U.S. v. Gerber, 92-2182

Citation994 F.2d 1556
Decision Date12 July 1993
Docket NumberNo. 92-2182,92-2182
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Jeffrey Todd GERBER, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Teri Donaldson, Karla Spaulding, Tamra Phipps and Edmund Searby, Asst. U.S. Attys., Tampa, FL, for plaintiff-appellant.

Deborah Jordan and S. Craig Alldredge, Asst. Federal Public Defenders, Tampa, FL, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and CLARK, Senior Circuit Judge.

BIRCH, Circuit Judge:

In this interlocutory appeal, we address the constitutionality of a search, which was not executed completely before expiration of the authorizing warrant. The district court suppressed evidence obtained both from the initial search and the continuation of that search. Following our review of the record in this case, we REVERSE and REMAND.

I. BACKGROUND

On August 27, 1991, a white male using a nine millimeter Glock pistol robbed the Glendale Federal Bank in Tampa, Florida. The robber wore a homemade black ski mask and clear plastic gloves. He jumped over the teller counter and took the contents of several cash drawers, amounting to approximately $3,010. The robber placed the money in a canvas coin bag. Two dye packs therein exploded shortly after the robber left the bank. A witness observed the robber driving from the bank and provided a description of his 1975 Dodge automobile.

In September, 1991, the roommate of defendant-appellee Jeffrey Todd Gerber telephoned the Federal Bureau of Investigation (FBI). The roommate stated that Gerber had admitted to him that he committed the robbery and had disclosed facts that would be known to the robber alone. Additionally, Gerber had shown his roommate the dye-stained shower curtain in their bathroom, resulting from Gerber's attempt to wash the dye from the money. After corroborating this information from the roommate, the government obtained a warrant for Gerber's arrest and a search warrant, containing a particularized description of the car based on the eyewitness's account. Both warrants were issued in the late afternoon on September 12, 1991. Because the FBI intended to arrest Gerber that evening and to search the car the next day, the search warrant was drafted to expire on Friday, September 13, 1991. Pursuant to Fed.R.Crim.P. 41(c), the government could have requested ten days to search the car.

On the evening of September 12, 1991, Gerber parked his car in a technical school parking lot and attended class. The school parking lot was unsecured and connected to a public road. Gerber was called from his class and arrested. The agents did not arrest Gerber while he was in his car because they had probable cause to believe that he had the firearm used in the robbery inside the car. The automobile, which was fully operational and not registered to Gerber, was driven to the FBI impound following Gerber's arrest.

The agents impounded the car because they intended to search it under the search warrant and because the car was evidence of the bank robbery based on the eyewitness's identification. 1 During the search of the car interior on September 13, 1991, the agents seized dye stained towels, two gun cases and a coin bag matching the description of the bag used in the robbery. The agents also removed front-seat upholstery stained with the same red dye used in the bank dye packs.

The agents, however, could not locate the hood release lever to enable them to search under the hood. Rather than damaging the car, the agents decided to wait until the next business day, the following Monday, to obtain the assistance of an automobile mechanic in opening the hood. On Monday, September 16, 1991, the agents resumed their search of the vehicle with the aid of a mechanic. The agents were not aware that the search warrant had expired the previous Friday.

The automobile mechanic raised the hood, revealing key pieces of evidence: a loaded nine millimeter Glock pistol, clear plastic gloves, a homemade black ski mask, and an ammunition box with Gerber's fingerprints on it. The pistol and gloves were stained with the red bank dye. The car was released from FBI impoundment to Gerber's stepfather, the registered owner of the vehicle, on September 16, 1991.

