UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4192

JAMES DARNELL BROWN, a/k/a James

David Brown,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Frank W. Bullock, Jr., Chief District Judge.

(CR-96-44)

Submitted: September 30, 1997

Decided: November 5, 1997

Before ERVIN, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John Stuart Bruce, Acting Federal Public Defender, William S. Trivette, Assistant Federal Public Defender, Greensboro, North Carolina,

for Appellant. Walter C. Holton, Jr., United States Attorney, Timika

Shafeek, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

James Darnell Brown appeals from his conviction for possession of

a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)

(1994). We affirm.

Officer Sampson of the High Point, North Carolina, Police Department received a tip from a confidential informant that Brown would

be at a particular location in High Point, driving a green Pathfinder,

and carrying crack cocaine. Sampson went to the place identified by

the informant and observed Brown in a green Pathfinder. A few days

later Sampson received a similar tip but was unable to locate Brown.

Sampson then posted a lookout for Brown's vehicle and it was found

the next day at 806 Park Street, a private residence. Sampson traveled

to 806 Park Street and observed the same green Pathfinder sitting in

the yard of the residence a few feet from the public road. Sampson

then took up a location a few blocks down the street and waited for

Brown to leave in the Pathfinder. From his vantage point Sampson

could not see the Pathfinder, but would be able to tell if it was leaving. After waiting approximately two hours, Sampson contacted his

superior who suggested that Sampson approach the residence and

seek permission to search the vehicle.

As Sampson passed the Pathfinder and approached the residence,

he observed a group of people sitting on the front porch. He also

noticed the smell of marijuana. Sampson asked Brown, who was on

the porch, whether the Pathfinder belonged to him. Brown replied that

it did. Sampson then asked if Brown's name was Spencer as the

license plate was registered under that name. Brown responded in the

negative, and identified himself as "James Brown." Sampson then

asked Brown if he would walk with him down to the road for a discussion away from the group on the porch. Brown agreed and the two

traced the same path Sampson had followed when approaching the

residence.

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Sampson identified himself, informed Brown that he had received

complaints about Brown and the vehicle, and requested permission to

search the Pathfinder. Brown refused, stating that Sampson would

have to wait for his wife, or girlfriend to get off from work.1 Following this refusal, Sampson walked with Brown back up to the porch,

again following the same path. At this point, Sampson noticed that no

one remained on the porch, but he still smelled the same odor of marijuana which he had before. Sampson then noticed that the odor

appeared to be coming from the Pathfinder, specifically from the passenger's side window which was in the down position. Prompted by

this odor, Sampson looked through the open window and saw a marijuana cigarette in the ashtray. Based upon this discovery, Sampson

called Brown back out of the house, arrested him for simple possession of marijuana, and searched the Pathfinder. This search, which

Sampson described as being incident to arrest, revealed a loaded firearm in the glove compartment and several bundles of heroin, crack,

and marijuana hidden in a "stash compartment" of a book.

Sampson pled guilty in state court to various drug charges and was

charged in federal court only for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) (1994). Prior to trial

Brown moved to suppress the firearm as the result of an illegal

search. His attorney argued first that the search could not be justified

under the plain view doctrine because Sampson was on private property when he observed the alleged cigarette. Even assuming that

Sampson was entitled to be on the private property, Brown attacked

Sampson's assertion regarding the burning marijuana cigarette. Specifically, Brown argued that Sampson's claim that the cigarette was

still burning after his two-hour observation of the Pathfinder was simply beyond credulity. Alternatively, Brown argued that even assuming

the existence of the cigarette, the search could not be justified as incident to arrest because the arrest was not pursuant to a highway stop,

the car was located on private property, and Brown, on crutches and

without the keys, was unable to obtain a weapon or destroy evidence.

Nor, Brown asserted, could the search be justified pursuant to the

automobile exception of the warrant requirement, again because

Brown was on crutches and not in possession of the keys. Finally,

Brown asserted that the vehicle was only a few blocks from the court-

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1 This wife, or girlfriend, to whom Brown referred was Spencer.

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house where Sampson could have, and should have, obtained a warrant.

The district court rejected these arguments, finding that Sampson

had the authority to approach the porch on private property and question Brown. From this point the district court found that Sampson's

observation of the marijuana2 fell within the plain view doctrine and

justified a further search based upon the automobile exception.

Immediately prior to trial Brown moved for dismissal, arguing that

Brown's due process rights were violated by the police department's

destruction of the firearm which formed the basis of the § 922(g)

charge and the marijuana cigarette which formed the basis of the

search. The district court denied this motion as well.

