court held an evidentiary
hearing on both motions. Varner’s witnesses testified that they
were in Varner’s garage on or about November 3, 2004, (i.e., the
date when Blye first observed the still in Varner’s garage) and did
not see any of the items described in Blye’s first affidavit. In
addition, Varner proffered the testimony of his friend, Thomas Gale
(“Gale”).3 Gale would have confirmed his presence in Varner’s
garage on November 3, 2004, and testified that he did not see
anything in the garage resembling an oil can or a still. Blye also
testified at the hearing, providing details of his surveillance of
Varner’s residence, including his observation of the still. The
district court credited Blye’s testimony and concluded that Blye
attempted to describe his observations accurately.
2
21 U.S.C. § 881(f)(2) reads: The Attorney General may direct
the destruction of all controlled substances in schedule I or II
seized for violation of this subchapter; all dangerous, toxic, or
hazardous raw materials or products subject to forfeiture under
subsection (a)(2) of this section; and any equipment or container
subject to forfeiture under subsection (a)(2) or (3) of this
section which cannot be separated safely from such raw materials or
products under such circumstances as the Attorney General may deem
necessary.
3
Despite being subpoenaed, Gale did not appear at the
evidentiary hearing. The district court held that even if Gale had
testified, it would not have made a difference in the outcome of
the hearing. (J.A. 244-45, fn.1.)
5
On March 20, 2006, the district court issued a memorandum
opinion denying Varner’s motions to suppress and to dismiss.
Subsequently, Varner signed a plea agreement with the Government,
pleading guilty to three counts with the remaining counts
dismissed. The district court accepted the plea agreement and
sentenced Varner to a total of 180 months imprisonment. On appeal,
Varner argues that (1) there was no probable cause to issue the
first search warrant and the good faith exception to the
exclusionary rule, as articulated in United States v. Leon, 468
U.S. 897 (1984), was inapplicable; (2) the DEA’s seizure of some of
the glassware and chemicals found in Varner’s garage from the state
agents violated Virginia state law; and (3) the DEA improperly
destroyed evidence that was crucial to Varner’s defense, violating
his constitutional rights to due process and to defend and confront
evidence used to convict him.4 The Government contends that the
magistrate properly granted the first search warrant because there
was probable cause and because it fell under Leon’s good faith
4
In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the
Supreme Court held that the Confrontation Clause disallows
“admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.” It
is debatable whether Varner actually made a Crawford claim at the
district court level. Regardless, an agent’s failure to preserve
evidence does not violate the Confrontation Clause unless the
defendant can demonstrate bad faith on the part of the agent.
Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Because we find no
evidence of bad faith on the part of the DEA agents, Varner’s
Crawford claim must fail.
6
exception. In addition, the Government argues that the DEA’s
seizure and destruction of some of the State’s evidence accorded
with official DEA protocol. We will review each of Varner’s claims
in turn.
II.
“On motions to suppress, we review factual findings under a
clearly erroneous standard, while reviewing legal conclusions de
novo. Significantly, in our review of motions to suppress, we
review the evidence in the light most favorable to the prevailing
party below.” United States v. Foreman, 369 F.3d 776, 790 (4th
Cir. 2004) (citations omitted).
i.
The district court denied Varner’s motion to suppress the
first search warrant, holding that the evidence was admissible
under the good faith exception. Varner argues that the district
court erred because Blye’s first affidavit provided the magistrate
with “unreliable conclusions which lacked supporting facts such
that the magistrate could not make an independent, neutral and
detached judgment on the existence of probable cause” (Appellant’s
Br. 16), and the good faith exception was inapplicable.
The Leon Court held that in deciding whether to apply the
Fourth Amendment’s exclusionary sanction in any particular case, we
must “weigh[] the costs and benefits of preventing the use in the
7
prosecution’s case in chief of inherently trustworthy tangible
evidence obtained in reliance on a search warrant issued by a
detached and neutral magistrate that ultimately is found to be
defective.” Leon, 468 U.S. at 907. Indeed, “the marginal or
nonexistent benefits produced by suppressing evidence obtained in
objectively reasonable reliance on a subsequently invalidated
search warrant cannot justify the substantial costs of exclusion.”
