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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5839
STEVE LESHUK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-50065)
Argued: July 14, 1995
Decided: September 18, 1995
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Russell wrote the opinion, in
which Judge Widener and Judge Hall joined.
_________________________________________________________________
COUNSEL
ARGUED: Stepehn Douglas Herndon, Wheeling, West Virginia, for
Appellant. Paul Thomas Camilletti, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee. ON BRIEF: Martin P. Shee-
han, SHEEHAN & NUGENT, Wheeling, West Virginia, for Appel-
lant. William D. Wilmoth, United States Attorney, Wheeling, West
Virginia, for Appellee.
_________________________________________________________________
OPINION
RUSSELL, Circuit Judge:
On August 30, 1994, Defendant-Appellant Steve Leshuk agreed to
a conditional guilty plea for aiding and abetting the manufacture of
marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). In
signing the plea agreement, Leshuk preserved his right to file this
appeal. Leshuk now raises various assignments of error challenging
his conviction and sentence. Finding that his assignments lack merit,
we affirm his conviction and sentence.
I.
On April 26, 1994, a turkey hunter discovered a marijuana cultiva-
tion site in a rural area in Marshall County, West Virginia. That same
day, the hunter contacted the local sheriff's office and directed Dep-
uty Sheriff Joe Cuchta and Deputy Sheriff Michael J. Fluharty of the
Ohio Valley Drug Task Force to the site. The site was located approx-
imately one mile through the woods off the travelled road. At the site,
Deputy Cuchta observed a chicken wire mesh enclosure surrounding
33 marijuana plants. Each plant was about three or four inches tall
and was wet around its base. Vines had been weaved through the
mesh to conceal the site.
Shortly after arriving at the site, the deputies and the turkey hunter
heard a commotion nearby. The three spread out and moved through
the woods towards the commotion to investigate. The turkey hunter
first approached the area of commotion, which was located approxi-
mately fifty yards from the cultivation site. The hunter called out to
the deputies that he had found the defendants, Steve Leshuk and Glen
K. Smith. The deputies found the defendants next to two backpacks
and Smith also beside a brown plastic garbage bag. Wire mesh similar
to that surrounding the cultivation site was attached to the backpacks.
As the deputies approached, the turkey hunter announced "this is
the sheriff's office," or words to that effect. The hunter also ordered
Leshuk and Smith to raise their hands and stated that the deputies
would shoot the defendants' dog if the defendants did not call it off.
The deputies then identified themselves as police officers, frisked
both defendants, and determined they were not armed. Neither of the
deputies was in uniform, and only Deputy Cuchta had a firearm,
which was not drawn. The deputies informed the defendants that they
were investigating a nearby marijuana site. The deputies asked the
defendants about their purpose for being there, but the defendants did
not answer. The deputies also asked the defendants about the contents
of the backpacks and the garbage bag, but, according to the deputies'
testimony, the defendants denied ownership of the packs and bag.
Deputy Cuchta then looked into the garbage bag and found several
small marijuana plants in little soil containers. Deputies Cuchta and
Fluharty both looked into the backpacks and found a machete, folding
shovels, fertilizer, mothballs, containers of water, and other items.
The deputies asked about the materials they found, but the defendants
did not respond. The deputies also asked the defendants other ques-
tions regarding their presence near the site. The defendants identified
themselves, and Leshuk stated that he had driven to the site in his
pickup truck. At that point, the deputies advised Leshuk and Smith
that they were under arrest. The deputies and the defendants began
walking back to the police vehicles at the road. At the roadway, Smith
tried to run away, but Deputy Cuchta and the turkey hunter chased
him down and caught him. After Smith was caught, Deputy Fluharty
read Miranda warnings to the defendants. At the conclusion of these
events, Deputy Fluharty counted 67 marijuana plants in the garbage
bag, and another deputy counted 33 marijuana plants in the fenced-in
enclosure. 1
On May 11, 1994, a grand jury in the Northern District of West
Virginia returned an indictment charging Leshuk and Smith with
manufacturing approximately 100 marijuana plants in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Both defendants filed motions
to suppress, and a hearing on the motions was held before a magis-
trate judge on June 14, 1994. Deputy Cuchta testified at the hearing,
but Deputy Fluharty was ill and was unable to testify. The defendants
argued that any statements they made after the initial confrontation
with the deputies must be suppressed because the deputies had con-
ducted custodial interrogation without first giving Miranda warnings.
