U.S. v. Cotton

• Decision Date: 10 January 1985
• Docket Number: No. 83-1310,83-1310
• Citation: 751 F.2d 1146
• Parties: 17 Fed. R. Evid. Serv. 1508 UNITED STATES of America, Plaintiff-Appellee, v. Willie C. COTTON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1146

751 F.2d 1146

17 Fed. R. Evid. Serv. 1508

UNITED STATES of America, Plaintiff-Appellee, v. Willie C. COTTON, Jr., Defendant-Appellant.

No. 83-1310.

United States Court of Appeals Tenth Circuit.

Jan. 10, 1985.

Kenneth P. Snoke, Asst. U.S. Atty., Tulsa, Okl. (Layn R. Phillips, U.S. Atty. and Gerald Hilsher, Asst. U.S. Atty., Tulsa, Okl., with him on brief), for plaintiff-appellee.

Leonard M. Chesler, Denver, Colo., for defendant-appellant.

Before LOGAN and SETH, Circuit Judges, and FINESILVER, District Judge. ^*

SHERMAN G. FINESILVER, District Judge.

Willie C. Cotton, Jr. appeals from his jury trial conviction based on two counts of receipt and sale of a stolen motor vehicle in violation of 18 U.S.C. Sec. 2313. As grounds for reversal, Cotton argues that the district court erred in (1) denying Cotton's motion to suppress evidence seized from a car in a totally unrelated arrest; (2) overruling Cotton's objection to the admission of evidence of other crimes; (3) denying Cotton's motion for mistrial based on the prosecution's question to a witness which Cotton asserts was a comment on his right to remain silent; and (4) denying Cotton's motion for mistrial based on witness testimony which prejudicially linked the appellant's name and activities with the "National Auto Theft Bureau". We have thoroughly reviewed the entire record on appeal and the findings and conclusions of the court below. We have also considered the arguments and authorities presented to us by the parties. We affirm the convictions.

I. THE FACTS

The appellant's convictions resulted from charges that he received and disposed of a stolen 1979 Pontiac Grand Prix in June of 1981 (Count I) and of a stolen 1979 Toyota Celica in February of 1981 (Count III). The facts involved in these two counts are not presently involved in this appeal. Rather, the circumstances surrounding a totally unrelated arrest of the appellant in which evidence was seized must presently be considered because a portion of that evidence was admitted into evidence in the instant case. The appellant moved unsuccessfully to suppress that evidence at the trial below and now appeals the denial of that motion.

By stipulation, the facts of this unrelated arrest indicate that on December 2, 1981, a Mustang vehicle was stolen near Sallisaw, Oklahoma. Officer Riley Patton of Gore, Oklahoma, received a radio broadcast regarding the theft of the car plus a description of the Mustang and of a Camaro which was apparently traveling with it. The drivers of the two vehicles were also described in the broadcast. Officer Patton followed these cars into a parking lot where he stopped them and arrested the drivers. They were removed from the cars and handcuffed. No stipulation was reached as to which arrestee was driving which car. Another officer who arrived on the scene, Trooper Vernon Phillips of the Oklahoma Highway Patrol, seized a blue bank bag from the Camaro. The bag contained blank car titles, VIN plates and multiple sets of keys. Prior to searching the glove compartment or the trunk, Trooper Phillips obtained a search warrant.

II. SEIZURE OF BLUE BANK BAG FROM CAMARO

The appellant first argues that the seizure of the blue bank bag was illegal and that the trial court therefore erred in denying his motion to suppress.

As the issue of standing was not determined by the court below, we do not now consider it on appeal.

With respect to the legality of the seizure, the appellant argues that the facts of this case place it outside the scope of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The appellant also distinguishes this case from the more recent New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) in which a search incident to arrest involving automobiles was directly at issue. The appellant argues that since he was handcuffed at the time the blue bank bag was seized, the seizure does not fall with the rationale of the "search incident to lawful arrest" line of cases. The appellant asserts that, standing outside the Camaro, handcuffed, he would have been physically unable to reach into the car to dispose of the blue bag or to pull a weapon from it.