Id. at 922.
There are four circumstances under which the good faith
exception is inapplicable: (1) “if the magistrate or judge in
issuing a warrant was misled by information in an affidavit that
the affiant knew was false or would have known was false except for
his reckless disregard of the truth”; (2) “the issuing magistrate
wholly abandoned his judicial role”; (3) a police officer relies
“on a warrant based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable”; or (4) “depending on the circumstances of
the particular case, a warrant may be so facially deficient - i.e.,
in failing to particularize the place to be searched or the things
to be seized - that the executing officers cannot reasonably
presume it to be valid.” Id. at 923 (citations and internal
quotation marks omitted). Because we find no error in the district
court’s determination that there is no evidence to support the
8
existence of the other three Leon circumstances5, we will focus on
whether the warrant was “based on an affidavit so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. at 923.
Varner argues that the first affidavit was so lacking in
probable cause that Blye’s belief in it was unreasonable because
(1) the first affidavit included an allegation that came from an
unnamed, unknown informant whom Blye did not know, thereby
precluding Blye from providing the magistrate with any information
as to the reliability of the informant; (2) Blye stated that he had
ten years of law enforcement experience without providing the
magistrate with his background in investigating whiskey stills and
moonshine; and (3) the technical terms in the first search warrant
- e.g., “doubler” and “worm connection” - could not have been
familiar to the magistrate. Based on these alleged “deficiencies”
in Blye’s first affidavit, the operative question is whether “a
reasonably well trained officer would have known that the search
was illegal despite the magistrate’s authorization” because the
affidavit was so lacking in probable cause. United States v.
Bynum, 293 F.3d 192, 195 (4th Cir. 2002).
5
The district court held that, “[n]othing suggests to this
court that Blye ‘misled’ the magistrate by knowingly or recklessly
presenting false information, that the magistrate ‘wholly abandoned
his judicial role,’ or that the warrant was ‘so facially deficient’
that Blye could not have reasonably presumed it to be valid.”
(J.A. 248.)
9
Varner cites to our decision in United States v. Wilhelm, 80
F.3d 116 (4th Cir. 1996), to support his argument that Leon’s good
faith exception is inapplicable to this case. In Bynum, 293 F.3d
at 196-97, the Court ably summarized the facts in Wilhelm:
After receiving an anonymous telephone tip that an
informant had seen marijuana being sold in the
defendant’s home within the past 48 hours, an officer
applied for a search warrant. The officer did not meet
the informant before or after receiving the tip and did
not know the informant. In support of the warrant, the
officer described the informant as a ‘concerned citizen’
and a ‘mature person with personal connections with the
suspects [who] has projected a truthfully [sic] demeanor
to this applicant.’ The officer’s only corroborating
information was that she had confirmed directions to the
residence and that the description of the marijuana and
of the sale transactions was consistent with her
knowledge of marijuana packaging and sales. We held that
the Leon good faith exception did not apply because the
officer ‘could not reasonably rely on an unknown,
unavailable informant without significant corroboration,’
and the magistrate thus acted only as a ‘rubber stamp’ in
approving a ‘bare bones’ affidavit. We further noted
that [w]hile perhaps not undertaken with deliberate bad
faith, [the officer]’s use of phrases such as ‘concerned
citizen,’ ‘mature’ and ‘truthful demeanor’ struck us as
attempts to endue the affidavit with the appearance of
genuine substance.
(internal citations omitted). Wilhelm cited to a Fifth Circuit
decision that defined a “bare bones” affidavit as “one that
contains wholly conclusory statements, which lack the facts and
circumstances from which a magistrate can independently determine
probable cause.” Wilhelm, 80 F.3d at 121 (citing United States v.
Laury, 985 F.2d 1293, 1311 n. 23 (5th Cir.1993)).