The defendants also argued that the items found in the garbage bag
and the backpacks must be suppressed because the deputies con-
ducted a warrantless search in violation of the defendants' Fourth
Amendment rights.
On July 22, 1994, the magistrate judge filed his proposed findings
of fact and recommendations for disposition of the issues. The magis-
trate recommended that the statements made before the deputies read
the defendants their Miranda rights should be suppressed. However,
the magistrate denied the defendants' motions to suppress the items
found in the garbage bag and the backpacks.
On August 29, 1994, the district court issued its order responding
to Smith's and the government's objections to the magistrate's
recommendations. 2 The district court first rejected the magistrate's
recommendation that the defendants' statements be suppressed. The
court found that the deputies' interrogation eliciting the statements
did not violate the defendants' rights to receive Miranda warnings,
and the court therefore denied the defendants' motions to suppress the
statements. From this finding, the court determined that the defen-
dants' denial of ownership in the garbage bag and backpacks was vol-
untary and was not the result of the deputies' misconduct. Agreeing
with the magistrate, the court accordingly denied the defendants'
motions to suppress the items found in the garbage bag and the back-
packs.
On August 30, 1994, after the jury selection phase of his trial,
Leshuk agreed to a conditional guilty plea preserving his right to file
this appeal. That same day, the district court reopened hearings on the
suppression motions in order to allow Deputy Fluharty to testify.
Upon consideration of the additional evidence, the court issued a sup-
plemental decision on August 31, 1994, affirming its earlier ruling.
On November 1, 1994, the court sentenced Leshuk to sixty months
imprisonment and to four years of supervised release.
II.
A.
Leshuk first argues that his denial of ownership and other state-
ments made during the deputies' questioning should be suppressed
because the deputies improperly interrogated him without administer-
ing warnings pursuant to Miranda v. Arizona , 384 U.S. 436 (1966).
A person subjected to custodial interrogation is entitled to the proce-
dural safeguards prescribed by Miranda , and therefore, any state-
ments a suspect makes during custodial interrogation are inadmissible
in the prosecution's case in chief unless prior Miranda warnings have
been given. See Stansbury v. California , 114 S. Ct. 1526, 1528 (1994)
(per curiam); Berkemer v. McCarty , 468 U.S. 420, 434 (1984). A sus-
pect is "in custody" for Miranda purposes if the suspect has been for-
mally arrested or if he is questioned under circumstances in which his
freedom of action is curtailed "of the degree associated with a formal
arrest." Stansbury , 114 S. Ct. at 1529 (quoting California v. Beheler ,
463 U.S. 1121, 1125 (1983) (per curiam)).
The magistrate judge recommended that the statements during the
interrogation be suppressed based on his finding that a reasonable per-
son in the defendants' position would have understood that he was in
custody and not free to leave from the beginning of the encounter,
when the defendants were told to raise their hands. Relying on
Berkemer , the district court rejected the magistrate's recommenda-
tion. In Berkemer , the Supreme Court held that Miranda warnings are
not required when a person is questioned during a routine traffic stop
or stop pursuant to
Terry v. Ohio
,
392 U.S. 1
(1968).
Berkemer
,
468
U.S. at 437
between the deputies and the defendants was equivalent to a Terry
stop. The court reasoned that the initial approach and inquiry "was of
extremely limited intrusiveness and was entirely reasonable under the
Fourth Amendment." Joint Appendix ("J.A.") 100. We review for
clear error the district court's factual findings as to whether officers
sufficiently seized a person so as to require the giving of Miranda
warnings, and we review de novo the court's determination of
whether the officers had the reasonable suspicion necessary to war-
rant a Terry stop. United States v. Perrin , 45 F.3d 869, 871 (4th Cir.),
cert. denied , 115 S. Ct. 2287 (1995).
We note initially that we agree with the district court's determina-
tion that Deputy Cuchta and Deputy Fluharty had the requisite reason-
able, particularized suspicion necessary to conduct an investigatory
Terry
stop of the defendants.
See United States v. Cortez
,
449 U.S.
411, 417-18
duct investigatory stops). The defendants' proximity to the cultivation
site, the wire mesh found next to the defendants, and the apparently
recent watering of the marijuana plants provided the officers with the
requisite suspicion. We therefore turn to address whether the deten-
tion was "reasonably related in scope to the circumstances which jus-
tified the interference in the first place." Terry , 392 U.S. at 20 . As a
general rule, officers conducting a Terry stop are authorized to "take
such steps as [are] reasonably necessary to protect their personal
safety and to maintain the status quo during the course of the stop."
United States v. Hensley , 469 U.S. 221, 235 (1985).
Leshuk contends that the scope of the detention exceeded a Terry
stop and was a custodial interrogation for Miranda purposes because
a reasonable person in his position would have believed that he was
in custody and not free from the very beginning of the encounter until
the time the deputies placed Smith and Leshuk under arrest. This
objective belief is important to the assessment of whether a stop is
considered custodial given that "the initial determination of custody
depends on the objective circumstances of the interrogation, not on
the subjective views harbored by either the interrogating officers or
the person being questioned." Stansbury , 114 S. Ct. at 1529. Such an
objective belief, however, does not necessarily transform a lawful
Terry stop into a custodial interrogation requiring Miranda warnings.
As this Court has reasoned, "[t]he perception. . . that one is not free
to leave is insufficient to convert a Terry stop into an arrest. A brief
but complete restriction of liberty is valid under Terry ." United States
v. Moore , 817 F.2d 1105, 1108 (4th Cir.), cert. denied , 484 U.S. 965
(1987); see also United States v. Sinclair , 983 F.2d 598, 603 (4th Cir.
1993). In fact, Terry stops customarily involve "detentions where the
person detained is not technically free to leave while the officer pur-
sues the investigation." United States v. Manbeck , 744 F.2d 360,
376-77 (4th Cir. 1984), cert. denied , 469 U.S. 1217 (1985); see
Berkemer , 468 U.S. at 436 -37 (recognizing that traffic stops, which
do not require Miranda warnings, involve restricting the driver's free-
dom of action). "Although an individual may be´seized' within the
meaning of the Fourth Amendment when, ´in view of all the circum-
stances surrounding the incident, a reasonable person would have
believed that he was not free to leave,' Terry made it clear that a sei-
zure which is limited in its intrusiveness may be reasonable under the
Fourth Amendment." Sinclair , 983 F.2d at 604 (quoting United States
v. Mendenhall , 446 U.S. 544, 554 (1980) (plurality opinion)); see also
Berkemer , 468 U.S. at 439 . Instead of being distinguished by the
absence of any restriction of liberty, Terry stops differ from custodial
interrogation in that they must last no longer than necessary to verify
or dispel the officer's suspicion.
See Florida v. Royer
,
460 U.S. 491,
500
standards, we have concluded that drawing weapons, handcuffing a
suspect, placing a suspect in a patrol car for questioning, or using or
threatening to use force does not necessarily elevate a lawful stop into
a custodial arrest for Miranda purposes. See Moore , 817 F.2d at 1108
(citing cases); Manbeck , 744 F.2d at 377-80.
In applying these principles to this case, we conclude that the dis-
trict court did not commit clear error in determining that Leshuk was
not in custody until after the officers discovered the marijuana and
informed the defendants that they were under arrest. Leshuk specifi-
cally argues that the defendants were in custody because the deputies
did not make any effort to "reduce the intensity" of the initial contact,
such as by informing the defendants that they could leave or could
remain silent. Contrary to Leshuk's contention, however, a stop does
not become a custodial interrogation simply because officers do not
take such affirmative steps. Cf. United States v. Wilson , 895 F.2d 168,
172 (4th Cir. 1990) (failure to inform suspect that he may decline
search does not make search nonconsensual); Manbeck , 744 F.2d at
377 n.25 (officer's intentions that a suspect was not free to leave or
was under arrest do not necessarily transform a Terry stop into a cus-
todial arrest); United States v. Perate , 719 F.2d 706, 709 (4th Cir.
1983) (same).
As the above caselaw establishes, a noncustodial Terry stop
involves a brief detention of liberty; and the officers in this case did
not need to "reduce the intensity of the contact" because, as the dis-
trict court determined, the actions of the deputies and the turkey hunter 3
amounted to a limited Terry stop necessary to protect their safety,
maintain the status quo, and confirm or dispel their suspicions. The
deputies did not draw any weapons. They identified themselves as
police officers and informed the defendants that they were investigat-
ing a nearby marijuana site. Additionally, the deputies did not exceed
the permissible scope of a Terry stop after they frisked and began to
question the defendants. As the district court found, their conduct dur-
ing the questioning was neither coercive nor intimidating. Moreover,
their inquiry about the contents of the garbage bag and backpacks was
reasonably related to the purpose of the stop, given the fact that the
property was located next to the defendants and the fact that wire
mesh was attached to the packs. Officers may temporarily detain an
individual under Terry for purposes of questioning the individual or
attempting to obtain his consent to a search when reasonable suspi-
cion exists. See Berkemer , 468 U.S. at 439 (observing that Terry stops
typically involve the officer asking "a moderate number of questions
to determine [the detainee's] identity and to try to obtain information
confirming or dispelling the officer's suspicions"); United States v.
Brignoni-Ponce , 422 U.S. 873, 884 (1975) (holding that reasonable
suspicion of criminal activity warrants temporary seizure in order to
question detainees about suspicious circumstances). Furthermore,
although, at the beginning of the encounter, the turkey hunter held
Leshuk briefly by the arm and instructed the men to raise their hands
and call off their dog, these actions, especially without any further
display of force, were reasonable precautions for the deputies' protec-
tion and safety. See Sinclair , 983 F.2d at 602-03. We therefore affirm
the district court's refusal to suppress Leshuk's statements made dur-
ing the questioning.
B.
Concluding that Leshuk's statements were admissible, we now
address Leshuk's related argument that the district court erred in
denying Leshuk's motion to suppress the items found in the garbage
bag and the backpacks. The district court based its denial on its fac-
tual finding that Leshuk disclaimed ownership in the property, and we
review the district court's factual findings in its suppression determi-
nation for clear error. United States v. Rusher , 966 F.2d 868, 873 (4th
Cir.), cert. denied , 113 S. Ct. 351 (1992). The magistrate judge and
the district court both found that the evidence from the backpacks and
garbage bag should not be suppressed because the defendants had dis-
claimed ownership of the items. The law is well established that a
person who voluntarily abandons property loses any reasonable
expectation of privacy in the property and is consequently precluded
from seeking to suppress evidence seized from the property. See Abel
v. United States , 362 U.S. 217, 241 (1960); United States v. Clark ,
891 F.2d 501, 506 (4th Cir. 1989) (per curiam). Although a person
does not voluntarily abandon property when the abandonment results
from police misconduct, see United States v. Lara , 638 F.2d 892, 895
(5th Cir. 1981), we concluded above that the defendants' statements
were not elicited in violation of Miranda principles and resulted from
a lawful Terry stop.
From this conclusion that the statements were not the result of
police misconduct, we turn to consider whether the evidence suffi-
ciently established that Leshuk abandoned any property interest he
had in the backpacks and garbage bag. Leshuk specifically argues that
the evidence does not demonstrate that he abandoned his property
interest because the deputies could not remember exactly what the
defendants said when asked about the backpacks and garbage bag.
Furthermore, Leshuk emphasizes that Deputy Cuchta testified gener-
ally that both defendants denied ownership, but he attempted to recall
only what Smith said. In contrast, Deputy Fluharty testified that Smith
was silent and that Leshuk expressly denied ownership.
Despite these contentions, we conclude that the district court did
not commit clear error in determining that the deputies' testimony
sufficiently established that Leshuk denied ownership in the back-
packs and garbage bag. Although Deputy Cuchta could not remember
the words Leshuk used in disclaiming ownership, he testified gener-
ally that both defendants denied ownership. Furthermore, although
Deputy Fluharty could not recall the exact words Leshuk used, he was
adamant that Leshuk denied ownership of the property. During cross-
examination, Deputy Fluharty agreed with defense counsel's observa-
tion that "[t]he impression that [Leshuk] denied ownership is what is
left in your mind; is that correct?" J.A. 142. Because we find that
Leshuk abandoned the property, we hold that the deputies did not vio-
late Leshuk's privacy interest protected by the Fourth Amendment by
searching the backpacks and garbage bag. 4 Accordingly, we affirm
the district court's refusal to suppress the evidence found in the back-
packs and garbage bag.
C.
Leshuk next argues that the district court lacked subject matter
jurisdiction in this case because the federal statute under which he
was convicted, Section 401(a)(1) of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. § 841(a)(1) (the "Drug
Act"), 5 is unconstitutional in light of the Supreme Court's recent deci-
sion in United States v. Lopez , 115 S. Ct. 1624 (1995). Leshuk con-
tends that the Drug Act is unconstitutional because it regulates
intrastate drug activities, such as the marijuana manufacture in this
case, which do not substantially affect interstate commerce. See id. at
1630 (holding that a federal statute falls within the scope of Congress'
authority under the Commerce Clause if it regulates activity that "sub-
stantially affects" interstate commerce).
We have previously upheld the constitutionality of the Drug Act
against a Commerce Clause challenge by concluding that Congress
has the authority under the Commerce Clause to criminalize the intra-
state possession, distribution, and sale of controlled substances.
United States v. Atkinson , 513 F.2d 38, 39-40 (4th Cir. 1975). Lopez
does not cause us to alter our view. See United States v. Gonzalez ,
___ F. Supp. ___, 1995 WL 447271 (S.D. Cal. July 24, 1995) (reaf-
firming the constitutionality of the Drug Act after the Supreme Court
decided Lopez ); United States v. Bramble , ___ F. Supp. ___, 1995
WL 447273, at **10-11 (D. Haw. July 21, 1995) (same); Cf. Cheffer
v. Reno , 55 F.3d 1517, 1520-21 (11th Cir. 1995) (concluding that
Lopez did not disturb prior judicial determination holding the Free-
dom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248, con-
stitutional). In Lopez , the Supreme Court held that Congress exceeded
its authority under the Commerce Clause in enacting the Gun-Free
School Zones Act, 18 U.S.C. § 922(q) (the "Gun Act"). The Gun Act
made it a federal offense "for any individual knowingly to possess a
firearm at a place that the individual knows, or has reasonable cause
to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A) (1988 ed.,
Supp. V). In invalidating the Gun Act, the Court held that the Act "by
its terms has nothing to do with ´commerce' or any sort of economic
enterprise, however broadly one might define those terms." Lopez ,
115 S. Ct. at 1630-31. Furthermore, the Court noted that Congress
had made no express findings that the prohibited possession substan-
tially affected interstate commerce. The Court reasoned that, although
Congress is not obligated to make such findings, they aid the Court
in assessing whether the regulated activity substantially affects inter-
state commerce in cases where the effect is not readily apparent. Id.
at 1631-32.
In contrast to the firearm possession prohibited in the Gun Act, the
intrastate drug activities regulated in the Drug Act are clearly tied to
interstate commerce. In passing the Drug Act, Congress made
detailed findings that intrastate manufacture, distribution, and posses-
sion of controlled substances, as a class of activities, "have a substan-
tial and direct effect" upon interstate drug trafficking and that
effective control of the interstate problems requires the regulation of
both intrastate and interstate activities. See 18 U.S.C. § 801 (finding,
inter alia , that "[i]ncidents of the[drug] traffic which are not an inte-
gral part of the interstate or foreign flow, such as manufacture, local
distribution, and possession, nonetheless have a substantial and direct
effect upon interstate commerce"). This Court, as well as other courts,
has relied upon these findings in concluding that Congress may regu-
late intrastate drug activities under the Commerce Clause. See, e.g. ,
United States v. Visman , 919 F.2d 1390, 1393 (9th Cir. 1990), cert.
denied , 502 U.S. 969 (1991); Atkinson , 513 F.2d at 40; United States
v. Scales , 464 F.2d 371, 375 (6th Cir. 1972); United States v. Lopez ,
459 F.2d 949, 952-53 (5th Cir.), cert. denied , 409 U.S. 878 (1972).
Moreover, contrary to Leshuk's alternative contention, the Drug Act
is not unconstitutional as applied if his possession and cultivation
were for personal use and did not substantially affect interstate com-
merce. Although a conviction under the Drug Act does not require the
government to show that the specific conduct at issue substantially
affected interstate commerce, see Scales , 464 F.2d at 373, Lopez
expressly reaffirmed the principle that "where a general regulatory
statute bears a substantial relation to commerce, the de minimis char-
acter of individual instances arising under that statute is of no conse-
quence."
Lopez
, 115 S. Ct. at 1629 (quoting
Maryland v. Wirtz
,
392
U.S. 183, 197
553, 558 n.2 (7th Cir. 1995); Scales , 464 F.2d at 374-76. We thus
reject Leshuk's Commerce Clause challenge to the constitutionality of
the Drug Act.
D.
Finally, Leshuk raises other assignments of error contesting the dis-
trict court's denial of defense counsel's motion to withdraw and the
court's calculation of the weight of marijuana used in determining
Leshuk's sentence. Having considered the record and the briefs the
parties, we find that these assignments of error lack merit.
III.
For the foregoing reasons, we affirm Leshuk's conviction and sen-
tence.
AFFIRMED
signed a consent to search form. During the search, agents discovered
germinated marijuana seeds in the glove compartment and a marijuana
pipe behind the seat. In his briefs to this Court, Leshuk did not challenge
the admission of the evidence from his truck; but, at oral argument, his
counsel did briefly contest the admission of the evidence found in the
glove compartment. Although we need not reach this argument because
Leshuk raised it for the first time before this Court at oral argument, see
Hankerson v. North Carolina , 432 U.S. 233, 240 n.6 (1977); Hunt v.
Nuth , 57 F.3d 1327, 1338 (4th Cir. 1995); Jasperson v. Purolator Cou-
rier Corp. , 765 F.2d 736, 740-41 (8th Cir. 1985), we agree with the dis-
trict court that the "automobile exception" to the warrant requirement
applies and that the officers had probable cause to search Leshuk's vehi-
cle, including the glove compartment, see United States v. Gastiaburo ,
16 F.3d 582, 586 (4th Cir.), cert. denied , 115 S. Ct. 102 (1994). In this
case, the officers observed wire mesh and potting soil in plain view in
the bed of the truck.
the hunter was a law enforcement official.
Smith denied ownership. He is not a party to this appeal, and Leshuk
does not have standing to contest violations of Smith's Fourth Amend-
ment rights. See United States v. Taylor , 857 F.2d 210, 214 (4th Cir.
1988).
(a) Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a con-
trolled substance; . . . .
21 U.S.C. § 841(a)(1).