U.S. v. Finnegan

• Decision Date: 19 December 1977
• Docket Number: No. 76-3403,76-3403
• Citation: 568 F.2d 637
• Parties: UNITED STATES of America, Appellee, v. Gary Charles FINNEGAN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 637

568 F.2d 637

UNITED STATES of America, Appellee, v. Gary Charles FINNEGAN, Appellant.

No. 76-3403.

United States Court of Appeals Ninth Circuit.

Dec. 19, 1977.

Robert D. Carpenter, Los Angeles, Cal., for appellant.

Juan P. Robertson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and CARTER, Circuit Judges, and ENRIGHT, District Judge. ^*

ENRIGHT, District Judge:

Appellant Finnegan was tried before a jury in the United States District Court for the Central District of California and was convicted for conspiracy to import and possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 846 and 963. Judgment of conviction was entered on March 1, 1976. In this appeal, Finnegan has asserted six errors by the trial court below. Upon a review of all the arguments advanced by the appellant, we find no reversible error and consequently affirm.

I

Gary Charles Finnegan was a participant in a conspiracy led by James J. Boyle which imported cocaine from South America and distributed it in Los Angeles, San Francisco and Kansas City. In August 1972 (the approximate inception of the conspiracy), Finnegan and Boyle traveled to Santiago, Chile, where they purchased cocaine from a Chilean dealer, "Alfredo," which they subsequently smuggled into the United States via El Paso, Texas. Encouraged by their success, Boyle, Finnegan and their coconspirators made five additional trips to South America, in September, October and December 1972, and February and April 1973. A total of approximately 40 to 50 pounds of cocaine was brought into the United States in this manner. In addition to transporting cocaine himself, Finnegan recruited other couriers for this task and provided funds, apparently out of his own pocket, which would be used to purchase cocaine in South America.

In November 1972, enroute to meet Boyle in Los Angeles, appellant was stopped for speeding by the California Highway Patrol. Testimony indicated darkness had fallen and defendant had been traveling at approximately 85 miles per hour. The patrol officer approached Finnegan's car window and while inquiry was being made concerning vehicle registration, Finnegan furtively attempted to stuff a large amount of currency into the glove compartment. This money was in the officer's plain view when appellant attempted to conceal it. Also in plain view was an object clearly recognizable as a gun case on the floor of the vehicle. Since the officer was alone, he placed Finnegan in custody, ¹ handcuffed him and removed him from the vehicle. He then removed the currency ($1,700) from the glove compartment, examined the gun case and found a .380 automatic pistol and two fully-loaded clips inside the case and further observed a suitcase in the hatchback of the car. Inquiry was then made of appellant as to whether there was any more currency in the car. Appellant replied in the negative. When the officer thereafter retrieved the suitcase, appellant then exclaimed that more money was contained therein. Having heard Finnegan admit the falsification, the suitcase was then completely opened and was found to contain full bundles of money wrapped in socks knotted at the end. The Highway Patrol later determined that approximately $43,000 was in the suitcase.

The officer radioed his superiors, support units arrived and defendant's car was taken to a police garage where its contents normally would have been inventoried pursuant to standard police procedure. Appellant's money and belongings were later returned to him and he was released to go on his way.

II

Appellant's first challenge is directed at the sufficiency of the evidence to support a guilty verdict. In evaluating such an argument, the evidence must be viewed in the light most favorable to the government. United States v. Ramirez-Rodriguez, 552 F.2d 883, 884 (9th Cir. 1977).

The record shows that there was ample evidence to support the jury's finding. Boyle himself told several of the coconspirators on separate occasions that Finnegan was his partner, had personally helped him on the smuggling trip and provided money for the cocaine purchases. All of such statements were in furtherance of the conspiracy. Corroboration of these assertions was provided by Finnegan's own admissions. He told one witness, whom he was trying to recruit for the conspiracy, that she would be provided with plastic bags and would be expected to smuggle in five pounds of cocaine at a time. One cocaine courier testified that Finnegan made statements to her which indicated his awareness that the money he was delivering would be used to purchase cocaine. Another courier testified that Finnegan told her that he was Boyle's partner.

