U.S. v. Bonitz, 85-2616

• Decision Date: 14 August 1987
• Docket Number: No. 85-2616,85-2616
• Citation: 826 F.2d 954
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Gene BONITZ, a/k/a Gerald Wayne Guinn, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 954

826 F.2d 954

UNITED STATES of America, Plaintiff-Appellee, v. Larry Gene BONITZ, a/k/a Gerald Wayne Guinn, Defendant-Appellant.

No. 85-2616.

United States Court of Appeals,

Tenth Circuit.

Aug. 14, 1987.

Irven R. Box (Diane Clowdus, with him, on brief), Box & Clowdus, Oklahoma City, Okl., for defendant-appellant.

Robert Mydans, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., and Mark D. McBride, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before McKAY, SETH and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

This case began when Bureau of Alcohol, Tobacco and Firearms agents, assisted by Oklahoma City Police Department officers, went to the home of defendant's parents to arrest him pursuant to an arrest warrant. The warrant was issued on a claim that defendant had violated 18 U.S.C. Sec. 922(a)(6) (1982) by giving false information in connection with acquiring a firearm. The false information claim was based on a belief that defendant had failed to acknowledge a felony conviction on the applicable BATF forms. The validity of the warrant is not in question in this case.

After entering the home, the arresting agent and at least three other officers found defendant in the doorway of his bedroom in the presence of his parents. Within one or two minutes from the time the law enforcement officials entered the home, defendant was handcuffed with his hands behind him and was in custody.

For approximately the next two-and-one-half hours, a search and seizure was conducted within the ten-foot-by-ten-foot confines of defendant's bedroom. Defendant's possessions were systematically searched, seized and inventoried without a warrant and without consent of defendant or his parents. Three of the seized items--a Colt AR-15 rifle, an M-16 bolt carrier assembly, and two drop-in sear kits--were the subject matter of a motion to suppress. Defendant now appeals the denial of this motion. These items were used as the basis for the underlying conviction for possessing a combination of parts for use in converting a firearm into an unregistered machine gun in violation of 26 U.S.C. Sec. 5861(d) (1982).

The Colt AR-15 rifle was located in a closed, hard plastic case underneath a workbench in defendant's bedroom, along with other, soft-sided, gun cases. Record, vol. 2, at 31, 36. Officers testified that they observed this hard case not far from the defendant at or about the time he was arrested and handcuffed, but did not seize it until after defendant was handcuffed. Record, vol. 2, at 32. After officers opened this case, they observed that a rifle was inside.

Officers testified that they could recognize this case as a gun case. However, the trial court described the case in this way: "I wouldn't recognize it as a gun case, from what I know of gun cases.... This may be just as suspicious from people that are around guns more than I, but it could equally be suspected of carrying a violin or something like that." Record, vol. 2, at 64. Thus, this particular case did not, in and of itself, disclose a rifle lying inside and, from its outward appearance, might have contained camera equipment or technical instruments instead.

The M-16 bolt carrier assembly was located on top of an envelope on top of the workbench. Testimony indicates that the bolt carrier assembly was observed in plain view at or about the time of the arrest and handcuffing of defendant but that it was not actually seized until sometime later. Record, vol. 2, at 34, 51-52.

The two sear kits were found inside plastic envelopes located in a small file box on top of the workbench. These items, necessary to convert the AR-15 rifle and the bolt assembly into a fully automatic weapon, were not discovered until after the room had been secured and the defendant had been removed from the vicinity. The officer testified, "We could have kept the room secured, yes, Your Honor." Record, vol. 2, at 43-44. Nevertheless, an exhaustive search was conducted without waiting for the issuance of a search warrant. All bedroom items, including envelopes and the pages of books, were examined. Nothing indicates that the sear kits could have been seen or recognized without this search.

The Government uses alternate bases to justify its warrantless search and seizure of the three disputed items. First, it claims that the AR-15 rifle was properly seized incident to defendant's arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685 (1969). However, the case containing the AR-15 rifle was searched after defendant was handcuffed and in custody and, thus, this search was not conducted in order to disarm defendant or to protect the safety of the officers. See id. at 763, 89 S.Ct. at 2040. Additionally, no serious claim has been made that destruction of evidence was feared.

