488 F.2d 732 (9th Cir. 1973), 73-1715, United States v. Mulligan

Docket Nº:73-1715, 73-1716, 73-1717.
Citation:488 F.2d 732
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Albert MULLIGAN et al., Defendants-Appellants.
Case Date:November 09, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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488 F.2d 732 (9th Cir. 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

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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.

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§ 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.

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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...

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