The district court, in rejecting Varner’s claim, distinguished
the instant case from Wilhelm:
10
. . . Blye’s affidavit is markedly different from the
wholly conclusory affidavit the court found deficient in
Wilhelm. Here, Blye corroborated the informant’s tip by
personally conducting surveillance of the Varners’
residence and observing a still consistent with the
informant’s tip which Blye described in the affidavit,
thus providing a factual base, not “bare bones” or mere
conclusory statements. Thus, the court finds that the
Leon good-faith exception applies and denies the Varners’
motion to suppress.
(J.A. 249.) Like the officer in Wilhelm, Varner contends that Blye
provided no information to the magistrate as to the reliability of
the confidential informant. Indeed, there are two significant
issues on which Blye does not explicitly corroborate the
informant’s information. First, the informant stated that the
still was made of copper; Blye’s first affidavit did not address
the propriety of this observation. Second, the informant stated
that the still held 15-20 gallons; Blye confirmed the existence of
a “large tank consistent with a still” but did not estimate how
many gallons the tank he observed could hold. The district court,
after hearing Blye’s testimony, admitted that the officer “may have
been mistaken about the size of the tank he saw” (J.A. 246), but
attributed this possible discrepancy to Blye’s vantage point which
was “some distance away [from Varner’s garage].” (J.A. 246.)
Varner also argues that the size and shape of a still, along
with the ability to identify its component parts, is not common
knowledge, but rather information derived from training or
experience. Thus, Varner contends that Blye should have informed
the magistrate about his areas of expertise and training in alcohol
11
related investigations. Varner concludes that since the magistrate
was unlikely to be familiar with the technical terms used by Blye,
he would have had to rely upon Blye’s experience in such matters.
As the first affidavit did not include any such information, Varner
states that the magistrate erred in relying upon Byle’s
representations.
Having set out Varner’s arguments, we now review the district
court’s application of our precedent to the facts. First, as we
held in Wilhelm, “[t]wo factors are key to this [probable cause]
analysis: the informant’s “veracity” or “reliability” and his or
her “basis of knowledge.” Wilhelm, 80 F.3d at 119. While keeping
in mind that the Leon good faith threshold is lower than that
necessary to establish probable cause6, it is clear that the
magistrate was not provided with any indication of the informant’s
reliability or what, if any, relationship the officer had with the
informant. Nevertheless, unlike the officer in Wilhelm, Blye
corroborated portions of the informant’s testimony by actually
visiting the site. While the officer’s observations do not exactly
mirror those of the informant, they are relatively close.
Second, while there are law enforcement officials that would
not be familiar with the intricacies of a still and its component
6
E.g., United States v. Bynum, 293 F.3d 192, 195 (holding that
Leon’s third circumstance requires a “less demanding showing than
the substantial basis threshold required to prove the existence of
probable cause in the first place”) (internal quotation marks
omitted).
12
parts, there is nothing in the record that would cast any doubt on
Byle’s familiarity with such equipment. Finally, based on a close
reading of the first affidavit, we hold that it does not contain
any complex technical jargon necessitating specialized knowledge on
the part of the magistrate.
Ultimately, we conclude that Blye’s first affidavit is not
“bare bones” because the facts in the affidavit are not “wholly
conclusory” and as such, the magistrate could make an informed
decision as to probable cause. Thus, we affirm the district
court’s decision as to this issue.
ii.
Varner also contends that the DEA agents’ seizure of the
glassware and chemicals from the state agents without court order
or warrant, violated the Fourth, Ninth, and Tenth Amendments of the
Constitution. In addition, Varner concludes that the state
officials knew they were violating the law when they turned over
the evidence to the federal officials.7
Varner’s claim must fail because the transfer of evidence from
state officers to the DEA is an issue of state law. In addition,
7
The Government argues that we should dismiss this claim
because it was never raised at the district court level or
preserved pursuant to Varner’s conditional plea agreement. The
Government is incorrect because in Varner’s motion to suppress,
Varner clearly stated that the federal seizure of the evidence was
“conducted without a warrant or court order.” (J.A. 32-33.) In
addition, as stated previously, Varner’s plea agreement expressly
reserved his right to appeal the district court’s denial of his
motion to suppress.
13
there is no evidence that the state officers colluded with the DEA
officials in breaking state or federal law. As such, we must
reject Varner’s claim.
III.
