MARTIN REIDINGER, District Judge.
The United States Attorney named the Defendant in a single-count Bill of Information and charged him with the petty offense of removing property of the United States administered by the Forest Service, in violation of 36 C.F.R. § 261.9(b). [Doc. 1]. The Defendant proceeded to trial before the Magistrate Judge on September 30, 2014, and was convicted that day. [Doc. 10-1]. Magistrate Judge Howell sentenced the Defendant to 15 days' imprisonment. [Doc. 1-1]. The Magistrate Judge entered his Judgment on October 10, 2014. [Id.]. The Defendant timely filed his Notice of Appeal that same day. [Doc. 2].
There is no disagreement about the facts of this case. As stated by defense counsel prior to the commencement of Defendant's trial, "I don't think there's going to be a lot of dispute of the facts if, really, any. It's just what this conduct constituted." [Doc. 10-1 at 3]. With that said, the facts established at trial were as follows.
Brian Southard, a criminal investigator with the United States Forest Service, testified that he was the case agent for a multi-year undercover investigation into illegal hunting known as "Operation Something Bruin." [Id. at 5]. During this investigation, Southard worked with North Carolina Wildlife Resources Commission Sergeant Chad Arnold. [Id. at 6]. As one facet of this investigation, Arnold contracted to be taken on guided bear hunts by an outfitter named Jerry Parker. [Id. at 7]. Through Parker, Arnold (and thus Southard) came to know about the Defendant. [Id.]. In like manner, Southard became familiar with some illegal bear baiting sites. [Id.]. According to Southard, one bait site had features similar to others in that:
[Doc. 10-1 at 7]. Further, upon examining various bait sites, Southard noticed that one such site had a game camera set up to record activity near the bait. [Id. at 8].
Southard focused part of his investigation on one bait site in Macon County, North Carolina, known as the "rough road" bait site. [Id.]. Taking a cue from the baiters, in November 2012 Southard set up a Forest Service game camera "in an attempt to determine who was placing the bait in the culvert." [Id. at 9].
On December 7, 2012, Southard went to check the camera at the rough road bait site as well as to see if he could discern any human or bear activity there. [Id.]. He did not observe any signs of activity and, after looking at the game camera to see that it was still in the same place he had previously left it, Southard left the bait site without touching the camera. [Id.]. As Southard was driving away from the rough road site on Highway 106 South, he happened to pass the Defendant who was traveling in the opposite direction. [Id. at 10]. Southard quickly turned his vehicle around and caught up with the Defendant's vehicle, a Toyota pickup. [Id.]. Southard followed the Defendant until
Southard fell in behind the Defendant and followed him down Highway 106 South. Eventually, the Defendant turned off of Highway 106 at the residence of Jack Billingsley whom Southard knew to be a hunting associate of both the Defendant and Jerry Parker. [Id. at 15]. After observing the Defendant turn into Billingsley's driveway, Southard continued past Billingsley's home, made a u-turn, and traveled all the way back to the rough road bait site. [Id.]. At the bait site, Southard parked his vehicle and walked to the location where he had set up the game camera only to find the camera missing. [Id. at 16]. Southard returned to his vehicle and drove back toward Billingsley's home. Upon driving past the Billingsley residence, Southard noticed that the Defendant's truck was no longer there so he contacted a colleague at the Georgia Department of Natural Resources and requested help in locating the Defendant. [Id.]. Approximately 30 minutes later, Southard learned that two Rabun County, Georgia, Sheriff's deputies had stopped the Defendant near his home. Southard traveled to the Defendant's home to interview him. [Id.].
When Southard arrived to meet the Defendant, he first spoke briefly with the Defendant and then asked him for consent to search his truck. [Id. at 17]. The Defendant consented to the search of his truck which resulted in Southard's seizure of an "SD Card."