Other circumstances forged the link between Finnegan and the conspiracy. Finnegan was a frequent visitor at Boyle's Decker Canyon house in Los Angeles, which apparently was the headquarters of the conspiracy. Witnesses at both ends of a phone conversation testified to a telephone call Finnegan received from Boyle in late April 1973, in which Boyle castigated Finnegan for not giving a courier the correct amount of money for her trip to Peru. The record adequately establishes that the government has met its burden of proof.

III

Finnegan's major contention on this appeal relates to evidence introduced concerning a traffic incident. Appellant asserts that the trial court should have suppressed the evidence relating to the discovery of an automatic pistol in the gun case on the floor of appellant's auto and $1,700 in cash in his glove compartment on the grounds that this evidence was the fruit of a warrantless search and was unreasonable under the Fourth Amendment. Under the "plain view" doctrine, however, discovery of evidence does not constitute a "search" within the meaning of the Fourth Amendment if an officer, standing in a place where he has a right to be, merely sees what is in plain view before him. Ker v. State of California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634-35, 10 L.Ed.2d 726 (1963). Since the patrol officer lawfully stopped Finnegan for speeding, he had a right to stand next to Finnegan's car door and observe anything in plain view through the window. Accordingly, there was no search here. The subsequent seizure of the gun and cash was lawful, since an officer viewing an item inside an automobile which reasonably appears to be the instrumentality of a crime thereby acquires probable cause to arrest the suspects and search the car more thoroughly. United States v. Webb, 533 F.2d 391, 393-94 (8th Cir. 1976); United States v. Lara, 517 F.2d 209 (5th Cir. 1975).

After observing Finnegan's furtive actions and upon discovering $1,700 in cash and an automatic pistol, the patrol officer had probable cause to believe that the other areas of the vehicle may have contained contraband. Under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 453 (1925), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and United States v. Gulma, 563 F.2d 386, Nos. 76-3188, 76-3395 (9th Cir., 1977) (construing Chambers and Carroll ), the moveable nature of an automobile is an exigent circumstance which justifies a warrantless search if there is probable cause to believe that the auto contains contraband or the instrumentality of a crime. Accordingly, the search of the suitcase was lawful.

United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), does not dictate an opposite result. Although there is a superficial similarity between this case and Chadwick they both involve luggage a close reading of Chadwick shows that that case was concerned with the creation of whole, new classes of objects to be excepted from general proscription against warrantless searches rather than with the scope of the automobile search exception.

In Chadwick, railroad officials observed two individuals loading a footlocker on a train bound for Boston. Their suspicions were aroused when they noticed that it was leaking talcum powder, a substance often used to mask the odor of marijuana or hashish, and they reported this event to federal agents who relayed the information to their counterparts in Boston.

When the train arrived in Boston, the two individuals who had loaded the footlocker in San Diego were on hand and lifted the footlocker into the trunk of Chadwick's waiting car. At that point, while the trunk was still open and before the car engine had been started, federal agents arrested all three and seized the footlocker. Ninety minutes later, without a warrant, the agents opened the footlocker, which had been locked with a padlock and regular trunk lock.

In district court, the government's effort to justify the warrantless search failed because the court saw the relationship between the footlocker and Chadwick's automobile as merely coincidental. The government did not renew this argument in the Court of Appeals, but instead sought to justify the search on the theory that a footlocker has the same mobile characteristics which support warrantless searches of automobiles. The Court of Appeals rejected this argument and the Supreme Court affirmed.

Presented with an invitation to extend the automobile exception to footlockers, the Court noted that it is the "diminished expectation of privacy which surrounds the automobile", ² rather than its mobility, which justifies warrantless search. However, since a man loading a padlocked footlocker on a train may reasonably expect that it will not be opened by prying police or railroad officials, the high expectation of privacy attendant in these circumstances forbids a warrantless search.

We note at the outset that a unique fact situation was presented in Chadwick which controlled the outcome of the case. Had the facts been only marginally different, as Justice Blackmun pointed out in his dissenting opinion, ³ the search would have been...