U.S. v. George, 87-5256

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation883 F.2d 1407
Docket NumberNo. 87-5256,87-5256
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry Donnell GEORGE, Defendant-Appellant.
Decision Date22 August 1989

Fred L. Wright, Torrance, Cal., for defendant-appellant.

Gary S. Lincenberg, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HALL, WIGGINS and THOMPSON, Circuit Judges.

WIGGINS, Circuit Judge:

Appellant Larry Donnell George appeals his convictions of three counts of armed bank robbery, in violation of 18 U.S.C. Sec. 2113(c)(d) (1982), and three corresponding counts of using and carrying a firearm during the course of a crime of violence, in violation of 18 U.S.C. Sec. 924(c) (1982). The jury found Appellant guilty based on physical evidence of his fingerprints at several of the banks and on a money bag found in his automobile; a large amount of cash, including bait bills, found in his automobile; a security guard's handgun found in his automobile; a .25 caliber handgun found in his apartment; $2,800 found in his apartment; and witnesses from each of the banks who identified Appellant from photospreads and in person as the perpetrator of the crimes.

Appellant offers three bases for reversing his convictions. First, Appellant claims that the district court erred when it denied his motion to suppress evidence seized from his apartment and automobile. Second, Appellant claims that the district court abused its discretion when is quashed a subpoena that Appellant had issued to the FBI. And third, Appellant claims that the district court abused its discretion when it deemed his case closed after he failed to present any further witnesses. We have appellate jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982) and, because we find the evidence overwhelming and the district court's conduct proper, we affirm.

I

Appellant's main contention on appeal is that the district court erred when it denied his motion to suppress evidence that had been seized from his apartment and automobile. The principal adverse witnesses at Appellant's suppression hearing were Officers Harry Kartinen and Robert Fowks of the Long Beach Police Department who each testified to the following sequence of events. On December 24, 1986, at approximately 1:00 p.m., Officer Kartinen participated in the investigation of an armed robbery that had just occurred at the Security Pacific National Bank in the City of Long Beach. While there he interviewed witnesses who described the assailant and explained to him that, before exiting, the assailant had told everyone to tell the police that the "Orange County Kid" had been there, and "Merry Christmas." About 1:30 p.m., while continuing the investigation, Officer Kartinen received a phone call from Federal Agent Kevin Adley, who Kartinen had known and worked with for nearly twenty years. Agent Adley explained that he had been investigating bank robberies in which Appellant was the leading suspect. After exchanging information Officer Kartinen and Agent Adley agreed that the robbery suspect matched Appellant's description and his modus operandi. Officer Kartinen then spoke with Officer Fowks, who had recently arrived at the bank, giving him a description of Appellant and the two vehicles that he was known to have been driving. Officer Fowks was then dispatched to Appellant's address to conduct surveillance.

Less than one hour later Officer Kartinen received a radio message that Agent Adley wanted to speak with him again. Officer Kartinen then contacted Agent Adley who explained that witnesses' descriptions of an assailant of a second bank robbery, which had just taken place at the Bank of America in Orange County, matched Appellant's description and, further, that the perpetrator had disarmed a uniformed security guard and shot him. Agent Adley also explained that Appellant was currently on probation for convictions of bank robberies that had taken place several years before and that Appellant's parole officer, after viewing surveillance photographs, identified him as the perpetrator of a bank robbery that had occurred earlier that month. Agent Adley noted as well that Appellant had a history of violent behavior during his bank robberies.

Officer Kartinen then joined forces with Officer Fowks to conduct surveillance of Appellant's apartment. Other officers also joined the stakeout, positioning themselves so that neither team viewed the same area. While waiting there Officer Kartinen once again received a radio message to contact Agent Adley. Officers Kartinen and Fowks then left the area to find a telephone. During his conversation with Agent Adley Officer Kartinen was told that witnesses at the Bank of America had positively identified Appellant as the robber. When Officers Kartinen and Fowks returned to Appellant's home at approximately 3:00 p.m., they noticed that his car had arrived out front, still warm from being recently driven, and that, although the screen door to his apartment remained closed, the front door was open. Officer Kartinen then directed the stakeout team to prepare to enter Appellant's apartment.

Without knocking or announcing their presence, Officers Kartinen and Fowks entered Appellant's apartment through the opened front door. When Officer Kartinen looked into the northwest bedroom he noticed a man, who he recognized as Appellant from photographs hanging on the wall, holding a black object in his hand. Officer Kartinen yelled "hold it," but when Appellant turned away Officer Kartinen fired his shotgun, hitting Appellant in the right arm and throwing him backward onto the bed. Fearing that Appellant was lying on a gun, Officer Kartinen asked Appellant several times where the gun was. Appellant finally pointed to the top drawer of a dresser next to the bed. Officers Kartinen and Fowks looked inside the drawer and noticed a .25 caliber pistol.

Appellant was then removed to a nearby hospital for treatment of the gunshot wound. Doctors working in the emergency room performed a brief neurological exam, determining that Appellant was oriented and aware of the situation, and that he was speaking and responding appropriately. Shortly after that, sometime around 4:00 p.m., Federal Agent James Leverick advised Appellant of his rights and then obtained Appellant's oral and written 1 consent to a search of his residence and automobile. Appellant's wife, who returned home sometime around 5:00 p.m., was met by Long Beach police officers and federal agents. They asked, and received, her consent to the search as well. According to Officers Fowks and Kartinen, the search of Appellant's apartment and automobile proceeded after that time. 2 Inside Appellant's automobile federal agents found the Bank of America security guard's handgun, five live .38 caliber rounds of ammunition, a box of .25 caliber bullets, and bait bills among $32,116, which was the exact amount of money stolen from the Bank of America. Inside Appellant's apartment Long Beach police officers found the .25 caliber handgun in Appellant's bedroom dresser and over $2,800 in currency.

The district court, after hearing this testimony, ruled against Appellant's motion to suppress evidence seized from his apartment and automobile. The district court reasoned that the initial warrantless and unannounced entry into Appellant's apartment to arrest him was justified by four exigencies, specifically, safety of the officers and public, hot pursuit of a suspect, prevention of the destruction of evidence, and prevention of escape. Moreover, the district court concluded that the subsequent warrantless search of Appellant's apartment was justified by both Appellant's and his wife's consent. Finally, the district court concluded that the warrantless search of the automobile was justified, in addition to Appellant's and his wife's consent, by probable cause that it contained contraband.

II

Appellant disputes the factual and legal basis of each of the district court's conclusions. Specifically, Appellant argues that neither he nor his wife effectively consented to the searches and, further, that the officers did not have probable cause to believe that his automobile contained contraband. We review the district court's findings of facts and determinations of credibility for clear error, but its ultimate legal conclusions of probable cause and exigent circumstances are reviewed de novo. United States v. Klein, 860 F.2d 1489, 1492 (9th Cir.1988) (legal conclusion of probable cause reviewed de novo); United States v. McConney, 728 F.2d 1195, 1204-05 (9th Cir.) (en banc) (legal conclusion of exigent circumstances reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988) ("voluntariness of consent is a question of fact," and therefore the district court's findings will not be upset absent "clear error"), cert. denied, --- U.S. ----, 109 S.Ct. 847, 102 L.Ed.2d 978 (1989).

A

We consider first Appellant's argument that his own consent to the search of his apartment and automobile was ineffective. Appellant readily admits that his signature appears on a consent to search form. Overwhelming evidence also indicates that his signature was obtained only after he was advised of his rights and told that without his consent a warrant would be needed. Appellant argues nonetheless that his consent was involuntarily given, asserting that when he signed the consent form he believed he was signing a waiver of blood transfusion. We cannot conclude on the evidence before us, however, that the district court clearly erred when it rejected this assertion of fact. The joint testimony of a hospital employee and the treating physician confirms that, despite his serious injury, Appellant was able to understand his rights and freely respond...

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