UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. Tri-
vette, Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Walter C. Holton, Jr., United States Attorney, Timika
Shafeek, Assistant United States Attorney, Greensboro, North Caro-
lina, 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Unpublished opinions are not binding precedent in this circuit.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 Depart-
ment 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 leav-
ing. 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 dis-
cussion 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 Follow-
ing 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 mari-
juana which he had before. Sampson then noticed that the odor
appeared to be coming from the Pathfinder, specifically from the pas-
senger's side window which was in the down position. Prompted by
this odor, Sampson looked through the open window and saw a mari-
juana cigarette in the ashtray. Based upon this discovery, Sampson
called Brown back out of the house, arrested him for simple posses-
sion of marijuana, and searched the Pathfinder. This search, which
Sampson described as being incident to arrest, revealed a loaded fire-
arm 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 con-
victed 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 prop-
erty 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. Spe-
cifically, Brown argued that Sampson's claim that the cigarette was
still burning after his two-hour observation of the Pathfinder was sim-
ply beyond credulity. Alternatively, Brown argued that even assuming
the existence of the cigarette, the search could not be justified as inci-
dent 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 war-
rant.

The district court rejected these arguments, finding that Sampson
had the authority to approach the porch on private property and ques-
tion 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 sur-
rounding 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 evi-
dence can be plainly viewed, the officer has a lawful right of access
to the object itself, and the object's incriminating character is immedi-
ately 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 analy-
sis, 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 prop-
erty 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 Samp-
son was able to observe the marijuana through an open window and
therefore his act of looking into the Pathfinder did not violate any pri-
vacy 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 loca-
tion 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 Path-
finder 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 discov-
ery 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 poten-
tially 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 fire-
arm was not in Brown's possession, but was in the possession of
another. In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme

                     5
Court held that to establish a due process violation for failure to pre-
serve such evidence a defendant must show: (1) that the evidence pos-
sessed 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 ele-
ments). 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 test-
ing, 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 pres-
ented 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 the-
ory, 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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