U.S. v. Holzman

• Decision Date: 07 April 1989
• Docket Number: 86-1000,Nos. 85-1365,s. 85-1365
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Alexander Robert HOLZMAN, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. James WALSH, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1496

871 F.2d 1496

UNITED STATES of America, Plaintiff/Appellee, v. Alexander Robert HOLZMAN, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. James WALSH, Defendant/Appellant.

Nos. 85-1365, 86-1000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1987.

Decided April 7, 1989.

Richard K. Perkins, Honolulu, Hawaii, Alan Silber, New York City, for defendant-appellant.

R. Michael Burke, Honolulu, Hawaii, for plaintiff-appellee.

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

Before POOLE, NORRIS and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

This is the consolidated appeal of Alexander Holzman and James Walsh who were convicted of passing, and conspiring to pass, forged United States Savings Bonds. Appellants contest the district court's denial of their joint motion to suppress evidence obtained during the search incident to their arrest, and the subsequent search of their hotel rooms.

I BACKGROUND

On the evening of December 19, 1983, Arizona Police Detective Hill was working off-duty as a security employee for a department store in Scottsdale, Arizona. He When it looked as if Holzman and Walsh were going to make a purchase, Hill moved closer to observe how they would pay for the merchandise. He allegedly saw Walsh produce an American Express card with a white abrasion mark on its face, a feature common to many stolen and altered cards with which Hill was familiar. After advising the clerk to keep the purchase slip, he followed the two men through the store.

saw two men, Holzman and Walsh, enter the store together and walk to a fragrance counter. Hill recognized one of the men, Walsh, as a suspect he had seen in bank video surveillance photographs relating to a credit card fraud scheme he had been investigating while on duty.

Hill noticed that the men spoke with eastern accents, and, he was aware that the fraud he was investigating involved New York accounts. The two men allegedly started acting in a suspicious manner, continually looking in his direction. Hill then made a call to the police department requesting backup for an arrest. When two uniformed officers and two detectives arrived, Hill announced the arrest of Walsh in a loud voice, and proceeded to inform him of his rights. Upon a search of Walsh, Hill found, among other things, a Camelback Inn room key # 136; a number of credit cards bearing different names; business cards of a jewelry dealer and an investment counselor; and a large amount of cash.

Detective Keeley, one of the detectives that had just arrived, made eye contact with Holzman, who looked away, turned, and began walking. Keeley attempted to cut him off, but Holzman reversed direction and then turned again toward an outside exit. Hill yelled for the detectives to stop Holzman, which they did. At that time, Holzman allegedly stated: "I'm not with that guy" (referring to Walsh).

When Hill began asking questions, he noted that Holzman appeared "extremely nervous." Holzman gave his name, but some of his other answers allegedly were evasive or incoherent. Hill asked Holzman for some identification, and Holzman produced a wallet. As Holzman searched through the wallet, Hill claimed that he could plainly observe a number of credit cards bearing different names. Holzman presented a New Jersey driver's license without a picture, of the paper variety which in Hill's experience were frequently and recently used by fraud suspects. Hill then placed him under arrest. Upon a search of Holzman, Hill found, among other things, a Camelback Inn room key # 135; a number of credit and identification cards bearing different names (one in the name of Joane Bauer); two driver's licenses bearing different names with the photo of Walsh; a driver's license with a photo of an unknown female in the name of Joane Bauer; a driver's license with a photo of an unknown male in the name of David Bauer; a large amount of cash; sheets of paper bearing the names "Dall", "Barb", and "Jimmy", as well as currency notations; and an address book.

Following the arrests, at approximately 9:30 p.m., Hill went to the police station, but returned to the department store shortly thereafter upon receiving a telephone call from a store employee. At the department store, Hill learned that store personnel had discovered a set of rental car keys and a credit card slip under merchandise on a counter where Holzman had been standing at the time of Walsh's arrest. The credit card slip revealed that a credit card in the name of "Steven Blatinstein" had been used earlier that day at a nearby restaurant. Hill recognized this name from one of the credit cards possessed by Walsh at the time of his arrest. Calling the restaurant, Hill learned that a party of four had dined at the restaurant earlier that evening.

At approximately 10:30 p.m., Hill again went to the police station. There, he placed a telephone call to the Camelback Inn in Paradise Valley, Arizona, in an effort to verify the source of the hotel keys found on the persons of Holzman and Walsh. He learned that rooms # 135 and # 136 were registered to the same name as had been used at the restaurant, "Steven Blatinstein."

Still later that evening, accompanied by Arizona Police Detective Arnold, Hill made another trip to the department store. Using the earlier discovered rental car keys, the officers secured the rental car and impounded it at the police station. The two then proceeded to the Cambelback Inn; it was approximately midnight.

Once at the hotel, Hill and Arnold attempted to look into the curtained windows. They noted a light in room # 135, but were unable to tell if the rooms were occupied. To dispel their uncertainty, the officers knocked, and then using the room keys seized earlier, entered the rooms; they had no warrant at that time. The officers did not find any other suspects in their rooms, and allegedly did not look for contraband.

Because of the layout of the rooms, the cold temperature that night, and limited manpower, Hill deemed it impossible to properly secure both rooms from the outside until a warrant could be obtained. Therefore, Arnold remained inside the adjoining rooms while Hill returned to the police station to obtain a warrant and continue the investigation. During the night, the telephones in both rooms rang several times. Arnold answered only the calls in room # 135, each time responding as though the caller had reached the wrong number. Fearing that he might be in danger, Arnold requested assistance in securing the rooms. Eventually, a second police officer arrived.

Before noon of the next day, Hill had drafted an affidavit and search warrant, and presented them to a judge of the Scottsdale County Court. The judge authorized a search, and the warrant was executed. The search uncovered numerous identification cards with various names, most bearing Walsh's photograph; numerous credit cards with various names; three thousand dollars in travelers checks; and a bag containing 665 savings bonds in the names of Joane and David Bauer (identification and credit cards with these names had been found on Holzman and Walsh at the time of their arrest).

Holzman and Walsh subsequently were indicted by a grand jury in the district of Hawaii on twelve counts of passing United States Savings Bonds containing forged endorsements in violation of 18 U.S.C. Sec. 510, and one count of conspiracy to commit the same in violation of 18 U.S.C. Sec. 371. They moved the district court to suppress the evidence obtained during the searches noted above, arguing the unreasonableness of the investigatory stop, arrest, and search incident to the arrest of Holzman; the warrantless entry and impoundment of the hotel rooms; and the warranted search of the hotel rooms. After a hearing, a magistrate recommended that the evidence not be suppressed. The district court adopted that recommendation and denied the motion. A jury trial ensued, Holzman and Walsh were each found guilty on all thirteen counts, and they were sentenced to what amounts to 25 and 10 years imprisonment respectively. On appeal, Holzman and Walsh renew the challenges they raised in support of their motion to suppress. ¹ We generally review de novo the denial of a motion to suppress. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986).

II DISCUSSION

A. Seizure and Search of Holzman

Initially, appellants contend that all evidence discovered during the search incident to Holzman's arrest should be suppressed. In support of this contention they allege three occasions of unconstitutional police

conduct. First, they argue that the original detention of Holzman was an invalid investigatory stop. Second, they argue that the formal arrest of Holzman was unsupported by probable cause. As a result, they argue that the search incident to Holzman's arrest was unjustified. Finally, they argue that even if the search incident to Holzman's arrest was justified, it was unreasonable for the police, without a warrant, to search the address book found on Holzman. We address each of these arguments in turn.

1. Investigatory Detention

As a general principle, the police must have probable cause to seize an individual, even if no formal arrest is made. Dunaway v. New York, 442 U.S. 200, 207-08, 99 S.Ct. 2248, 2253-54, 60 L.Ed.2d 824 (1979). However, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court "first recognized 'the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause.' " United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983) (quoting Michigan v. Summers, 452 U.S. 692, 698, 101 S.Ct. 2587, 2592, 69 L.Ed.2d 340 (1981)). Appellants claim that the initial encounter between the police and Holzman was more than a limited intrusion, but rather, it amounted to...