On cross examination, Southard admitted that the game camera he set up at the rough road bait site was placed on private property, "probably a quarter of a mile" from the nearest Forest Service boundary. [Id. at 34]. Further, he testified that he conducted no investigation into the ownership of that land [Id. at 33], nor did he have a search warrant authorizing him to place the camera there. [Id. at 50]. As for the game camera itself, Southard stated it was purchased with government funds and was already in the Forest Service's inventory prior to the initiation of Operation Something Bruin. [Id. at 36]. Southard stated the camera was a nondescript Reconyx game camera [Id. at 55] and showed no signs or markings on its exterior indicating that it was the property of the United States in general, or of the Forest Service in particular.
With regard to how the camera operated, Southard explained:
[Id. at 39]. The only way to "disarm" or shut off the camera is to open the back compartment. [Id. at 38]. Inside the back compartment is where the batteries and the SD Card are held. [Id. at 28-29]. Southard stated that he was the primary person to service the camera's batteries and replace the SD Card. [Id. at 29]. He admitted, however, that Sergeant Chad Arnold and other officers could have serviced the camera without him present on December 4, 2012, three days before the Defendant took the camera from the bait site. [Id. at 30-31]. Likewise, according to Southard, it was also possible that his business card could have fallen out of the camera. [Id. at 28]. Arnold was called as a witness and testified that each time he serviced the game camera at the rough road site, including December 4, 2012, Southard's business card was inside the camera. [Id. at 66-67]. Arnold, however, could not recall whether Southard's business card had any handwriting on it. [Id. at 68]. Southard testified that he never found his business card on December 7, 2012: it was not in the camera when he seized it, or within the Defendant's vehicle, or on the Defendant's person. [Id. at 45].
Prior to trial, Southard viewed the images stored on the SD Card
The Court has jurisdiction for this appeal pursuant to 18 U.S.C. § 3402, and the scope of the appeal is the same as the review of a district court's judgment by a court of appeals. Fed.R.Crim.P. 58(g)(2)(D). On appeal, the Fourth Circuit reviews legal determinations of the district court de novo. United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir.2005). Due to the nature of this appeal, there being no factual disputes, the Court will use the de novo standard.
The Defendant raises two issues in this Court, both of which challenge legal determinations. First, the Defendant claims the Magistrate Judge "erred by denying Appellant's Rule 29 motion for a verdict of acquittal based upon the inapplicability of 36 C.F.R. § 261.9(b) to the facts of this case." [Doc. 9 at 7]. Second, the Defendant claims he is entitled to be acquitted because "the United States Forest Service has no authority or jurisdiction to investigate crimes allegedly occuring [sic] on private lands nor to conduct surveillance upon private lands." [Id. at 9].
The Defendant was convicted of removing personal property belonging to the Forest Service (the camera and SD card) in violation of 36 C.F.R. § 261.9(b). As his first appellate argument, the Defendant asserts that 36 C.F.R. § 261.9(b) only prohibits the removal of Forest Service personal property if it is present on land administered by the Forest Service. Since the Forest Service game camera at issue in this case was taken by the Defendant from private land, Defendant argues that he cannot be convicted under 36 C.F.R. § 261.9(b). In short, the Defendant argues that the alleged violation charged in the Information fails to state an offense.
The Forest Service Regulation at issue states, in relevant part:
The following are prohibited:
36 C.F.R. § 261.9(b). The scope of this prohibition is defined by 36 C.F.R. § 261.1 which states:
36 C.F.R. § 261.1. Defendant argues that subsection (a)(1) extends only to personal property removed from land within in the National Forest System or from on a National Forest System road or trail. In this, Defendant is correct — as far as subsection (a)(1) is concerned. The Defendant, however, fails to recognize that it is subsection (a)(2) that applies to his actions. Read together, sections 261.9(b) and 261.1(a)(2) make it a petty offense to remove any personal property of the United States administered by the Forest Service which removal affects, threatens, or endangers such personal property.
