U.S. v. Gallman

• Decision Date: 05 July 1990
• Docket Number: No. 89-2509,89-2509
• Citation: 907 F.2d 639
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David GALLMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 639

907 F.2d 639

UNITED STATES of America, Plaintiff-Appellee, v. David GALLMAN, Defendant-Appellant.

No. 89-2509.

United States Court of Appeals Seventh Circuit.

Argued April 17, 1990.

Decided July 5, 1990.

Loretta H. Davenport, Asst. U.S. Atty., Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Daniel G. Martin, Federal Public Defender, Office of the Federal Public Defender, Chicago, Ill., for defendant-appellant.

Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

On June 3, 1988, agents of the Department of Alcohol, Tobacco and Firearms received a tip from an informant that David Gallman, a convicted felon, had firearms in his automobile. They were told that Gallman intended to sell the firearms (which were stolen) after transporting them across state lines. On June 6, 1988, the ATF agents set up a sting. One of the agents acted as a prospective gun purchaser and met with Gallman. Gallman took the agent to his car, which was parked in the private parking lot of an apartment complex, and showed the agent some guns. The guns were in the car's trunk. Gallman also told the agent he had guns hidden inside the passenger/driver's compartment of the car, and showed him one that was hidden in an ice chest. Gallman offered to sell some guns to the agent for $900. The agent made the deal and left, ostensibly to get some money.

While away, the agent informed his fellow agents of what had transpired. He then rejoined Gallman. The other agents followed. They approached Gallman and asked for i.d., which they received. They ran an i.d. check on him that confirmed his status as a convicted felon. They then asked Gallman some questions. Gallman was not in a talking mood, however, and he left for his car. The ATF bunch left with him. The agents asked for permission to search the car. The permission was withheld. Gallman told the agents to arrest him or leave him alone, took out his car key, and moved to enter the car. At that point the agents placed Gallman under arrest.

After the arrest, the agents searched the car. They found the guns. They then had the car impounded and towed away.

Gallman was indicted on numerous offenses. He filed a motion to suppress evidence, but the motion was denied. He then reached a conditional plea agreement with the government whereby he pled guilty to violating 18 U.S.C. Sec. 922(g)(1), felony possession of firearms, and 18 U.S.C. Sec. 922(j), receiving stolen firearms. He was sentenced pursuant to 18 U.S.C. Sec. 924(e), which imposes an enhanced sentence on certain career criminals, and is now in jail.

I.

In his appeal, Gallman takes two positions. First, he argues that the district court erred in denying his motion to suppress the evidence seized from his car. Obviously the ATF agents had probable cause to arrest Gallman. He does not dispute that. He does dispute, however, that the agents had probable cause to believe that his car carried contraband. In light of the facts, we consider this disputation somewhat frivolous. Probable cause exists where there exists " 'a fair probability that contraband or evidence of a crime will be found.' " United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). In this case, "fair probability" is an understatement of the likelihood of finding contraband in Gallman's car.

Nevertheless, Gallman argues that the search of his car was improper. He argues that under the dictates of the fourth amendment the ATF agents should have obtained a warrant. The government argues that the "automobile exception" to the fourth amendment's warrant requirement relieved the agents of that necessity.

Both parties recognize the existence of the "automobile exception." See generally California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). That exception allows the warrantless search of an automobile where probable cause exists to believe the car contains contraband or other evidence of a crime. See Carney, supra; Chambers, supra. See also United States v. Boden, 854 F.2d 983 (7th Cir.1988); United States v. Rivera, 825 F.2d 152 (7th Cir.), cert. denied, Robles v. United States, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). Thus, it seems to undermine Gallman's position. Yet Gallman is undaunted. He argues that the exception does not apply in this case because its underlying reasons do not apply.

