U.S. v. Potter

• Citation: 895 F.2d 1231
• Decision Date: 07 February 1990
• Docket Number: No. 88-1497,88-1497
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Lawrence POTTER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1231

895 F.2d 1231

UNITED STATES of America, Plaintiff-Appellee, v. William Lawrence POTTER, Defendant-Appellant.

No. 88-1497.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 16, 1989.

Decided Feb. 7, 1990.

Charles M. Bonneau, Sacramento, Cal., for defendant-appellant.

David F. Levi, U.S. Atty., Dale E. Kitching, Sp. Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before GOODWIN, PREGERSON and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Defendant William L. Potter was convicted under 18 U.S.C. Sec. 922(g)(1) for possession of a firearm by a felon. His sentence was enhanced pursuant to 18 U.S.C. Sec. 924(e)(1), which mandates a fifteen-year minimum prison term for persons convicted under section 922(g)(1) who have been convicted of three prior "violent felonies." Potter appeals on two grounds. First, he appeals the district court's denial of his motion to suppress the gun found in his possession, alleging that it was found pursuant to an illegal search. Second, Potter asserts that his sentence was improperly enhanced under Section 924(e)(1) because he did not have three predicate violent felonies. We reject both of Potter's contentions and affirm his conviction and sentence.

I. FACTS

On April 4, 1988, Officer Paul Schabert of the City of Sacramento Police Department received a radio call regarding drug sales activity in front of an apartment complex at 3110 W Street in Sacramento. Officer Schabert arrived at the apartment complex within two minutes of the call. He parked his patrol car nearby in an alley and approached quietly in order to observe any activity in front of the complex without being seen.

Officer Schabert saw a male, later identified as appellant Potter, and a female sitting on a stoop in front of apartment No. 1. When his backup, Officer Wendy Henning, pulled up in front of the apartment complex in her police car, Officer Schabert saw Potter get off the stoop and peer in the direction of Officer Henning's car. Potter then abruptly walked back in the other direction toward a bush, removed some items from his waistband or pocket and placed them in the bush. Potter returned to the woman with whom he had been sitting as Officer Henning approached them. Officer Schabert went to the bush and found a bag of white powder and three hypodermic syringes. Believing that the white powder was methamphetamine and that the syringes were possessed illegally, Officer Schabert decided to arrest Potter.

Before making the arrest, Officer Schabert conducted a cursory pat-down search. Potter drew back, but Officer Schabert felt what he believed to be a concealed weapon. Officer Schabert then pulled Potter back toward him and threatened to draw his own weapon; Potter thereafter cooperated in the search and Schabert removed a loaded .32 caliber handgun from a shoulder holster under Potter's sweater. Officer Schabert arrested Potter, and retrieved the bag of white powder and the syringes from the bush, along with a burnt spoon. The powder proved to be methamphetamine.

Potter filed a motion to suppress the gun in the district court arguing first that Officer Schabert did not have reasonable suspicion to believe that he had committed a crime or that he was armed and dangerous, and second that the pat-down was not a valid search incident to an arrest. The district court denied the motion following an evidentiary hearing, and Potter entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. The district court, relying on a presentence investigation report that listed four prior felonies, sentenced Potter to a seventeen-year term of imprisonment pursuant to the enhancement provisions of 18 U.S.C. Sec. 924(e)(1).

II. SUPPRESSION OF THE GUN

In denying Potter's motion to suppress the gun, the district court held that Officer Schabert's observations of Potter's conduct and the items of contraband he found constituted probable cause for Potter's arrest for possession of narcotics and narcotics paraphernalia; that the discovery and seizure of the gun was incident to Potter's arrest; and, in the alternative, that Officer Schabert discovered the gun in a lawful "frisk" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because we agree with the district court that there was probable cause to arrest Potter and that the gun was found in a valid search incident to his arrest, we need not reach the question whether Officer Schabert had reasonable suspicion to frisk him under Terry v. Ohio.