Finally, Varner claims that the DEA violated his right to due
process. Varner’s due process allegation is a question of law
subject to de novo review. United States v. Blake, 81 F.3d 498,
503 (4th Cir. 1996). Specifically, Varner argues that the DEA
agents violated his constitutional right to due process when they
authorized the destruction of potentially exculpatory evidence8
(e.g., laboratory equipment, chemicals, glassware) in violation of
21 U.S.C. § 881(f)(2). The Government argues that (1) the DEA
agents followed established DEA protocol for handling a suspected
methamphetamine laboratory; (2) that the destroyed evidence did not
possess any apparent exculpatory value; and (3) that the DEA agents
did not act in bad faith. The district court denied Varner’s
motion because Varner had not proven that the destroyed glassware
and chemicals were exculpatory, that the DEA agents were aware of
8
Varner admits that the evidence was potentially exculpatory
since the chemicals were never tested. This is a critical
distinction since the Supreme Court has held that a due process
violation occurs, regardless of good or bad faith, when the State
suppresses or fails to preserve material exculpatory evidence.
Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427
U.S. 97 (1976).
14
its exculpatory value, or that the DEA agents acted in bad faith by
destroying the evidence. (J.A. 251.)
Based on Varner’s own admission, the chemicals seized were
untested, and as such, they were only potentially exculpatory.
(J.A. 35.) In addition, while Varner claims that the glassware was
unused, the Government contends that there is no evidence to
support Varner’s claim beyond the black and white pictures taken at
the site. Under applicable Supreme Court precedent, due process
concerns are not implicated when potentially exculpatory evidence
is destroyed “unless a criminal defendant can show bad faith on the
part of the police.” Illinois v. Fisher, 540 U.S. 544, 548 (2004)
(internal quotation marks and citations omitted) (emphasis in
original). In Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the
Court held that bad faith is evidenced “when the police themselves
by their conduct indicate that the evidence could form a basis for
exonerating the defendant.” In other words, for due process
concerns to arise in the instant case, the destroyed evidence must
have some exculpatory value that the agents recognized, and yet
nevertheless destroyed.
There is little doubt that the chemicals and glass potentially
possessed exculpatory value. Indeed, Varner’s sole defense to the
charge of manufacturing methamphetamine was that he used the
laboratory to extract platinum from metal using acid in the fume
hood. (Appellant’s Br. 38.) Under Youngblood, even though this
15
evidence might have exonerated him, Varner must still provide
evidence of bad faith on the part of the DEA agents. In doing so,
Varner must show that the agents’ actions manifested their
knowledge that the evidence was potentially exculpatory. Varner
argues that bad faith can be inferred by the fact that the DEA
agents destroyed the evidence without explicit authorization from
the Attorney General as per 21 U.S.C. § 881(f)(2). The Government
contends, and the district court agreed, that even if the DEA
agents violated this statute, the fact that the agents and
laboratory personnel followed established protocol was sufficient
to rebut any inference of bad faith.9
It is impossible, based on the evidence in the record, to
discern what the DEA agents on site knew about the contents of the
glassware and the identity of the chemicals in the sealed
containers because the materials were not tested prior to their
destruction. For Varner to demonstrate bad faith on the agents’
part, he would have to show that (1) the agents knew that the
chemicals were not methamphetamine, but rather an innocuous
substance, or (2) the agents understood that the materials were not
hazardous and destroyed them on the off chance that the chemicals
9
While the underlying assumption in both the Government’s and
district court’s decision is that the DEA did follow established
protocol in destroying the evidence, neither party introduced
evidence of the DEA’s methamphetamine protocol to the district
court, and the district court did not take judicial notice of such
a protocol.
16
were not methamphetamine. There is no evidence in the record
supporting the existence of either of those scenarios. In
addition, we agree with the district court that establishing a per
se rule that would automatically imply bad faith on the part of
officers upon violating 21 U.S.C. § 881(f)(2) would be imprudent.
Thus, under these circumstances, Varner’s right to due process
was not violated.
IV.
For the reasons above, the district court’s decision denying
Varner’s motions to suppress and dismiss is affirmed.
AFFIRMED
17