U.S. v. Bennett, s. 89-2434

• Decision Date: 24 July 1990
• Docket Number: Nos. 89-2434,89-2435,s. 89-2434
• Citation: 908 F.2d 189
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald BENNETT and Steven R. Keith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 189

908 F.2d 189

UNITED STATES of America, Plaintiff-Appellee, v. Donald BENNETT and Steven R. Keith, Defendants-Appellants.

Nos. 89-2434, 89-2435.

United States Court of Appeals, Seventh Circuit.

Argued May 16, 1990.

Decided July 24, 1990.

Alexander Vesselinovitch, Asst. U.S. Atty., Barry R. Elden, and Matthew M. Schneider, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, for plaintiff-appellee.

William J. Stevens and John A. Meyer, Chicago, Ill., for defendants-appellants.

Before WOOD, Jr. and FLAUM, Circuit Judges, CRABB, Chief District Judge. ^*

FLAUM, Circuit Judge.

Defendants Donald Bennett and Steven R. Keith were convicted of various offenses relating to the armed robbery of five Chicago-area financial institutions which occurred during October and November of 1987. They challenge their convictions on numerous constitutional and statutory grounds. We affirm the convictions.

I.

In November 1987, detectives of the Chicago Police Department were investigating a series of five bank robberies that had occurred on the south side of Chicago and in Oak Lawn, Illinois. The police knew that several of the robberies had been committed by two assailants driving a dark blue four door Cadillac with a blue vinyl top. Bank surveillance photographs and eyewitness reports revealed that one of the suspects spoke with a southern accent and wore a light colored red wig during the robberies.

On the morning of November 10, 1987, Detective Cummings observed a dark blue four door Cadillac with a blue vinyl roof in the parking lot of the Carlton Midway Motel in Chicago. A computer check of the license plates revealed that the car's plates were registered to a 1976 Ford belonging to defendant Donald Bennett of 7257 South Western Avenue in Chicago. Detective Cummings called for backup and was soon joined by Lieutenant Cline and Sergeant McKenna. The officers proceeded to the motel's office and checked with the desk clerk who confirmed that the Cadillac belonged to Donald Bennett, who was staying in room 120.

The officers proceeded to room 120 and Lieutenant Cline knocked on the door. A voice with a southern accent from inside the room asked who was at the door, and Lieutenant Cline replied, "I'm a police officer. I want to talk to you about your car." Donald Bennett opened the door and stepped out into the hallway. Detective Cummings immediately recognized him from bank surveillance photographs as one of the bank robbers and placed him under arrest. When the officers asked him whether anyone else was in the room, he replied that there was another man inside on the bed.

At that point, the officers entered the motel room. Once inside, Detective Cummings observed a large revolver in an open grey suitcase near the front door and defendant Steven Keith in the nearby bed. He recognized Keith as one of the bank robbers from bank surveillance photographs and placed him under arrest. Keith told the officers that the grey suitcase containing the revolver belonged to him. Detective Cummings searched the bag and found ammunition and a bill of sale for the purchase of a 1977 Ford LTD. The officers also found a loaded .357 Magnum and a loaded 12 gauge sawed-off shotgun in a black suitcase on top of the bed, a loaded .38 caliber snub-nose revolver under the mattress of one of the beds, and a light colored reddish-brown wig in a blue nylon bag.

The defendants were indicted in a 13 count indictment charging them each with one count of conspiring to take money by force from federally insured banks and savings and loans in violation of 18 U.S.C. Sec. 371. Bennett was charged with five counts of armed robbery in violation of 18 U.S.C. Sec. 2113(a) and five counts of using a firearm during the commission of a crime of violence in violation of 18 U.S.C. Sec. 924(c). Keith was charged with four counts of violating both Sec. 2113(a) and Sec. 924(c).

At trial, Bennett admitted committing all five bank robberies but relied on a defense of insanity, offering evidence that he was psychotic and suffering from schizophrenia at the time of the robberies. He testified that God's voice and his mother's voice told him to get the money from the banks, and that his co-assailant was Frank Collins of Louisville, Kentucky, and not Keith. Keith, who did not testify at trial, relied on an alibi defense.

