United States v. Mulligan

• Decision Date: 09 November 1973
• Docket Number: 73-1717.,No. 73-1715,73-1716,73-1715
• Citation: 488 F.2d 732
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Albert MULLIGAN et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 732 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Charles Albert MULLIGAN et al., Defendants-Appellants.

Nos. 73-1715, 73-1716, 73-1717.

United States Court of Appeals, Ninth Circuit.

November 9, 1973.

Jack M. Schulman (argued), Cleveland, Ohio, for defendants-appellants.

William D. Keller, U. S. Atty., Robert C. Bonner, Asst. U. S. Atty. (argued), for plaintiff-appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and SCHWARTZ,^* District Judge.

OPINION

DUNIWAY, Circuit Judge:

Mulligan, Christopher and Dinsio appeal from convictions on three counts of an indictment. Count I charged conspiracy to burglarize the United California Bank (hereinafter referred to as the "Bank") in Laguna Niguel, California, in violation of 18 U.S.C. § 371; Count II charged entering the Bank on or about March 24-27, 1972, with intent to commit larceny, in violation of 18 U.S.C. § 2113(a); Count III charged theft of money and property of a value exceeding $100, in violation of 18 U.S.C. § 2113(b).

I. Searches and Seizures

Appellants challenge the legality of three searches and seizures.

a. The Search in Christopher's Residence.

Viewing the evidence in the light most favorable to the government, the following are the facts. At about 7:30 in the morning, Christopher was arrested by FBI agents at his Cleveland, Ohio, residence pursuant to a parole violation warrant. When arrested in the upstairs hallway, Christopher was wearing only pajama shorts. Once under arrest, Christopher entered his bedroom, followed by the FBI agents, so that he could obtain clothing, and was ordered to sit on his bed. He was not handcuffed.¹ Between two and one-half feet and three and one-half feet from where Christopher was seated was a closet, the door to which was open.

Immediately after Christopher was ordered to sit on the bed, he stood up without permission and picked up a pair of undershorts lying next to the closet. This action surprised the agents, and Christopher was ordered to sit back on the bed. Within 45 to 60 seconds, Christopher again stood up and moved toward the closet. Agent Robertson, standing between the bed and the closet, put his hand out to stop Christopher; another agent ordered him to return to the bed and asked him what he wanted. Christopher replied that he wanted a pair of pants, whereupon agent Robertson took a pair of pants hanging on the closet door and passed them to another agent, who emptied the pockets and handed them to Christopher.

Agent Robertson then drew his gun and "brushed the clothing that was hanging in the closet aside to see if there was anybody hiding in there." He felt "a large lump in the bottom of a garment bag, a hard lump that could have been a weapon." He then reached into the garment bag and pulled out a package of money, which contained approximately $30,000 in cash.

Appellants argue that the search violated Chimel v. California, 1969, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, and its progeny. Chimel delineated the types of searches permissible incident to a valid arrest:

There is ample justification, therefore, for a search of the arrestee\'s person and the area "within his immediate control" — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. 395 U.S. at 763, 89 S.Ct. at 2040.

The real issue, then, is whether the closet was within Christopher's "immediate control;" was it an "area from within which he might gain possession of a weapon . . . ."? It was not unreasonable for agent Robertson to search the open closet to see if someone was hiding there with a weapon to help Christopher resist arrest or effect his escape. The search was additionally justified by Christopher's two sudden movements toward the open closet. Although he was ostensibly trying to reach his clothes, these two actions surprised the agents and aroused agent Robertson's suspicions that someone might be hiding in the closet with a weapon. Under these circumstances, the closet was within Christopher's immediate control; it was an "area from within which he might gain possession of a weapon. . . ." Id. (emphasis added) See also United States v. Wysocki, 5 Cir., 1972, 457 F.2d 1155, 1160; United States v. Patterson, 10 Cir., 1971, 447 F.2d 424; Application of Kiser, 8 Cir., 1969, 419 F.2d 1134, 1137.

