U.S. v. Butler

Citation904 F.2d 1482
Decision Date12 June 1990
Docket NumberNo. 89-5066,89-5066
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricky E. BUTLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Everett R. Bennett, Jr. of Frasier & Frasier, Tulsa, Okl., for defendant-appellant.

Tony M. Graham, U.S. Atty., and Susan W. Pennington, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and SAFFELS, District Judge. *

TACHA, Circuit Judge.

Ricky E. Butler appeals his conviction for possession of hashish, a misdemeanor in violation of 21 U.S.C. section 844. A jury sitting before a United States magistrate handed down the verdict, and Butler appealed to the United States District Court, which affirmed his conviction. Butler now argues that: (1) the magistrate erred in overruling his motion to suppress; (2) the magistrate erred by failing to grant a mistrial on the basis of prosecutorial misconduct; (3) the Government's failure to provide Jencks Act material, see 18 U.S.C. Sec. 3500, warrants reversal; and (4) the magistrate's supplemental instruction given after the jury had begun deliberations warrants reversal. We affirm.

I.

During a routine customs inspection of incoming mail at the Dallas/Fort Worth Airport on October 29, 1987, a drug detection dog "alerted" to a package from West Germany addressed to Ricky Butler in Hominy, Oklahoma. United States customs officials opened the package and found a wooden jewelry box containing a letter and several pieces of costume jewelry. The box had a false bottom, under which there were 45 grams of hashish wrapped in plastic.

Customs officials rewrapped the package, transported it to Oklahoma, and arranged to deliver the package to Butler under controlled conditions. After receiving a notice from the Hominy post office stating that the package could be picked up, Butler retrieved the package from the post office while under the surveillance of federal and state law enforcement officials. Hominy Police Chief Charles Crawford and Agent Grady Lowrey of the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD) followed Butler as he drove first to a hardware store, then to his mother's house, and finally to two more residences. At his mother's house, Butler entered the house with the package. There was some conflict in the testimony regarding how long Butler remained in the house, but the magistrate found that Butler remained in the house five to ten minutes before exiting with "something," which was in accord with Agent Lowrey's testimony. While in the hardware store and the other two residences, Butler left the package in his car. Agent Lowry arrested Butler when he reached the third residence. The authorities seized the jewelry box, which was on the front seat of Butler's pick-up truck. The jewelry box had been taken out of its mailing package. At the Hominy Police Department, the authorities searched the jewelry box and found that the the hashish was still under the false bottom of the jewelry box and that the jewelry and letter were missing.

During questioning, Butler admitted that while he was stationed with the United States Armed Forces in West Germany he discussed smuggling contraband into the United States following his discharge from the Armed Forces.

At trial, Butler admitted part of the prior discussion involving smuggling, but he denied that the conversation proceeded any further and he denied knowing that the jewelry box contained hashish.

II.

While Butler concedes that the search and seizure of the jewelry box at the Dallas/Fort Worth Airport was valid under the "border exception," see United States v. Ramsey, 431 U.S. 606, 616-22, 97 S.Ct. 1972, 1978-82, 52 L.Ed.2d 617 (1977), he argues that the fourth amendment, see U.S. Const. amend. IV, to the U.S. Constitution barred the second search and seizure of the jewelry box following his arrest. Butler contends that the magistrate erred by denying his pre-trial motion to suppress evidence from the second search. We disagree.

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 a conclusion of law, United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989), which we review de novo, In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988).

The fourth amendment bars "unreasonable searches and seizures." U.S. Const. amend. IV. As a general rule, a search and seizure becomes reasonable only if it is conducted pursuant to a valid search warrant. See New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981). There are, however, several exceptions to the warrant requirement. The government argues that the second seizure and search of the jewelry box was valid under two of these exceptions: searches incident to arrests, see id. at 457-63, 101 S.Ct. at 2862-65, and "controlled deliveries," see Illinois v. Andreas, 463 U.S. 765, 769-73, 103 S.Ct. 3319, 3323-25, 77 L.Ed.2d 1003 (1983).

We reject the government's contention that, pursuant to Belton, the subsequent search of the jewelry box at the Hominy Police Department was valid because the authorities were acting pursuant to Butler's arrest. Belton holds that "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." Belton, 453 U.S. at 460, 101 S.Ct. at 2864 (footnotes omitted). A lawful custodial arrest justifies not only the warrantless search of the person arrested but also the immediately surrounding area. It follows that if the police conduct a search that is not contemporaneous to arrest, a warrant will be necessary. Thus, the Belton Court reaffirmed United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), which held that the warrantless search of a footlocker conducted more than an hour after federal agents had taken it into their exclusive control, and long after the defendants were safely in custody, was not a search incident to arrest; therefore, a warrant was necessary for a valid search. See Belton, 453 U.S. at 457-62, 101 S.Ct. at 2862-65. See also Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (search incident to arrest invalid if it "is remote in time or place from the arrest").

We conclude, based on Chadwick, that the warrantless search of the jewelry box at the Hominy Police Department, conducted after Butler was safely in custody, was not a valid search incident to arrest. However, we find that the seizure of the jewelry box was incident to arrest and, therefore, proper under the fourth amendment.

We turn next to the government's argument that the second search was valid because, like the search in Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983), it followed a "controlled delivery." In Andreas, a customs inspector discovered marijuana concealed inside a three-foot-wide wooden table, which was shipped in a locked, metal container. After the table and container were resealed, a special agent of the Drug Enforcement Administration and a Chicago police inspector delivered the container to the addressee. At the suspect's request, the officers left the container in the hallway outside the suspect's apartment. The suspect then pulled the container into the apartment and the police inspector left to obtain a search warrant for the premises. Meanwhile, the special agent remained in the building but did not keep the apartment door under constant surveillance. Between 30 and 45 minutes after the delivery, and before the police inspector returned with a warrant, the suspect left his apartment carrying the container and the special agent arrested him. At the police station, the officers reopened the container without a warrant and found the marijuana. See Andreas, 463 U.S. at 767-69, 103 S.Ct. at 3322-23.

The Andreas Court noted that if an inspection by the police does not intrude upon a legitimate expectation of privacy, there is no "search" for purposes of the fourth amendment. The Court then concluded that there can be no protected privacy interest in contraband in a container once the police have lawfully opened it and identified its contents. Resealing the package and delivering it to the addressee under controlled conditions does not revive the extinguished privacy rights. See id. at 771, 103 S.Ct. at 3324.

The Court recognized that the police cannot always achieve perfectly controlled deliveries. Conducting a controlled delivery surveillance undetected is "likely to render it virtually impossible for police so perfectly to time their movements as to avoid detection and also be able to arrest the owner and reseize the container the instant he takes possession." Id. at 772, 103 S.Ct. at 3324. At some time during the surveillance, the police may lose sight of the container they are trailing. During this gap in observation, it is possible that the container will be put to other uses. For example, the suspect might remove the contraband or place other items inside the container. See id. However, the mere possibility that the contents of the container have changed is insufficient to create a protected privacy interest in the privacy of the container. See id.

The question for the reviewing court is whether "there is a substantial likelihood that the contents of the container have been changed during the gap in surveillance." Id. at 773, 103 S.Ct. at 3325. This is an objective standard that turns on "all the facts and circumstances, including the nature and uses of the container, the length of the break in surveillance, and the setting in which the events occur." Id. at 772, 103 S.Ct. at 3325. Based...

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