10 F.3d 809 (9th Cir. 1993), 92-50318, U.S. v. Pratt

Docket Nº:92-50318.
Citation:10 F.3d 809
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Arlington PRATT, Defendant-Appellant.
Case Date:November 26, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 809

10 F.3d 809 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Arlington PRATT, Defendant-Appellant.

No. 92-50318.

United States Court of Appeals, Ninth Circuit

November 26, 1993

         Editorial Note:

         This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

        Argued and Submitted Nov. 2, 1993.

        Appeal from the United States District Court for the Central District of California, No. CR 91-953-JSL; J. Spencer Letts, District Judge, Presiding.

        C.D.Cal.

        AFFIRMED.

        Before: FLETCHER, PREGERSON, and NORRIS, Circuit Judges.

        MEMORANDUM [*]

        Thomas A. Pratt appeals from his jury trial conviction for possession with intent to distribute cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1); use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

        BACKGROUND

        Thomas Pratt is currently serving a 180 month sentence after a jury convicted him of possession with intent to distribute drugs, use of a firearm in relation to drug trafficking, and possession of a firearm by a felon, in violation of federal statutes.

        In October 1991, several police officers arrested Pratt in his home, pursuant to a valid arrest warrant for witness intimidation. The warrant was based on alleged threats made to a victim of kidnapping and torture. (Hennigan Decl., GER, p. 2). At the time of his arrest, Pratt lived in a converted garage that consisted of one small room and a bathroom.

        Officer Hennigan entered the room first and found Pratt sitting on the bed with his girl friend. (RT 1/27/92, p. 63). Hennigan asked Pratt to leave the room. Officer Ruegg handcuffed him and took him to a police car. (RT 1/27/92, pp. 107-09). Pratt's girl friend also left the room and was handcuffed. Hennigan then looked around the room to be sure no one else was there before he put away his gun.

        Because Hennigan knew that Pratt was a gang member with a reputation as a "shooter" and thought that Pratt might be armed, he looked around the room for guns. (RT 1/27/92, p. 98). He noticed a television located approximately fifteen feet away from the bed where Pratt had been sitting. On top of the television, he saw to clear plastic baggies containing a white powdery substance that he believed to be cocaine. (RT 1/27/92, pp. 70-71). He also saw a microwave and some razor blades near the plastic baggies. (RT 3/11/92, pp. 126, 128). He did not see any crime evidence on the bed. What happened next was a matter of dispute in the district court. According to Hennigan, he looked at a recliner chair located next to the bed and noticed a plate protruding from under the side. On top of the partially-exposed plate, he saw a third clear plastic baggie that contained a substance that appeared to be rock cocaine. (RT 1/27/92, pp. 71-77). He moved the chair slightly so as not to disturb any potential evidence on the plate. (RT 1/27/92, p. 77). According to Hennigan, he would not have lifted the chair if the plate with the baggies had not been protruding. (RT 1/27/92, p. 83). According to Pratt, by contrast, the plate was not protruding, because he had placed it under the middle of the chair. (RT 1/30/92, p. 10).

        Under the chair, Hennigan found more rock-like substances in a black film container, three loaded semiautomatic handguns, and two boxes of ammunition. (RT 1/27/93, p. 83; RT 3/11/92, pp. 129-30, 134). Hennigan's entire search lasted five minutes. (RT 1/27/92, p. 71).

        Pratt filed a pre-trial motion to suppress the seized evidence. The district court held a two-day hearing in which Hennigan and Pratt testified as described above. Finding that Hennigan's credibility had been damaged by Pratt's testimony, (RT 1/30/92 pp. 19, 30), the court concluded that the evidence under the chair was not in plain view. (RT 1/30/92, p. 32). Pratt's counsel conceded that the cocaine on top of the television was in plain view, (RT 1/30/92, p. 22), and the court found that this evidence was validly seized under the plain view doctrine.

        The court also expressed willingness to admit all of the evidence, not just the cocaine on top of the television, based on the search incident to arrest doctrine. "I'm also ... prepared to hold that a search specifically for guns in this circumstance, even if it hadn't been plain view[,] ... would have been lawful." (RT 1/30/92, p. 115). "They were dealing with somebody that they had reason to believe might be armed and dangerous." (RT 1/30/92, p. 122). "[T]hey had a right to search for guns in connection with the arrest." (RT 1/30/92, p. 116). Accordingly, the court denied Pratt's motion to suppress the seized evidence.

        At trial, the jury convicted Pratt. Pratt unsuccessfully...

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