                              UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