Second, the Government advances the well-recognized plain-view doctrine to support the seizure of both the AR-15 rifle and the M-16 bolt carrier assembly. The case containing the AR-15 rifle was in plain view, and the record supports the trial court's conclusion that the case gave probable cause to suspect its contents. Even so, it is not clear that the officers could open the case to examine its contents without a search warrant. A footnote in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), suggests that some containers such as gun cases may, by their very nature, support an inference as to their content from their outward appearance. Id. at 764-65 n. 13, 99 S.Ct. at 2593 n. 13. However, a gun case was not at issue in Sanders, and a specific ruling on whether a gun case places its contents into plain view has not occurred. Given the characteristics of this particular case, the issue is even more ambiguous. This hard plastic case did not reveal its contents to the trial court even though it could perhaps have been identified as a gun case by a firearms expert. Thus, in contrast to the well-known soft, zippered gun cases, the applicability of the Sanders dicta on gun cases remains very doubtful. See United States v. Rigales, 630 F.2d 364, 367-68 (5th Cir.1980) (no indication that bulge inside zippered brief case resembled a pistol and, thus, facts not within purview of Sanders footnote); United States v. Dart, 747 F.2d 263, 269 (4th Cir.1984) (weapons underneath an opaque blanket not in plain view); United States v. Moschetta, 646 F.2d 955, 958-59 (5th Cir. Unit B June 1981) (Sanders does not imply an " 'unworthy container' exception" and, thus, search of "any closed opaque container whose exterior or shape does not disclose its probable contents" requires a warrant).

It is fundamental that, absent some special exception, all containers and packages will receive the full protection of the fourth amendment during a police search. Sanders, 442 U.S. at 762-65, 99 S.Ct. at 2592-93. The trial court itself observed that a great many things could have been contained in the case at issue here. While the officers' knowledge of gun cases may well have formed the basis for the issuance of a warrant by a detached magistrate, only the soft-sided gun cases could self-reveal the presence of a weapon inside. Therefore, the record here does not support the conclusion that the AR-15 rifle was in plain view, and it should have been suppressed.

The evidence does support the claim that the M-16 bolt carrier assembly was in plain view at the time the officers lawfully arrested defendant. Although it is somewhat problematic whether the requirement that its incriminating nature be "immediately apparent" was satisfied, Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), the bolt carrier assembly arguably formed a link in the chain of possession of a weapon by a felon, and could thus be seized.

However, even if the bolt assembly and the AR-15 rifle could be seized under the plain view doctrine, it is clear beyond doubt that the record does not support a finding that the sear kits located in plastic envelopes, inside a file box, were in plain view. Thus, absent some other exception, discovery and seizure of the sear kits without a search warrant was unlawful and those items must be suppressed. Arizona v. Hicks, --- U.S. ----, 107 S.Ct. 1149, 1152-53, 94 L.Ed.2d 347 (1987) (moving and inspecting items in apartment separate from search giving lawful entry constitutes additional invasion of privacy).

The Government attempts to justify the search resulting in seizure of the sear kits on the basis of exigent or emergency circumstances. After defendant's arrest, a can of black powder with other ammunition reloading materials, and a hand grenade which later proved to be a dead paperweight, were seen on top of the workbench. Further examination revealed up to twenty-two cans of black powder in the room. At that stage, the officers ceased all other activity and called a bomb technician. The Government claims that the subsequent prolonged and precise search was justified by their fear that the explosives threatened the neighborhood, including residences and a restaurant two doors away. Record, vol. 2, at 46-47, 61-62.

Even though the trial court accepted the exigent circumstances justification, the record simply does not support such a conclusion. The witness who identified the black powder testified that it was of the type legally and routinely seen in bullet reloading shops in quantities "up to maybe ten" cans. Record, vol. 2, at 59. Standing undisturbed, cans of gun powder are inert, whether in a gun reloading shop or in a home. Similarly, the hand grenade paperweight was not illegal and, even when live, a grenade is not dangerous unless disturbed. Thus, the only immediate danger that existed was created by the officers themselves when they entered the secure area and began to handle these materials. See United States v. Hultgren, 713 F.2d 79, 86 (5th Cir.1983) (warrantless search not justified when exigent...