751 F.2d 1146 (10th Cir. 1985), 83-1310, United States v. Cotton

Docket Nº:83-1310.
Citation:751 F.2d 1146
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie C. COTTON, Jr., Defendant-Appellant.
Case Date:January 10, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1146

751 F.2d 1146 (10th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Willie C. COTTON, Jr., Defendant-Appellant.

No. 83-1310.

United States Court of Appeals, Tenth Circuit

January 10, 1985

Page 1147

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

Page 1148

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....

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