U.S. v. Baker

• Decision Date: 07 September 1988
• Docket Number: No. 87-3058,87-3058
• Citation: 850 F.2d 1365
• Parties: 26 Fed. R. Evid. Serv. 127 UNITED STATES of America, Plaintiff-Appellee, v. Norman Russell BAKER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

850 F.2d 1365

26 Fed. R. Evid. Serv. 127

UNITED STATES of America, Plaintiff-Appellee, v. Norman Russell BAKER, Jr., Defendant-Appellant.

No. 87-3058.

United States Court of Appeals,

Ninth Circuit.

Argued March 8, 1988.

Submitted May 2, 1988.

Decided July 5, 1988.

As Amended Sept. 7, 1988.

Mark D. Blackman, Ransom, Blackman & Simson, Portland, Or., for defendant-appellant.

Baron H. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff-appellant.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN, SKOPIL, and NELSON, Circuit Judges.

GOODWIN, Circuit Judge:

Norman Russell Baker, Jr. appeals his conviction and subsequent sentence to 15 years imprisonment as an armed career criminal under 18 U.S.C.App. Sec. 1202(a). ¹ We affirm.

On October 27, 1986, while on duty, Sgt. Klier of the Clackamas County Sheriff's Office observed a 1972 Chevrolet which lacked a hood, had a high-rise manifold, two four-barrel carburetors and an air scoop. Klier began following, and then stopped the vehicle. Klier's expressed basis for the stop was that the car's exhaust was "excessively and unreasonably loud."

Baker got out of the car. When asked for his license, Baker said he did not have it with him. When asked his name, Baker said something quickly which Klier did not understand. Klier saw something that looked like part of a knife sheath visible under Baker's coat. Klier reached in and grabbed it. It was a hunting knife. Klier then saw Baker remove his right hand from his jacket pocket and then quickly move his hand inside the jacket. Sgt. Klier saw what appeared to be a knife handle in Baker's hand. Klier grabbed it; it was a switchblade. Klier then arrested Baker and handcuffed him. A pat down search for more weapons revealed two loaded 16 round, .45 caliber magazines for an Uzi-type weapon in Baker's coat pocket.

Sgt. Klier requested registration information from headquarters, but the computer was down. Klier then entered Baker's vehicle to search for the vehicle's registration and to obtain the Vehicle Identification Number ("VIN"). He observed a syringe, another knife, a black tube which appeared to be a silencer, and the butt of a handgun.

He then secured the vehicle, had it towed, obtained a state court search warrant and conducted a thorough search that afternoon. During the search he found a loaded Uzi semi-automatic rifle, an unregistered silencer, a loaded 7.62 MM Mauser pistol and a .357 Ruger revolver.

Two days later a federal search warrant was obtained for the defendant's residence. The agents seized two additional rifles and several spent .45 caliber shell casings from the property surrounding the defendant's dwelling.

Baker was arrested on a federal charge of being an ex-convict in possession of firearms. The grand jury returned a two-count indictment charging the defendant with being an armed career criminal in violation of section 1202(a), and possession of an unregistered silencer in violation of 26 U.S.C. Sec. 5861(d) (1982). In Count 1 the indictment alleged that Baker had four prior felony convictions for burglary and robbery.

The court denied all of Baker's pretrial motions except his motion to bifurcate the trial. The jury was first required to decide whether Baker possessed the firearms as charged. If the jury found that he possessed the firearms, then evidence of the four prior felony convictions would be admitted. The bifurcation was an attempt to avoid the prejudicial effect which the prior convictions might have on the jury.

Baker's theory of defense was that he did not know that the firearms were in the car. The thrust of his argument was that after the firearms were purchased on July 5, 1986, he received information from his probation officer which prompted him to instruct his girlfriend to get rid of the rifle. Baker sought to prove that he thought his girlfriend had gotten rid of the weapons by October 27, 1986.

Baker testified on his own behalf. On cross-examination the prosecution elicited an admission that Baker was present on July 5 when his girlfriend purchased the Uzi, that Baker fired the weapon on that day in his back yard, and that Baker knew it was wrong to purchase or fire the weapon.

After jury deliberations had begun, the court discovered that the bailiff had erroneously given the indictment to the jury. The indictment recited the four alleged prior convictions, thus nullifying the attempt to avoid prejudicing Baker by bifurcating the trial. The court granted Baker's motion for mistrial and scheduled retrial for the next week.

Before the start of the new trial, however, the government obtained a superseding indictment which added a second Armed Career Criminal Act count (Count 2) for possession of the Uzi on July 5, 1986. The superseding indictment was based on Baker's trial testimony. The court denied Baker's motion to dismiss the superseding indictment. Thereafter, Baker waived trial by jury. The prosecutor introduced Baker's previous trial testimony, and Baker was convicted on Count 2.

The court then scheduled a separate hearing to determine the validity of the four prior convictions. The court determined that three of the four prior state convictions for burglary and robbery were valid and found that Baker was an armed career criminal.

On May 18, 1987, the court sentenced Baker to serve the minimum mandatory 15-year term of imprisonment required under the enhanced sentencing provisions of Sec. 1202(a).

I. Suppression Motion

Baker challenges the denial of his motion to suppress the evidence seized from his person and his vehicle, arguing that the officers had no probable cause to stop his vehicle. The trial court found that the initial stop of Baker's car was supported by probable cause under both state and federal law. We need not review the state law question. ² Moreover, the search of Baker's car following his arrest was lawful.

Baker argues that his arrest was pretextual. Baker points out that the police followed him for several minutes before stopping him. This, Baker argues, suggests that the police were hoping he would violate some traffic law, and when he did not speed or run a stop sign, they relied on the noise statute, the violation of which is humanly impossible to determine. ³ He claims that the police were suspicious of him because of his apparent caution.

In United States v. Fouche, 776 F.2d 1398 (9th Cir.1985), however, this court upheld a traffic stop near the scene of a bank robbery. Fouche argued that the traffic stop was a pretext to investigate the bank robbery. This court held that Fouche's argument implicated the credibility of the officer. The officer had been found credible by the trial court, and that decision could not be overturned unless clearly erroneous. Id. at 1402 & n. 3. Similarly, the trial court in this case must have credited Klier's testimony. That decision was not clearly erroneous. Moreover, Baker, unlike Fouche, offers no reason why the officers would be interested in stopping him aside from the traffic infraction. For the same reason, Baker's reliance on United States v. Causey, 818 F.2d 354 (5th Cir.1987), rev'd, 834 F.2d 1179 (5th Cir.1987) (en banc ), is misplaced.

Fouche also undermines Baker's argument that Sgt. Klier lacked founded suspicion to stop his car. As the court in Fouche recognized, traffic violations constitute criminal conduct which is sufficient to support a brief investigatory stop. Id. at 1403, citing Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979). Baker argues that Klier lacked an objective basis for believing that Baker had committed the traffic infraction for which he was stopped, because Klier lacked the ability to determine the car's decibel level. Nonetheless, Klier had the ability reasonably to suspect that the car violated noise ordinances, whether or not the car actually did so. The car's "souped-up" reconfiguration--the lack of a hood, the high rise manifold and the two four barrel carburetors--support this suspicion. Under federal law, the evidence of excessive noise is sufficient to create a well-founded suspicion to stop and investigate the car.

Baker further argues that even if the officer's stop of Baker's car was justified, Sgt. Klier was not authorized to enter Baker's car. This claim also lacks merit.

Sgt. Klier arrested Baker for failure to carry a valid license, and for carrying a concealed switchblade. The search of Baker's person incident to his arrest was lawful. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973).

The Supreme Court has also recognized that there is no reasonable expectation of privacy in a VIN. New York v. Class, 475 U.S. 106, 111-12, 106 S.Ct. 960, 964-65, 89 L.Ed.2d 81 (1986). Moreover, having found rounds of .45 caliber ammunition on the defendant's person, and two magazines for an Uzi rifle, the officer had probable cause to believe that firearms were in the vehicle. Probable cause allows officers to search an automobile. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Thus, the warrantless search of the vehicle was also lawful.

II. Superseding Indictment

Baker moved to dismiss the superseding indictment which added a charge for possession of the Uzi on July 5 based on Baker's testimony at the first trial. Baker argued that the superseding indictment violated both double jeopardy and the privilege against self-incrimination.

Baker contends that the government's theory at trial was that Baker exercised dominion and control over the Uzi from July 5, 1986 to October 27, 1986. The government's theory, Baker argues, consisted of trying to prove a course of conduct of possession, not a series of discrete acts. This theory, Baker asserts, precludes multiple prosecutions and punishments.

In United States v. Jones, 533 F.2d 1387 (6th Cir.1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059...