Gerber was indicted by a grand jury and charged with armed bank robbery, using a firearm during the commission of a violent felony, and possessing a firearm while being convicted as a felon, in violation of 18 U.S.C. §§ 2113(a) & (d), 924(c), and 922(g)(1), respectively. Represented by a federal public defender, Gerber filed a motion to suppress the evidence seized from the car, including "a bag with $97.00 in quarters, two pistol bags, part of a seat cover, gloves, a mask, a 9mm Glock pistol, a box of 9mm ammunition, towels, United States currency, and clothing." R1-14-1. The government opposed the suppression motion. Gerber and the government filed a conditional plea agreement wherein Gerber reserved his right to appeal denial of his suppression motion and to withdraw his guilty plea if his suppression motion was granted.

Without an evidentiary hearing, the district judge granted the suppression motion, which included evidence obtained on September 13, 1991, during the duration of the search warrant, as well as the evidence seized on September 16, 1991. In granting Gerber's suppression motion, the district court stated: "There is no suggestion here that the warrant was improperly issued. The government was simply careless in executing the warrant several days late, and the exclusionary rule was fashioned to deter such mistakes." R1-32-3.

The government filed a motion for reconsideration and for an evidentiary hearing, a notice of supplemental authority in support of the motion for reconsideration, and an alternative motion for leave to file an affidavit and memorandum of law in the absence of an evidentiary hearing to allow the government to present its evidence in affidavit form. The district court denied these motions. The government then filed this appeal. At oral argument, Gerber's counsel conceded that the evidence obtained from the interior of the car on September 13, 1991, while the search warrant was in effect, was suppressed erroneously. Accordingly, we address only whether the evidence obtained from under the hood of the vehicle on September 16, 1991, was suppressed properly.

II. DISCUSSION

"The Fourth Amendment by its terms prohibits 'unreasonable' searches and seizures." New York v. Class, 475 U.S. 106, 116, 106 S.Ct. 960, 967, 89 L.Ed.2d 81 (1986). "The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts." Coolidge v. New Hampshire, 403 U.S. 443, 509-10, 91 S.Ct. 2022, 2060, 29 L.Ed.2d 564 (1971) (Black, J., concurring and dissenting). "[T]he Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution." Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). The bank personnels' recounting of Gerber's attire, weapon and money bags taken, the eyewitness's description of the car that Gerber was driving, and the roommate's account of information concerning the robbery provided sufficient probable cause for the search warrant for the car.

" 'A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search.' " 2 United States v. Johns, 469 U.S. 478, 483, 105 S.Ct. 881, 885, 83 L.Ed.2d 890 (1985) (quoting United States v. Ross, 456 U.S. 798, 821, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982)). Gerber has conceded that the evidence obtained from the interior of the car on Friday, September 13 was seized legitimately pursuant to the search warrant. He has not contended that the additionally incriminating evidence under the hood could not have been seized on the same day. The agents attempted to raise the hood, but were unable to locate the lever with which to open the hood. To avoid damaging the car, the agents, unaware of the expiration of the search warrant on September 13, elected to wait until the following business day, Monday, September 16, to open the hood with the assistance of an automobile mechanic.

Gerber's sole contention on appeal is that the pistol, gloves, mask, and ammunition box found under the hood on Monday, September 16 should have been suppressed because the search warrant for the car had expired. He argues that the FBI agents should have obtained another search warrant and that their failure to do so requires the suppression of this additional evidence. Not only was there ample probable cause for the car search on the preceding Friday, but also probable cause was enhanced on that unlucky Friday the thirteenth for Gerber by the discovery of the red-dye-stained towels and upholstery of the front seat of the car as well as the gun cases and the coin bag. In a very real sense, he was caught "red handed." We view the opening of the hood on the following Monday as the continuation of the search for which the agents had a valid warrant on the preceding Friday. If they had been able to raise the hood in the normal manner or by force on Friday, then Gerber could not complain about the evidence recovered and this case would not be before us.

The agents did not delay the search deliberately or in bad faith. To the contrary, they did not want to damage the car by forcing the hood open, and they were unaware that the warrant had expired. Without question, they could have obtained an additional warrant based on enhanced probable cause for the renewed search had they been aware that the previous warrant had expired. "It is no answer to say that the police could have...

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