Following a jury trial, Brown was convicted of the§ 922(g)

offense. He noted a timely appeal to this Court and argues that the

district court erred in denying both of the aforementioned motions.

We affirm.

Addressing first Brown's motion to suppress, we note that Brown

attacks the application of the plain view doctrine to the facts surrounding his case. Specifically, he contends that the seizure of the

marijuana was improper under the plain view doctrine, and that had

the police not seized the marijuana and then searched the Pathfinder,

they would not have discovered the firearm. We disagree.

The plain view doctrine justifies seizure of evidence where the

seizing officer is lawfully present at the place from which the evidence can be plainly viewed, the officer has a lawful right of access

to the object itself, and the object's incriminating character is immediately apparent. See United States v. Taylor, 90 F.3d 903, 909 n.4 (4th

Cir. 1996). Beginning with step one of the plain view doctrine analysis, we agree with the district court's finding that Officer Sampson's

presence on the private property was lawful. We find Brown's reli-

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2 Although the district court expressed some concern regarding the

duration of the burning marijuana cigarette, it nonetheless stated that it

was "inclined to believe" that the cigarette was readily identifiable by the

officer as contraband.

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ance on United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974),

for the proposition that Officer Sampson's presence on private property invalidated the search, unconvincing not only because Bradshaw

did not hold that plain view cannot support a search when the police

observe illegal materials on private property, but also because

Bradshaw is factually distinguishable. In Bradshaw, this Court held

that "moonshine" hidden in a truck on the back of the defendant's

property which could only be observed by walking to the back of said

property and looking through a small crack in the rear doors of the

trunk, was not in plain view from a location in which a police officer

might be lawfully present. In Brown's case, however, Officer Sampson was able to observe the marijuana through an open window and

therefore his act of looking into the Pathfinder did not violate any privacy interest Brown might have in the contents of the vehicle. While

it is true that the vehicle was on private property, we agree with the

district court that Officer Sampson had the right to approach the

house from the road and question Brown regarding the information he

had received. Thus, we agree with the district court's finding that

Officer Sampson observed the marijuana in plain view from a location where he had a right to be.

Based upon this observation we find that steps two and three of the

plain view doctrine were also satisfied. The illegality of the marijuana

was immediately apparent and its presence, contrary to Brown's

assertions, gave Officer Sampson probable cause to search the Pathfinder under the automobile exception to the warrant requirement.

Once legally in the car under the automobile exception, the police had

the authority to search within the glove compartment, and the discovery of the firearm was thus valid under both the plain view doctrine

and automobile exception. We therefore affirm the district court's

denial of Brown's motion to suppress on this basis.

Next, Brown argues that the district court erred in denying his

motion to dismiss on the basis that the Government destroyed potentially exculpatory evidence when it destroyed the firearm forming the

basis of the § 922(g) charge and the marijuana justifying the search.

Brown argues that fingerprint analysis of the firearm might have

revealed the prints of another individual, demonstrating that the firearm was not in Brown's possession, but was in the possession of

another. In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme

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Court held that to establish a due process violation for failure to preserve such evidence a defendant must show: (1) that the evidence possessed exculpatory value which was apparent prior to its destruction;

(2) that the defendant cannot obtain comparable evidence by another

means; and (3) bad faith in the destruction of the evidence. See

Youngblood, 488 U.S. at 57-58 (adding third element); California v.

Trombetta, 467 U.S. 479, 489 (1984) (establishing first two elements). The presence or absence of this bad faith turns upon the

police knowledge of the exculpatory nature of the evidence at the

time it was destroyed. See Youngblood, 488 U.S. at 56. In Brown's

case, the exculpatory nature of the firearm was not readily apparent.

Despite Brown's claim that fingerprint evidence might have revealed

that his prints were not on the firearm, an ATF agent testified that the

firearm was not submitted for fingerprint testing because "it had been

through several hands" which would result in"overlays, where . . .

one fingerprint overlay[s] over the other . . . mak[ing] the possibility

of obtaining fingerprints . . . minimal." Given the absence of this testing, the firearm possessed no readily apparent exculpatory value and

the district court therefore committed no error in denying Brown's

motion to dismiss due to its destruction.3 

Accordingly, we affirm Brown's conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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3 While Brown also argues that the Government's failure to preserve

the marijuana resulted in a violation of due process under this same theory, we find this theory inapplicable to that claim. The presence or

absence of the marijuana had neither inculpatory nor exculpatory value

in Brown's trial for a firearm violation. Rather, as explained above, the

marijuana is important only so far as it created probable cause to support

the search of the Pathfinder, which in turn led to the discovery of the

firearm. This support would be equally valid whether the material in

question was marijuana or not, so long as Officer Sampson reasonably

believed it to be so.

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