389 F.3d 944 (9th Cir. 2004), 04-50046, United States v. Smith

Docket Nº:04-50046.
Citation:389 F.3d 944
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kory Ray SMITH, Defendant-Appellant.
Case Date:November 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 944

389 F.3d 944 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Kory Ray SMITH, Defendant-Appellant.

No. 04-50046.

United States Court of Appeals, Ninth Circuit

November 23, 2004

Argued and Submitted Sept. 14, 2004.

Page 945

[Copyrighted Material Omitted]

Page 946

Michael Petrik, Jr., Trial Attorney, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Kevin M. Mulcahy, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-03-01859-IEG.



Kory Ray Smith entered a conditional guilty plea to the charge of knowing possession of counterfeit currency, in violation of 18 U.S.C. §§ 2 and 472. He reserved the right to appeal the district court's denial of his pre-trial motion to suppress evidence. Smith now argues that the district court erred in (1) reversing its initial grant of his motion to suppress, (2) denying the motion to suppress, and (3) applying an incorrect standard of review to adjust his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court.


Kory Ray Smith was driving a Chevrolet Camaro at 96 miles per hour with the high beam lights on when he passed a California Highway Patrol ("CHP") car moving in the opposite direction. CHP Officers Eric Price and Timothy Ratcliff pulled Smith over. When Officer Price approached the Camaro and requested Smith's license and registration, Smith said that he did not have any identification with him. Smith stated that he was licensed to drive in the State of Arizona. Officer Price then asked Smith to get out of his car and walk over to the patrol car.

At the front of the patrol car, Officer Price asked Smith his name, date of birth, and home address. Smith responded that his name was Vernon Paul Smith, that he was born on January 27, 1971, and that he lived on Fox Street in Mesa, Arizona. Officer Price contacted CHP dispatch to determine whether the California or Arizona driver's license databases included a license that matched this information. CHP dispatch reported that it found no match. Officer Price confronted Smith with this fact, but Smith maintained that the information he had provided was accurate. Officer Price then approached the passenger of the Camaro, Jaime Beth Cottle, and inquired as to the driver's name. Cottle responded that she only knew his first name, which was Vernon, and that she had only known him for about a month.

Officer Price returned to the front of the patrol car and, with Officer Ratcliff at his

Page 947

side, asked Smith whether he knew his social security number. Smith provided the officers with a social security number. Dispatch then reported that the social security number corresponded to Vernon Paul Smith of Mesa, Arizona, born January 27, 1970. Dispatch also informed the officers that Vernon Smith had brown hair and eyes, stood six feet tall, and weighed 200 pounds. Officers Price and Ratcliff observed that Smith had blue eyes, stood five feet eight inches, and weighed approximately 175 pounds. Officer Ratcliff informed Smith of this discrepancy, while Officer Price patted Smith down in search of a wallet. Finding no wallet, Officer Price again asked Smith to divulge his identity.

While Officer Price was questioning Smith about his identity, Officer Ratcliff returned to the Camaro and searched it for Smith's identification. After a brief search of the car's interior, Officer Ratcliff uncovered a black wallet wedged under the rear seat. The wallet contained a driver's license and an identification card, each of which had Smith's picture on them. The driver's license was issued under the name Steven Stone, and was eventually discovered to be fake. The identification card was issued from the State of Arizona to Kory Ray Smith and was authentic.

While Officer Ratcliff searched the car, Officer Price continued to question Smith. Smith finally conceded that he had provided the officers with his brother's identification information, and that his real name was Kory Ray Smith. Officer Price contacted dispatch with the new date of birth Smith had provided and confirmed that Smith was in fact Kory Ray Smith. Officer Price then arrested Smith for falsely impersonating another and placed him in the patrol car. Once Smith was in the patrol car, Officer Ratcliff returned from searching the Camaro and informed Officer Price that he had found Smith's identification. Officer Price stated that Smith had already disclosed his identity.

Because the wallet contained currency, Officer Ratcliff asked Smith whether he wanted to leave the money in the wallet during booking or to leave it with Cottle. Smith told Officer Ratcliff to give the money to Cottle. When Officer Ratcliff took the money out of the wallet he discovered that the bills had neither the texture nor the appearance of real money. After comparing the bills in Smith's wallet to bills in their own, the officers concluded that the currency in the wallet was counterfeit. Officer Ratcliff then returned to the Camaro and examined a $20 bill that he had previously noticed on the floor, which also appeared to be counterfeit.

On July 2, 2003, a federal grand jury indicted Smith for knowing possession of falsely made, forged and counterfeited obligations and securities of the United States, in violation of 18 U.S.C. §§ 2 and 472. Smith moved to suppress the evidence that the officers discovered in the Camaro, arguing that the searches did not fall under either the search incident to an arrest exception or the automobile exception to the Fourth Amendment prohibition on warrantless searches. Initially, the district court agreed and granted Smith's motion to suppress. Then the government moved for reconsideration, contending that no party had briefed the question of whether a search incident to an arrest could constitutionally precede the arrest. The district court granted the government's motion for reconsideration.

After reconsidering, the district court held that (1) the search was valid as incident to the arrest because the officers had probable cause to arrest Smith before Officer Ratcliff searched the Camaro, and (2) Officer Ratcliff had probable cause to search the car under the automobile exception.

Page 948

In so holding, the district court found that "this was a search incident to arrest, because it all happened at the same time"; "[t]he search started before the arrest, but it was completed ... after the arrest. By the time Officer [Ratcliff] started to search the car, they already knew Smith was lying. They already knew he had given false information. They could have arrested him right there."

Smith entered a Stipulation and Conditional Plea Agreement with the government on November 6, 2003. Although Smith waived "any right to appeal or collaterally attack the conviction and sentence," he retained the right to appeal the district court's suppression ruling and any "sentence in excess of the high end of the guidelines range based on an adjusted offense level of 13." During Smith's plea colloquy, the district court explained this waiver to Smith and Smith indicated that he understood that by pleading guilty he would waive the right to appeal any sentence that did not exceed the high end of an offense level of 13.

On January 30, 2004, the district court sentenced Smith based on "a total adjusted offense level of 13," and a criminal history category of IV. The corresponding guideline range for this combination is 24 to 30 months. The district court sentenced Smith in accordance with this range, "to custody for a period of 24 months."


Smith raises several arguments on appeal. First, he claims that the district court's dismissal of his motion to suppress was improper, given that the court had previously granted the motion. Second, Smith claims that the motion to suppress should have been granted because the evidence in question was the fruit of a warrantless search, and did not fall under any recognized exception to the Fourth Amendment's prohibition on warrantless searches and seizures. Finally, Smith challenges his sentence on the ground that the district court improperly used the "preponderance" rather than the "clear and convincing" evidentiary standard to apply a sentencing adjustment. We address each of these claims in turn.

A. The District Court's Reconsideration of the Motion to Suppress

The district court did not err in reconsidering its initial grant of Smith's motion to suppress. We have held that a district court may reconsider its prior rulings so long as it retains jurisdiction over the case. City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001). Because the district court never relinquished jurisdiction over Smith's case, even after it granted his motion to suppress, the court retained the power to reconsider its own ruling.

"Under the 'law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case." Richardson v. United...

To continue reading