The jury found both Bennett and Keith guilty on all counts. Bennett was sentenced to 50 years in prison including five years on the first Sec. 924(c) conviction and ten years for each of four "second or subsequent" convictions. Keith was sentenced to 38 years and 4 months in prison, including five years on the first Sec. 924(c) conviction and ten years each for the remaining three Sec. 924(c) convictions. The defendants raise several challenges to their convictions. We address each in turn.

II.

Bennett and Keith challenge their convictions claiming that the district court erred in denying their motions to suppress the evidence found in the motel room at the time of their arrest. They argue that the officers' warrantless entry into the motel room and subsequent search of their luggage was unreasonable and violated their fourth amendment rights. In denying the motions to suppress, the trial court found that the warrantless entry into the motel room was proper in light of the exigent circumstances confronting the officers and that the officers properly seized evidence in the motel room under the plain view and search incident to arrest exceptions to the warrant requirement.

Our standard of review of a denial of a motion to suppress is well settled. We must affirm the district court's denial of the motion to suppress unless we find that the decision was clearly erroneous. United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990). Our inquiry is fact-based and requires that we give particular deference to the district court who had the opportunity to hear the testimony and observe the demeanor of the witnesses. United States v. D'Antoni, 856 F.2d 975, 978 (7th Cir.1988).

The fourth amendment protects individuals from unreasonable searches and seizures. A warrantless search or seizure is "per se unreasonable unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent circumstances.' " Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1981). In United States v. Napue, we held that arresting officers may make a warrantless entry into a premises under the exigent circumstances exception to the warrant requirement when, following an arrest outside the premises, the arresting officers have (1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons are aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public. 834 F.2d 1311, 1327 (7th Cir.1987). See also United States v. Agapito, 620 F.2d 324, 336 (2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980).

Applying this two-part test, we find that the officers' entry into the motel room was permissible. A review of the record reveals that Lieutenant Cline announced his office after he knocked on the door of the motel room. After Bennett stepped out of the room and was arrested, he told the officers that a third person was present in the room. Moreover, the officers were aware that at least two suspects were involved in each of the robberies. Under these circumstances, it was reasonable for the officers to believe that a third person was in the room and that he knew of their presence. The officers also had a reasonable belief that the third person was dangerous; they knew that the bank robbers had an extensive collection of weapons that they used and brandished during the commission of the offenses and that they were considered to be extremely dangerous.

A more difficult issue is the officers' search of the defendants' luggage after their arrest. The district court found that under the specific facts presented, the officers were justified in searching the luggage under the search incident to arrest exception to the warrant requirement. The defendants claim that the search exceeded the scope of a permissible search incident to arrest because they were handcuffed and placed against the wall of the room at the time of the search.

In Chimel v. California, the Supreme Court held that police officers, subsequent to a lawful arrest, may search the person of the arrestee and any area in his immediate control without a search warrant to protect them from danger and prevent the destruction of evidence. 395 U.S. 752, 768, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685 (1969). The search must be contemporaneous with the arrest, conducted to prevent use of a weapon or the destruction of evidence and limited to the area immediately within the arrestees' immediate control. As an exception to the warrant requirement, "the scope of such a search has been narrowly drawn and carefully delineated to accommodate only those interests it was created to serve." United States v. Queen, 847 F.2d 346, 352 (7th Cir.1988) (quoting United States v. Graham, 638 F.2d 1111, 1114 (7th Cir.), cert. denied, 450 U.S. 1034, 101 S.Ct. 1748, 68 L.Ed.2d 231 (1981)).

The defendants do not seriously dispute the district court's finding that the officers conducted the search contemporaneously with the arrests, and that they were searching for weapons or other dangerous instrumentalities. The primary issue raised by the defendants is whether the search was limited to the area within their immediate control. We find that although the defendants were handcuffed and placed against the wall of the room at the time of the search, the facts of this case are such that the district court's finding that the search was limited to the area within their immediate control is not...