Two reasons are said to justify the automobile exception: First, the "ready mobility" of an automobile creates circumstances in which it and the evidence could easily disappear; second, the pervasive regulation of automobiles creates a lesser expectation of privacy associated with them than with, for example, a dwelling. Carney, 471 U.S. at 390-91, 105 S.Ct. at 2069; Rivera, 825 F.2d at 158. Gallman argues that after his arrest the automobile was not readily mobile because he had been arrested and the agents had his key. These circumstances do indeed make the car less accessible to Gallman, but they do not make it less mobile. Gallman also argues that the "pervasive regulation" theory does not apply because his car was parked on a private lot and ATF agents are not involved in automobile regulation. But the pervasive regulation theory states merely that because of pervasive regulation a person's expectation of privacy in an automobile is much less than it otherwise would be. There is a low expectation of privacy in an automobile because of pervasive regulation in general. It is not the pervasive regulation per se that is important, but rather the low expectation of privacy. That low expectation remains even though the car is, at one moment, outside the main terrain upon which regulatory enforcement occurs, or even though the car is searched by authorities whose business does not include the regulation of automobiles. And it remains even though the particular search that is challenged was not at all a search pursuant to automobile regulation. Thus, inconsequential are the facts that Gallman's car was in an apartment parking lot and searched by ATF agents.

Gallman's arguments notwithstanding, ¹ the underlying reasons for the automobile exception are applicable to this case. See Carney, 471 U.S. at 392-93, 105 S.Ct. at 2070. So too is the exception itself. See United States v. Arango, 879 F.2d 1501, 1507 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1111, 107 L.Ed.2d 1019 (1990); Boden, supra; Rivera, supra. See also United States v. Pace, 898 F.2d 1218, 1243-1244 (7th Cir.1990) (dicta). The search of Gallman's car was constitutional ² and the denial of Gallman's motion to suppress was appropriate.

II.

Gallman next argues that the district court erred in enhancing his sentence under 18 U.S.C. Sec. 924(e). If a person has three prior "violent felony" convictions when he violates 18 U.S.C. Sec. 922(g)(1), 18 U.S.C. Sec. 924(e)(1) calls for the imposition upon him of a minimum sentence of 15 years incarceration without chance for parole. Gallman had three prior convictions. He was convicted in 1967 for armed robbery after he pled guilty to the charge. He also was convicted in 1979 of burglarizing a pharmacy and in 1984 of burglarizing a residence. Thus upon his conviction for violating 18 U.S.C. Sec. 922(g)(1) he was sentenced to a 15 year term. He now attacks the sentence in three ways.

First, Gallman asserts that 18 U.S.C. Sec. 924(e)(1) violates the eighth amendment's principle of proportionality. It does not. United States v. Dombrowski, 877 F.2d 520, 526 (7th Cir.1989).

Second, Gallman asserts that his guilty plea in 1967 was not voluntarily and intelligently rendered. For a conviction to count under 18 U.S.C. Sec. 924(e)(1) the conviction must have been constitutionally obtained. See, e.g., United States v. Dickerson, 901 F.2d 579 (7th Cir.1990). See also United States v. Sullivan, 897 F.2d 530 (6th Cir.1990) (unpublished order). Cf. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967) (unconstitutional conviction may not "be used against a person either to support guilt or enhance punishment for another offense"); United States v. Brown, 899 F.2d 677 (7th Cir.1990) (conviction not voluntarily and intelligently rendered cannot be used for purposes of Sentencing Guidelines). And a conviction pursuant to a guilty plea that is not voluntarily and intelligently given is not constitutionally obtained. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Davis, 212 F.2d 264, 267 (7th Cir.1954). Thus if Gallman's 1967 plea of guilty was not voluntarily and intelligently entered, as those words are understood under the standard of the day, ³ Gallman does not have three section 924(e)(1) convictions on violent felonies and, accordingly, he would not be subject to section 924(e)(1) enhanced sentencing. See Dickerson, supra.

For purposes of section 924(e)(1), we believe that once the government has shown that a defendant has three prior "violent felony" convictions, the burden rests with the defendant to show that the conviction was unconstitutional. ⁴ See United States v. Taylor, 882 F.2d 1018, 1031 (6th Cir.) (once government introduces record certifying valid conviction, burden shifts to defendant), modified, 1989WL88622, 1989 U.S.App. LEXIS 19644 (1989); Luna v. Black, 772 F.2d 448, 450 (8th Cir.1985) (for burden of proof to shift to the government, accused must introduce evidence showing that conviction was unconstitutional). See also Brown, 899 F.2d at 680-681 (referring to Sentencing Guidelines). Thus, a defendant can overcome the government's proof of a conviction, but only if he musters evidence of that conviction's...