U.S. v. McCoy

Decision Date31 July 1992
Docket NumberNo. 91-2251,91-2251
Citation977 F.2d 706
PartiesUNITED STATES of America, Appellee, v. James W. McCOY, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C., Penacook, N.H., was on brief, for defendant, appellant.

Michael J. Connolly, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief, for appellee.

Before TORRUELLA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

After defendant James W. McCoy was indicted on four counts of violating 18 U.S.C. § 922(g)(1), which makes it unlawful

                for a convicted felon to possess a firearm, he filed three motions to dismiss the indictment and two motions to suppress evidence of the firearms.   The motions were denied and McCoy was tried and convicted on all counts.   He challenges only the district court orders denying the pretrial motions.   We affirm
                
I

BACKGROUND

Between July 21 and August 14, 1987, the town of Hampton Falls, New Hampshire was beset by a series of burglaries which seemed linked by several similarities. Each occurred during working hours on a weekday. In each instance, entry was gained by prying open a door, or if an attempted entrance through a door proved unsuccessful, by prying open a window. Typically, jewelry, cash, tools, and other small personal items were carried away in pillow cases and nylon bags.

A. Allen Burglary

On August 14, 1987, the Hampton Falls home of John Allen was burglarized. At approximately 1:30 p.m., George Allen, John Allen's brother and neighbor, spotted an unfamiliar black Dodge van parked near John Allen's home. He stopped to investigate, and noticed a white male walking away from the back of his brother's house. He asked the stranger what he was doing, and the man, who appeared nervous, replied, "just surveying." The man then shouted toward the tree line at the back of the property, as if to another person, words to the effect that he would finish the job later. The man then got into the van, and George Allen remarked to him that if he was simply surveying, he would not object to his license plate number being recorded. George Allen recorded the number, and the man drove away in the black van.

When John Allen returned home that evening, he discovered that his house had been forcibly entered through a rear cellar window and an unsuccessful attempt had been made to pry a rear door. Although it appeared that nothing had been taken from the house, a nylon bag packed with jewelry and other personal items was found in the master bedroom. Hampton Falls Deputy Police Chief Dean R. Glover was dispatched to investigate the burglary. George Allen told Glover that the man he had seen that afternoon was a white male with dark curly hair, between five feet ten inches and five feet eleven inches tall, and between one hundred and seventy and two hundred pounds. Allen initially estimated the man's age at between twenty-five and thirty years, but moments later revised his estimate to thirty-five years or older.

B. Arrest Warrant

Deputy Chief Glover ran a check on the license plate number provided by George Allen and discovered that the van was registered to appellant James W. McCoy at an address in neighboring Hampton, New Hampshire. Glover then ran a license check, which revealed that McCoy was forty years old, five feet eleven inches tall, two hundred pounds, with brown hair and eyes. Armed with this information, Glover prepared an affidavit and complaint for an arrest warrant charging McCoy with burglary. The supporting affidavit described the burglary of the John Allen residence and George Allen's encounter with "a white male individual, heavyset, approx. 5'10±", dark medium-length hair, blue shirt and dark pants." The affidavit included other descriptive information obtained through the motor vehicle registration and license check: "Hgt 5'11", wgt 200 lbs." The complaint and supporting affidavit were submitted to a Justice of the Peace, who issued the arrest warrant.

C. Subsequent Events

Deputy Chief Glover contacted the Hampton police and arranged to have two Hampton police officers, detectives Lalley and Wardle, accompany him to McCoy's residence in Hampton. Neither McCoy nor the van was at the address, but the landlord informed the officers that McCoy had loaded his personal belongings into the van early that afternoon and was not expected to return. The landlord mentioned that he During the following week, the landlord turned over some of McCoy's mail to Deputy Chief Glover, who noted that two envelopes bore the return address of the First National Bank of Portsmouth. Glover learned that McCoy still had an active account at the Hampton branch of the bank. Bank personnel informed the police that McCoy occasionally brought large quantities of coins to the bank. Glover requested that bank personnel notify either the Hampton Police Department or the Hampton Falls Police Department in the event McCoy made any further contact with the bank.

