U.S. v. Banks

• Decision Date: 09 January 2008
• Docket Number: No. 06-3593.,06-3593.
• Citation: 514 F.3d 769
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Clarence Frazier BANKS, III, Defendant/Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

514 F.3d 769

UNITED STATES of America, Plaintiff/Appellee, v. Clarence Frazier BANKS, III, Defendant/Appellant.

No. 06-3593.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2007.

Filed: January 9, 2008.

Steven M. Foritano, Spec. Asst. U.S. Atty., Richard E. Rothrock, Asst. U.S. Atty., Debra L. Scorpiniti, Asst. U.S. Atty., Des Moines, IA, for appellee.

Nicholas Drees, Fed. Public Defender, Timothy S. Ross-Boon, Asst. Fed. Public Defender, Des Moines, IA, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.¹

Clarence Frazier Banks, III appeals from his conviction, following a jury trial where he was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On appeal, Banks argues the following: (1) the district court² erred by allowing the firearm into evidence because it was seized in violation of the search warrant requirement of the Fourth Amendment; (2) the district court erred in ruling that a pawn shop receipt was admissible non-hearsay and that an ATF purchase form was admissible under the residual hearsay exception; (3) the verdict reached by the jury was not supported by sufficient evidence; and (4) the district court erred during sentencing when it found that Banks had previously committed two felony crimes of violence and in concluding that his criminal history category was VI. In addition, he argues that the sentence imposed is unreasonable under 18 U.S.C. § 3553(a). We affirm.

I.

Des Moines police arrested Banks on May 4, 2004 when he drove up to the driveway of a house where they were executing a narcotics search warrant. Officer Mahlstadt found narcotics on or near Banks, who told police his name was Andre Stevens. Banks was released before police learned his true identity or that he was wanted on-out-of state warrants. On May 12, Officer Stueckrath was conducting surveillance when he observed Banks in a car. He arrested Banks on the out-of-state warrants and identified the car as being registered to Brenda Jones. That same day Officer Mahlstadt contacted Jones. He learned that Banks had been staying at Jones's apartment and that she had loaned him her car. Officer Mahlstadt obtained consent from Jones to search her apartment for contraband.

Inside the apartment, Mahlstadt sat with Jones while Officer. Mathis searched the bedroom. Jones told the officers that they would find a small bag of marijuana in her bedroom closet, and Officer Mathis seized it. On the floor in Jones's bedroom, Mathis found a black zippered gym bag. Inside the gym bag, he found a locked, plastic container bearing the words "PHOENIX ARMS," men's clothing, and a credit card offer letter addressed to Andre Stevens. Mathis loosened the hinge on the Phoenix Arms container and seized a Phoenix Arms semi-automatic pistol and ammunition, along with a receipt for the gun from a Colorado pawn shop made out to Andre Stevens. Upon further search of the bag, Mathis discovered an Alcohol, Tobacco, and Firearm (ATF) purchase form for the gun, which was also in the name of Andre Stevens. Mathis seized the gun, case, ammunition, receipt, ATF form, and letter.

Jones told police that the bag belonged to Banks, although she referred to him as Andre Stevens. Banks was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g). At trial, Banks stipulated to the use of the alias. Jones identified him as Andre Stevens, along with testifying that he spent several nights at her apartment and that he had borrowed her car with permission. Banks was convicted of violating § 922(g). He was sentenced to 100 months' imprisonment, followed by three years of supervised release.

II.

The threshold issue in this case is whether Officer Mathis's search of the locked gun case and seizure of its contents violated Banks's Fourth Amendment rights. Banks filed a motion to suppress the gun, arguing Mathis violated his Fourth Amendment rights when he broke open and searched the gun case without a warrant. The district court denied the motion, holding that no Fourth Amendment search occurred because Banks had no reasonable expectation of privacy in the contents of what was plainly a gun case. Banks appeals the denial of his motion to suppress.

We review "findings of historical fact only for clear error and ... give due weight to inferences drawn from those facts by resident judges and local law enforcement officers," but the ultimate conclusion of whether an exception to the warrant clause exists we review de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

A.

Police may seize, without a warrant, an item that is 1) in plain view 2) when it is observed from a lawful vantage point,³ 3) where the incriminating character of the item is immediately apparent. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The first requirement, that the objects be in plain view, "is often considered an exception to the general rule that warrantless searches are presumptively unreasonable...." Id. at 133-34, 110 S.Ct. 2301. The third requirement, that the incriminating character of an item be immediately apparent, is satisfied when police have. "probable cause to associate the property with criminal activity." United States v. Raines, 243 F.3d 419, 422 (8th Cir.2001) (internal quotation marks omitted). Probable cause is required to justify the seizure of an item that police observe in plain view. Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987): Ultimately, the standard by which a warrantless search and seizure is reviewed under the Fourth Amendment is reasonableness. Id.

First, we consider whether police should have obtained a warrant before they opened the Phoenix Arms container. Observing objects in plain view violates no reasonable expectation of privacy, which obviates the need for a search warrant. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (stating that no invasion of privacy occurs when an item is observed in plain view). Ordinarily, a warrant is necessary before police may open a closed container because by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. Robbins v. California, 453 U.S. 420, 427, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view. In Arkansas v. Sanders, the Court suggested that no warrant is required to open such containers: "some containers (for example . . . a gun case) by their very nature cannot support a reasonable expectation of privacy because their contents can be inferred from their outward appearance." Arkansas v. Sanders, 442 U.S. 753 764-65 n. 13, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (emphasis added), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). We previously followed the Sanders dictum when we affirmed a district court's determination that no warrant was necessary to search a "bag [whose] size and shape suggested it contained a gun." United States v. Miller, 929 F.2d 364, 364-65 (8th Cir.1991). This exception is limited to those rare containers that are designed for a single purpose, Texas v. Brown, 460 U.S. 730, 750-51, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring in the judgment), because the "distinctive configuration of [such] container[s] proclaims [their] contents; [consequently,] the contents cannot fairly be said to have been removed from a searching officer's view," Robbins, 453 U.S. at 427, 101 S.Ct. 2841. Individuals, therefore, possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point.

There is some suggestion, however, that this does not end the inquiry of whether police may open the container without a warrant because the contents of a single-purpose container are not truly in plain view. In Arizona v. Hicks, the Court gave life to the idea that some lesser invasions of privacy might be justified without a warrant when part of the object is in plain view and police have probable cause to seize it. 480 U.S. at 325, 107 S.Ct. 1149 (holding that observance of stereo turntable in plain view did not justify police moving turntable in order to read its serial number when they lacked, probable cause). The single-purpose nature of a container reduces the degree of privacy that a reasonable person may expect, but it does not eliminate it. If we allow police to open any single-purpose container they lawfully come across we would be authorizing exploratory searches of containers where a reasonable person would rightfully expect privacy: for example, police could open violin cases and guitar bags, look inside cereal boxes and bread baskets, or empty out clothes hampers and jewelry boxes without even a suspicion that these containers hold evidence of a crime. See, e.g., United States v. Donnes, 947 F.2d 1430, 1437 (10th Cir.1991) (holding that police violated Fourth Amendment when they searched camera lens case that produced drugs). Hicks was concerned with a statement of the plain view doctrine that cut it "loose from its theoretical and practical moorings," Hicks, 480 U.S. at 326-27, 107 S.Ct. 1149, and we do not wish our statement of the single-purpose container rule to be read such that we authorize police to open any seemingly innocuous single-purpose container. Hicks suggests that such containers would be protected by requiring police to have probable cause to seize the container before they may open it. But we need not decide if such a requirement is necessary because in this case, as we explain below, police possessed...