We are of the opinion that the law simply does not support the appellant's argument. The Supreme Court expresses quite clearly in Belton its goal to formulate a workable rule whereby an officer in the field may be able to evaluate the circumstances surrounding a lawful arrest to determine whether seizure of items in the immediate area of the arrestee is called for. 453 U.S. at 458-60, 101 S.Ct. at 2863-64. Pursuant to that goal, the Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460, 101 S.Ct. at 2864. This rule specifically includes the contents of any container, open or closed, found within the passenger compartment. Id. The rule as thus stated does not require the arresting officer to undergo a detailed analysis, at the time of arrest, of whether the arrestee, handcuffed or not, could reach into the car to seize some item within it, either as a weapon or to destroy evidence, or for some altogether different reason. The facts surrounding each arrest are unique and it is not by any means inconceivable under those various possibilities that an arrestee could gain control of some item within the automobile. The law simply does not require the arresting officer to mentally sift through all these possibilities during an arrest, before deciding whether he may lawfully search within the vehicle.

The evolution of the law regarding the warrantless searches of automobiles has of necessity followed a different path than that of searches incident to lawful arrest in general. The arrestee may have hidden, within the close proximity of the car interior, either weapons or contraband which are easily obtainable. He also has a significantly lessened privacy interest in the objects found within the car than he would in objects found within his home. United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977).

We therefore believe that a legal analysis of a seizure of an object found within an automobile pursuant to a search incident to a lawful arrest, must of necessity involve special considerations that set it apart from the general law regarding searches incident to lawful arrest. ¹ Each case involving a determination of whether a legal search of an automobile was effectuated must be decided on the individual facts of the search. Nonetheless, several basic principles common to all automobile search situations distinguish these cases from other search cases and dictate that a separate analysis be employed. The primary purpose of the exclusionary rule is to deter police misconduct resulting in violations of the fourth amendment. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). But in the context of a search of an automobile where, as stated earlier, there is a diminished expectation of privacy in items found within the exposed interior of the vehicle and where one faces as well the loss of evidence through the vehicle's ease of mobility, relaxation of the stringent application of the exclusionary rule is called for. The act of the officer in seizing the bank bag under the totality of circumstances presented here was therefore reasonable. ²

We also point out that in Belton, the Supreme Court specifically held that "the police may also examine the contents of any containers found within the passenger compartment..." 453 U.S. at 460, 101 S.Ct. at 2864. Therefore, the search and seizure of the contents of the bank bag was valid.

Our decision today is consistent with our past rulings. In United States v. Merritt, 695 F.2d 1263 (10th Cir.1982), a case involving an investigatory stop, not an arrest, as in this case, the three suspects were directed to get out of their vehicle. While two officers held shotguns on the suspects, the vehicle was searched and a revolver was discovered. We held, on an extension of the Terry search principle, ³ that the search was justified to protect the officers from harm due to weapons possibly hidden in the vehicle. One could make the argument that the shotguns trained on the suspects were comparable to handcuffs in terms of limiting the suspects' freedom of movement and therefore limiting their ability to grab weapons with which to harm the police officers or to destroy evidence. Nonetheless, we found the search of the vehicle to be an additional and lawful protective measure. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); United States v. Romero, 692 F.2d 699 (10th Cir.1982); see also United States v. Palumbo, 735 F.2d 1095 (8th Cir.1984) (search incident to lawful arrest valid even though arrestee was handcuffed and in the presence of several police officers). ⁴

In summary, we find that where an officer has made a lawful arrest of a suspect in an automobile, he may seize articles found within the interior of the automobile as part of a search incident to a lawful arrest, even where the arrestee is outside of the vehicle and handcuffed. This is due to the nature of automobile searches which involve a lessened expectation of privacy as well as an increased risk of loss due to the vehicle's mobility. The need for stable guidelines for officers to follow in their efforts to guard against the destruction of evidence as well as to protect their own safety dictate this result. Upon an examination of the facts of each case, the court need do no more than examine the reasonableness of the officer's actions under the totality of the circumstances and in view of the above-stated concerns.

III. ADMISSION OF EVIDENCE OF OTHER CRIMES

Next, the appellant argues that the trial court committed error in...