In order to come within the purview of § 261.1(a)(2), an item of property must be personalty (such as a camera or an SD card), or something severed from realty (such as a tree or timber). Clearly, the Defendant's removal of a Forest Service camera "affected" it, especially since his removal constituted a conversion of the camera. Further, the Defendant's removal of the SD Card from the camera endangered the Card because his continued possession of it after his disposal of the camera manifested the Defendant's intent to permanently deprive the Forest Service of it and, more importantly, any images stored on it. By his argument, Defendant seeks to add language to the statute that simply is not present. Section 261.1(a)(2) reads, "[a]n act or omission affects ... property of the United States administered by the Forest Service." Defendant seeks for this court to interpret this to mean "an act or omission affects ... real property...." The regulation contains no such limitation. Moreover, the regulations specifically define the term "National Forest System" to mean the real property administered by the Forest Service. 36 C.F.R. § 261.2. Therefore, if the limitation Defendant argues had been intended, section 261.1(a)(2) would read "an act or omission affects ... the National Forest System." In short, the Defendant asks this Court to rewrite the regulation.
Applying the plain meaning of the words used in the regulation, Defendant's removal of the camera and SD Card (personal property) belonging to the Forest Service constituted a violation of 36 C.F.R. § 261.9(b). For this reason, the Defendant's first assignment of error is overruled.
As his second appellate argument, the Defendant asserts the case against him should be dismissed because "a United States Forest Service Criminal Investigator conducted an unwarranted investigation with the use of a United States Forest Service surveillance camera upon privately owned lands for which the United States Forest Service had not obtained a search warrant or even permission to enter upon." [Doc. 9 at 9]. The Defendant cites to no authority in his brief to support this argument, the entirety of which consumes only two paragraphs of such brief. [Id.]. Correctly framed, however, the question presented is whether the trial court should have suppressed the game camera and all images stored on the SD Card (and thereafter acquit the Defendant) because of the allegedly unconstitutional search conducted by the Forest Service agent on private property.
The Fourth Amendment's guarantee of the people's right "to be secure in their persons, houses, papers, and effects," protects individuals under a number of legal arrangements. U.S. Const. amend. IV. As both the majority and dissenting opinions in United States v. Gray, 491 F.3d 138 (4th Cir.2007), recognized, the Fourth Amendment safeguards the privacy interests of owners, Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925), boarders, McDonald v. United States, 335 U.S. 451, 454-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and tenants, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), of a home, apartment, or other dwelling place. Co-tenants, co-owners, and co-occupants can also avail themselves of the Fourth Amendment's protections. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Likewise, travelers are entitled to be free from unreasonable government scrutiny in their hotel and motel rooms. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Gray, 491 F.3d at 144. The Fourth Amendment's protections, however, are not limited to "owners" or those similarly situated. "[A] person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place." Rakas v. Illinois, 439 U.S. 128, 142, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Such persons protected can include overnight guests, Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), employees in shared offices, Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120,
To have standing to complain of an alleged unconstitutional search, however, the aggrieved person must demonstrate that he has a legitimate expectation of privacy in the place searched. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In this matter, the place searched was private property known as the rough road bait site. The Defendant failed to address this issue by a motion to suppress as required by Rule 12 of the Federal Rules of Criminal Procedure and has thus waived the issue. See, Fed.R.Crim.P. 12(b)(3)(C) & (e) (effective until Nov. 30, 2014) (motions to suppress evidence must be raised before trial and the failure to do so constitutes waiver). Even if this issue remained cognizable on appeal, Defendant still would be unable to prevail. He exercised his constitutional right to remain silent at trial and to not produce any evidence whatsoever. Accordingly, the Court has no evidence before it of what "legally sufficient interest" the Defendant had in the place encompassing the rough road bait site, if any, that would give rise to his subjective expectation of privacy "society is prepared to recognize as reasonable." Smith, 442 U.S. at 740, 99 S.Ct. 2577. The Defendant, therefore, has established no standing to raise this Fourth Amendment argument. Accordingly, the Defendant's argument on this second issue should be dismissed.