The district court concluded that Officer Schabert had probable cause to arrest Potter at the time he conducted his cursory pat-down of the appellant. A determination of probable cause is a mixed question of law and fact which this court reviews de novo. United States v. Merriweather, 777 F.2d 503, 505 (9th Cir.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1497, 89 L.Ed.2d 898 (1986). A district court's findings as to the underlying facts, however, are reviewed only for clear error. Id. Probable cause is a practical, nontechnical concept. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). Probable cause exists when, "under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Smith, 790 F.2d 789, 792 (9th Cir.1986); see also United States v. Morgan, 799 F.2d 467, 469 (9th Cir.1986). Probable cause to arrest must exist before an officer undertakes a search incident to arrest; therefore, any items discovered during the search cannot support a determination of probable cause. Id.

Officer Schabert had probable cause to arrest Potter before discovering the concealed weapon. Officer Schabert's testimony at the evidentiary hearing, which the district court specifically found to be credible, established that Officer Schabert had received a radio dispatch reporting drug activity at a certain address. He arrived at the address within two minutes of the call and watched Potter respond to the appearance of a police car by leaving his seat, peering in the direction of the car, and walking abruptly in the other direction, toward a bush. He then watched Potter bend down and two separate times remove objects from his waistband or pocket and place them in the bush. When Officer Schabert went to the bush, he found a bag of white powder and three hypodermic syringes.

California law makes it illegal to possess hypodermic syringes in all but a few rare instances. Cal.Bus. and Prof.Code Sec. 4149. Officer Schabert, an eleven-year veteran of the police force, was aware of this fact. In addition, he had made numerous arrests involving narcotics and knew that drugs such as powdered cocaine and methamphetamine were frequently packaged in plastic bags. He believed that the white powder in the bag was methamphetamine. Given his observations of Potter's conduct, his discovery of the syringes and the plastic bag, and his failure to see any other items in the bush, Officer Schabert reasonably inferred that it was Potter who had attempted to conceal the narcotics. We hold, as did the district court, that Officer Schabert's observations, together with the contraband found in the bush, provided probable cause to arrest Potter on narcotics charges. ¹

Once Officer Schabert had probable cause to arrest Potter, he was entitled to search him before formally making the arrest. A search incident to an arrest is valid whether it occurs immediately before or after the arrest. In Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980), the Supreme Court upheld a search that preceded a formal arrest as incident to that arrest, stating:

[T]he police clearly had probable cause to place petitioner under arrest. Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.

See also, United States v. Salazar, 805 F.2d 1394, 1399 (9th Cir.1986) ("If the police had probable cause to place Salazar under arrest and the fruits of the search of the bag were not necessary to support that probable cause, the Supreme Court's holding in Rawlings v. Kentucky controls.") (citation omitted); Morgan, 799 F.2d at 469. Because Officer Schabert had probable cause to arrest Potter, his pat-down of the appellant before placing him under arrest was a valid search incident to Potter's arrest. The district court's denial of Potter's motion to suppress the gun found during that pat-down search was therefore proper. ²

III. ENHANCEMENT UNDER Sec. 924(e)

Following Potter's conditional guilty plea to possession of a gun by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1), the district court sentenced him to a seventeen-year term of imprisonment pursuant to 18 U.S.C. Sec. 924(e)(1). Section 924(e)(1) requires that all those convicted under Sec. 922(g)(1) who have three prior convictions for "violent felonies" receive a mandatory minimum sentence of fifteen years. In determining the appropriate sentence, the district court relied on a presentence investigation report which listed, among other things, four prior felonies: two robberies in 1976, a burglary in 1981 and a rape by force in 1981. At the sentencing, defense counsel conceded the applicability of Sec. 924(e)(1) but argued that Potter should receive only the mandatory minimum of fifteen years, not the seventeen-year term recommended by the probation officer, because Potter had committed only three violent offenses. Counsel argued that the two robbery convictions in 1976 were part of a single common scheme or plan. She raised no objections to the use of the burglary or rape...