                had seen some items in McCoy's apartment that struck him as unusual possessions for a construction worker, among them an antique clock bearing a Latin inscription and the word "Florida" on its face.   Glover suspected that the clock the landlord described and a one-of-a-kind antique Belgian clock (bearing the inscription "Tempus Fugit" and the word "Florida") stolen in a July 24, 1987 burglary of another Hampton Falls residence, were one and the same.   Detectives Wardle and Lalley of the Hampton Police Department were present during the discussion of the clock.   The landlord permitted the officers to inspect McCoy's apartment;  two television sets were found, as well as several pieces of jewelry and a few coins
                

Bank personnel directed Glover to McCoy's employers, Earl and Dean Verity, who owned a construction company and were in the process of building a house very near the scene of another Hampton Falls burglary under investigation by Glover. Glover learned that McCoy had been employed by the company, but had left work suddenly around noon on the day of the Allen burglary, and never returned. The Veritys informed Glover that McCoy had given them some outdoor lawn tools, which Glover noted were similar to the tools stolen in yet another recent Hampton Falls burglary.

Within a week after the Allen burglary, Glover learned that McCoy had an extensive criminal record, including convictions for breaking and entering, receiving stolen property, and burglary, and that there was a warrant outstanding in another state for his arrest on burglary charges.

D. Arrest

At 8:55 a.m. on August 21, 1987, McCoy appeared at the drive-up window of the Hampton branch of the First National Bank of Portsmouth. He was recognized by the teller, who requested that he come into the bank to resolve a problem with his account. The Hampton Police Department was notified, and ten police officers were dispatched to the bank. 1 The Hampton police arrested McCoy as he emerged from the bank and headed toward the van. Among the Hampton police officers at the scene was Detective Wardle, who had accompanied Glover to the defendant's residence on the evening of the Allen burglary.

E. Impoundment and Search of Van

After McCoy was arrested, the van was towed to the Hampton Police Department for an inventory search, but then it was decided to await the issuance of a search warrant. 2

Glover filed a search warrant application with the Hampton District Court, supported by the affidavit submitted with the arrest warrant application, four Hampton Falls Police Department burglary reports, and a photograph of the antique Belgian On September 26, 1988, McCoy pled guilty in Rockingham County Superior Court to seven felony counts of receiving stolen property. During 1991, he was indicted, tried and convicted on four federal firearms charges under 18 U.S.C. § 922(g)(1). We turn to the claims presented on appeal.

                clock.   The warrant issued, but before beginning the search Glover looked in the windows at the contents of the van. 3  Glover and a Hampton police sergeant proceeded to search the van.   Sixty-one items were inventoried, including the four firearms which form the basis for the federal charges in the present case
                
II DISCUSSION
A. Motions to Suppress

1. "Automobile Exception"

Appellant claims that the evidence seized from the van should have been suppressed because the search warrant obtained by Deputy Chief Glover was not supported by probable cause. Assuming, without deciding, the search warrant was invalid, we nonetheless conclude that the district court properly denied the motions to suppress, as the search was permissible under the "automobile exception" to the Fourth Amendment warrant requirement.

Under the "automobile exception," the only essential predicate for a valid warrantless search of a motor vehicle by law enforcement officers is "probable cause to believe that the [vehicle] contains contraband or other evidence of criminal activity." United States v. Panitz, 907 F.2d 1267, 1271 (1st Cir.1990). See Carroll v. United States, 267 U.S. 132, 153-56, 45 S.Ct. 280, 285-86, 69 L.Ed. 543 (1925). "The inherent mobility of motor vehicles, California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068, 85 L.Ed.2d 406 (1985), and the reduced expectation of privacy associated with them, id. at 391, 105 S.Ct. at 2069, [ ] justify application of the vehicular exception '[e]ven in cases where an automobile [is] not immediately mobile.' " Panitz, 907 F.2d at 1271. We have held that probable cause alone justifies a warrantless search of a motor vehicle seized without a warrant while parked in a public place, "whether or not exigent circumstances prevailed at either the time of the seizure or the time of the search. Moreover, the search, so long as reasonable in scope, need not be conducted contemporaneously with the seizure...." Id. at 1272 (citing cases). Provided there was...

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