U.S. v. McKinnell
| Decision Date | 27 October 1989 |
| Docket Number | No. 88-1881,88-1881 |
| Citation | 888 F.2d 669 |
| Parties | 28 Fed. R. Evid. Serv. 1309 UNITED STATES of America, Plaintiff-Appellee, v. Mark A. McKINNELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David R. Gilman (James F. Vano, Overland Park, Kan., with him on the brief), Overland Park, Kan., for defendant-appellant.
Robert S. Streepy (Benjamin L. Burgess, Jr., U.S. Atty., D. Kansas, with him on the brief), Asst. U.S. Atty., D. Kansas, for plaintiff-appellee.
Before HOLLOWAY, SETH, and TACHA, Circuit Judges.
This is an appeal from a conviction for using a firearm during or in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1), and for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1). The defendant raises various constitutional, statutory, and evidentiary grounds for reversal. We hold that there were no constitutional violations that prejudiced the defendant, that the defendant waived any remedy that might have been available for the only statutory violation that occurred, and that the trial court acted within its discretion on the evidentiary issues. We affirm.
On July 5, 1987, Officer Patrick Hinkle of the Lenexa, Kansas, Police Department observed an automobile driving slowly through a residential neighborhood. Officer Hinkle radioed that vehicle's license plate number to the police dispatcher, who informed him that there was an active arrest warrant for the car's owner, Mark A. McKinnell.
After Officer Hinkle stopped and approached the vehicle, he noticed that in the passenger compartment there was a large opaque plastic bag and a device, consisting of a tube connected to a bowl, that he recognized as being associated with the smoking of marijuana. Officer Hinkle arrested McKinnell, handcuffed him, and conducted a pat-down search that yielded eight small bags containing cocaine. The officer then returned to McKinnell's vehicle and opened the white opaque plastic bag to find a quantity of cocaine and a roll of United States currency. Under the bag he found a loaded .41 magnum caliber revolver.
The Government indicted McKinnell on one count of using or carrying a firearm during or in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). The indictment specified the drug trafficking crime to be distribution of cocaine. A federal grand jury returned a two count superseding indictment which again charged the defendant with using or carrying a firearm during or in relation to a drug trafficking crime. This indictment, however, changed the drug trafficking crime to possession of cocaine with intent to distribute. Count two of the superseding indictment charged McKinnell with possession of approximately forty-eight grams of cocaine with intent to distribute.
On March 28, 1988, McKinnell was tried in federal district court, and a jury returned a verdict of guilty on both counts of the superseding indictment. The court denied the defendant's motion for a new trial and entered judgment against McKinnell. McKinnell appealed to this court.
On appeal, McKinnell first contends that the trial court erred in failing to suppress evidence allegedly obtained in violation of his fourth amendment rights. U.S. Const. amend. IV. When we review a denial of a motion to suppress, we accept the trial court's findings of fact unless clearly erroneous. United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law, see United States v. Basey, 816 F.2d 980, 988 (5th Cir.1987), that we review de novo. See In re Ruti-Sweetwater, Inc. (Heins v. Ruti-Sweetwater, Inc.), 836 F.2d 1263, 1266 (10th Cir.1988).
The fourth amendment to the United States Constitution protects against "unreasonable searches and seizures." U.S. Const. amend. IV. As a general rule, to be reasonable a search or seizure must be conducted pursuant to a validly issued warrant. See New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981); Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 744-45, 13 L.Ed.2d 684 (1965). Nevertheless, fourth amendment jurisprudence carves out several exceptions to the warrant requirement. See Ventresca, 380 U.S. at 106-07 & n. 2, 85 S.Ct. at 744-45 & n. 2. We conclude that the warrantless search of the defendant's car was valid under the exceptions governing searches incident to arrest and findings of probable cause.
McKinnell first argues that the exception to the warrant requirement relating to searches of automobiles incident to arrest does not apply here. Noting that "the scope of [a] search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible," Belton, 453 U.S. at 457, 101 S.Ct. at 2862 (quoting Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969)), McKinnell contends that the scope of the search of his automobile was not justified by his arrest on an outstanding municipal traffic warrant. We disagree.
In Belton, the Supreme Court made clear that the principles quoted in Chimel permit the police to search the passenger compartment of the automobile pursuant to a lawful custodial arrest of its occupant. Id. 453 U.S. at 460, 101 S.Ct. at 2864. The Court found that the entire passenger compartment constituted an area from which an arrestee might remove evidence or a weapon, id. at 460, 101 S.Ct. at 2864, and concluded:
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.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.
Belton, 453 U.S. at 460-61, 101 S.Ct. at
2864-65 (footnote and citations omitted). 1 The search remains a valid search incident to arrest even if it occurs after the suspect has been arrested, handcuffed, and placed outside of the vehicle. See United States v. Cotton, 751 F.2d 1146, 1149 (10th Cir.1985).
McKinnell was placed under lawful custodial arrest; therefore, the police were justified in searching the passenger compartment of his car and in seizing all the evidence obtained by means of that search. The police could also validly search the opaque bag found within the passenger compartment of his car.
McKinnell also attacks the inventory search of his car that occurred after impoundment. He argues that the police cannot justify the search as a proper inventory search. In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Supreme Court first declared the principles governing the inventory search exception to the fourth amendment's warrant requirement.
We need not decide whether the search of McKinnell's car after its impoundment was a valid inventory search because we hold that this later search was valid on other grounds. As a general rule, a search incident to arrest is invalid if it "is remote in time or place from the arrest." Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). However, if the police, while making an arrest, find probable cause to search the arrested individual's automobile, such a search then "proceeds on a theory wholly different from that justifying the search incident to an arrest." Chambers v. Maroney, 399 U.S. 42, 49, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419 (1970). Because it is the probable cause, not the arrest, that is then the justification for the search of the automobile, the police may search the impounded automobile at a later time. See id. at 52, 90 S.Ct. at 1981.
Here, the Lenexa police briefly searched the passenger compartment of McKinnell's vehicle incident to a lawful arrest. The police found both a firearm and controlled substances. These valid discoveries gave the police probable cause to conduct an additional, thorough search of the defendant's car. The police were justified in choosing to conduct this probable cause search at a later time in a protected and controlled environment. We hold that the trial court did not err in failing to suppress the evidence obtained in the searches of McKinnell's car.
McKinnell next contends that the trial court erred when it refused to dismiss count one of the superseding indictment--the count charging the defendant with using or carrying a firearm during or in relation to a drug trafficking crime--on the grounds of insufficient evidence. "Our standard for reviewing the sufficiency of evidence on criminal convictions is whether '[t]he evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.' " United States v. Brandon, 847 F.2d 625, 630 (10th Cir.) (quoting United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986)), cert. denied, --- U.S. ----, 109 S.Ct. 510, 102 L.Ed.2d 545 (1988). The evidence supporting a conviction must be substantial, raising more than a mere suspicion of guilt. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.1987).
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