U.S. v. Gleason, 94-1080

• Decision Date: 20 May 1994
• Docket Number: No. 94-1080,94-1080
• Parties: UNITED STATES of America, Appellee, v. Donald Dean GLEASON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 605

25 F.3d 605

UNITED STATES of America, Appellee, v. Donald Dean GLEASON, Appellant.

No. 94-1080.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1994.

Decided May 20, 1994.

Alfred E. Willett, Cedar Rapids, IA (argued) for the appellant.

Stephen John Rapp, Waterloo, IA, argued (Janet L. Pepenthien, Cedar Rapids, IA, on the brief), for appellee.

Before McMILLIAN, WOLLMAN, Circuit Judges, and NANGLE, Senior District Judge. ^*

NANGLE, Senior District Judge.

Donald Dean Gleason entered a conditional plea of guilty to one count of bank robbery in violation of 18 U.S.C. Sec. 2113. He appeals the district court's ¹ denial of his motion to suppress and three aspects of his sentence. We affirm.

I.

On June 16, 1993, at approximately 1:35 p.m., Gleason robbed American Trust and Savings Bank in Lowden, Iowa. He displayed a small handgun, and directed Janie Drewleow, a bank employee, to place money in a medium-sized white plastic shopping bag with a checkerboard design. Drewleow deposited $5,022.00 in the bag and handed the bag to Gleason. Gleason then fled the bank in an older model full-size green pickup truck with no tailgate or license plate in the back and with a large spare tire lying in the bed of the truck.

Shortly after Gleason fled, police arrived at the bank and radioed a description of the bank robber and the truck over the police aid channel. This description included the fact that the robber was armed. Approximately 25 minutes after the robber fled the bank, Trooper Agapitos of the Iowa State Patrol met a dark green pickup matching the description of the getaway vehicle. The pickup turned into a gravel road, and Gleason got out of the truck. Trooper Agapitos asked Gleason if he had any weapons in the truck and if he could check the truck for weapons. Gleason consented, mentioned that he was a former police officer in Davenport, Iowa, and assisted in the search. Trooper Abernathy then arrived, read Gleason his Miranda rights, handcuffed him, and placed him in the back of the patrol car. Despite Gleason's statement that the passenger door was inoperable, Trooper Agapitos unlocked and opened that door; under the passenger seat, he found a white plastic bag with a checkerboard design on front containing $5,002.00. The gun and the clothing used in the robbery were never found.

When FBI agents arrived, they asked Gleason for a written consent to search. Before signing the consent form, Gleason asked Trooper Agapitos to note the following on the bottom of the form: "Prior to Donald Gleason signing this consent to search, a bag of a large sum of money was found under the passenger side seat." