# United States v. Robert Deleon, Jr. > Court of Appeals for the Ninth Circuit · February 7, 1992 · 955 F.2d 1346 URL: https://www.frixlaw.com/law-library/cases/9482574 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Robert DeLEON, Jr., Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** February 7, 1992 - **Citations:** 955 F.2d 1346; 92 Daily Journal DAR 1870; 92 Cal. Daily Op. Serv. 1175; 1992 U.S. App. LEXIS 1434; 1992 WL 18477 - **Precedential status:** Published - **Opinion:** Dissent by Walker - **Judges:** Hug, Nelson, Walker - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482574 ## Opinion text WALKER, District Judge, dissenting: I respectfully dissent from the majority’s disposition of this case. The majority apparently concedes that a deliberate or reckless omission by a government official who is not the affiant can be the basis for a Franks suppression. That any court could entertain notions to the contrary is, frank *1352 ly, incomprehensible. The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. Corrupt government officials cannot keep from affiants information material to the determination of probable cause and by this scheme of affidavit laundering evade their constitutional obligations. The Supreme Court heeded this point in Franks v. Delaware, 438 U.S. 154 , 163-64 n. 6, 98 S.Ct. 2674 , 2680-81 n. 6, 57 L.Ed.2d 667 (1978), and at least one circuit has explicitly stated this tacit but obvious premise. United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984). Regrettably, the majority does not apply the logic of these decisions to the facts at bar. The possibility of official misconduct in applying for an affidavit is particularly strong in a case such as this, involving a defendant who had for years been suspected of marijuana moonshining. The authorities showed appropriate restraint in the past in not applying for a warrant based on a variety of anonymous and hearsay statements, particularly given the non-exigent nature of the suspected crime, involving neither violence nor mobile contraband. This restraint should not have been abandoned. If the omitted information had been included in the application for the search warrant, no reasonable person could have found probable cause to issue the warrant. One of the alleged eyewitnesses told Investigator Jurovich that he neither saw nor smelled marijuana on appellant’s property. Yet Jurovich purports to have construed this denial as a refusal to cooperate, and so characterized the conversation when he related his information to the affiant, Sergeant Shay. DeLeon’s neighbor, Frank Sharp, claimed that Frank and Charles Linedecker and Loren Brown told him they saw and smelled marijuana growing on DeLeon’s property. Brown, however, denied seeing marijuana, and said he was not sure that the Linedeckers were able to see any, either. The interview transcript appended to the application for a warrant makes this clear. The warrant application does not include the denial of Charles Linedecker, one of the two men who allegedly attempted to look inside the building that contained the marijuana. Since both percipient witnesses who were questioned denied seeing marijuana, Sharp’s hearsay statement to the contrary should be seen for what it was — the product of Sharp’s vivid imagination, hostility to his neighbor, or both. The only remaining peg on which to hang the warrant is Brown’s claim to have smelled marijuana on DeLeon’s property. But there was no finding that Brown was qualified to recognize the odor of growing marijuana, which doubtlessly differs from the odor of cured or burning marijuana. To the extent that the Supreme Court’s dictum in Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948), can be any guide, it clearly states that odors can be the basis for probable cause if a magistrate “finds the affiant qualified to know the odor.” Id. at 13 , 68 S.Ct. at 369 . Nothing in this record indicates that Brown is qualified to detect the odor of the growing plants, save his claim that he had been around an unspecified form of marijuana some years prior. A warrant simply cannot be based on the claim of an untrained or inexperienced person to have smelled growing plants which have no commonly recognized odor. The majority’s acceptance of this smell theory opens a remarkable new front in the war on drugs. But in so doing, the majority unwittingly turns this effort into an assault on the Constitution: a person’s private property cannot be invaded by the government absent probable cause. I also take issue with the majority’s application of the mandatory minimum sentencing provisions of 21 U.S.C. § 841 (b)(1)(B)(vii). An enhancement provision that is based on the sheer number of plants, without regard for drug abuse potential, is not rationally related to a legitimate government interest. This circuit has justified the quantity approach to sentencing, as opposed to a purity approach, by ascribing to Congress a so-called “market-oriented approach” in passing the Anti-Drug Abuse Act of 1986. United States v. *1353 Savinovich, 845 F.2d 834, 839 (9th Cir.1988). Albeit seriously misnamed, as there is nothing market-oriented about it, this approach focuses its wrath upon those who distribute at the retail level, by increasing the penalties the closer the product is to ultimate users. This, presumably, is because the harm to society from these individuals is more immediate than from those farther up the distributive chain. Accordingly, marijuana producers under the 1986 Act are sentenced based on the weight of the mixture containing marijuana without regard to the purity of the substance. This presupposes that marijuana purchasers will accept any mixture as long as it contains some marijuana, and are indifferent to its purity. That dubious proposition aside, the point here is that the 1986 Act also introduced the concept of enhanced sentencing for marijuana based on a counting of plants. Pub.L. 99-570, § 1003 (a)(1)(C). This concept, extended further in 1988, conflicts with the “market-oriented” presumption that quantity increases and purity drops the nearer that drugs are to the streets. That the inverse is true for marijuana had long been recognized by Congress, as marijuana had been defined since 1970 to include only the portions of plants that have drug abuse potential. 21 U.S.C. 802(16). It makes no sense to weigh only the portions of cut plants that have drug abuse potential, but when it comes to growing plants to count them regardless of their drug abuse potential. This establishes a perverse punishment scheme which would penalize more heavily marijuana producers who are caught earlier rather than later in the production process even though their efforts supposedly pose less of a threat to society. The count of all plants regardless of drug abuse potential is a poor proxy for the intent of the producer. The expert testimony in the record at bar indicates that a producer should know that half of his plants will turn out male and 70% of his seedlings and cotyledons will not reach maturity. A producer intending to produce a given retail quantity of marijuana must have a larger number of plants early in the process than late. If the court does not construe “plants” to mean marijuana plants with drug abuse potential, the anomalous situation could arise in which a person with 100 male plants, posing no immediate threat to society, must receive a minimum sentence of five years, but a street dealer with 99 kilograms of marijuana must not. This is a system that punishes producers of marijuana plants less harshly, but retailers of processed marijuana more severely, the closer their respective wares are to market. To the extent that marijuana production and distribution are integrated, the punishment varies greatly depending when in the process the arrest is made. The approach lacks a consistent connection to the supposed threat to society. I am aware of nothing in the legislative history to indicate that the 100 plant threshold is already the result of a discounting based on drug abuse potential, or that there is a rational distinction between the treatment of marijuana and other drugs when it comes to sentencing. The majority’s reading of 21 U.S.C. § 841 (b)(1)(B) results in a classification scheme that violates the due process and equal protection guarantees of the United States Constitution. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482574. Public record. Not legal advice.