Appellants argue that this case does not fall within the ambit of Chimel, citing United States v. Mapp, 2 Cir., 1973, 476 F.2d 67 and United States v. Shye, 6 Cir., 1973, 473 F.2d 1061. In Mapp, the defendant, a known seller of heroin, was seen to enter the apartment of one Linda Walters carrying a large brown paper bag. After he left the apartment ten minutes later without the bag, federal narcotics agents forced their way into the apartment, arrested Ms. Walters in her bedroom, and demanded the package that Mapp had left earlier. She pointed to a closed closet in the bedroom. A search of the closet produced a brown paper bag containing two kilograms of heroin. The court held that this evidence must be suppressed. The difference between that case and the one before us is apparent.

In United States v. Shye, supra, the Sixth Circuit affirmed the District Court's suppression of a bag of money found in a "closet-type depression" next to a water heater in an apartment in which the four defendants were arrested. 473 F.2d at 1063. Although the bag of money was only four feet from one of the defendants, the court held that the area from which the bag was seized was not within the defendant's "immediate control," as defined in Chimel. Shye is easily distinguishable from the present case. In Shye, as in Mapp, supra, the only purpose of the search was to seize evidence. The search here was to protect the agents from possible harm. The latter type of search is expressly condoned by Chimel; the former is expressly forbidden without a search warrant.

b. The Search of Dinsio's Residence.

On June 27, 1972, a search warrant was issued for appellant Dinsio's residence in Boardman, Ohio. The supporting affidavit contained the following salient allegations:

1. Dinsio was connected with the burglary of the Bank. A June 2, 1972, search of an automobile, discussed infra, produced, among other items, a shotgun, walkie-talkies, drills, flashlights and batteries, gloves, hammers, and three gold coins identified as having been stolen during the burglary from a safety deposit box in the Bank. One of the hammers was identified as the tool used to force safety deposit boxes during the burglary. In addition, Dinsio's fingerprints were found on the flashlight batteries.

2. $98,600 was discovered buried in the ground across the street from Dinsio's residence.

3. According to a reliable informant, Dinsio's habit upon completing a burglary was to bury some of the loot.

4. A reliable informant was told by Dinsio that he had robbed an Ohio bank and had a large portion of stolen money in his possession.

5. The Boardman, Ohio, address was Dinsio's sole residence.

6. When Dinsio was arrested he had $537 on his person.

Appellants assert that the affidavit did not state probable cause for the search. The constitutional requirements for a valid search warrant were set forth in Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and further explicated in Spinelli v. United States, 1969, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637. Aguilar requires an affidavit that discloses the underlying circumstances from which the affiant has concluded that his information is reliable and that contains a statement of the underlying circumstances "to enable the magistrate independently to judge of the validity" of the affiant's conclusion that the things to be seized are where he says they are. United States v. Bailey, 9 Cir., 1972, 458 F.2d 408.

On appeal, the test applied by this court is that "the facts submitted to the Commissioner must be sufficient to justify a conclusion by him that the property which is the object of the search is probably on the person or premises to be searched at the time the warrant is issued." Durham v. United States, 9 Cir., 1968, 403 F.2d 190, 193. Moreover, if "in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 1965, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.

Here the magistrate had before him six important allegations concerning Dinsio. In reviewing the affidavit, we ignore the fourth allegation listed above. The fact that Dinsio told an informant that he had robbed an Ohio bank is irrelevant to a search warrant which on its face is specifically limited to evidence related to the robbery of a California bank. Nevertheless, the remaining five allegations did present sufficient probable cause. They linked Dinsio with the crime, and the allegation concerning the buried money linked him with evidence of the crime. The latter allegation meets the double test of Aguilar. Although there was no direct evidence that any evidence from the burglary was inside Dinsio's residence, there was sufficient evidence from which the magistrate could use his common sense to infer that the loot and tools, if not buried, were probably in the house. United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741. The fact that Dinsio was arrested with only $537 on his person and that the Boardman house was his sole residence increased this probability.²

Because "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,"³ we conclude that the affidavit contained a sufficient constitutional basis for a finding of probable cause.

c. The Search of a 1962 Oldsmobile.

On June 2, 1972, a search warrant was issued for a 1962 Oldsmobile automobile parked in the...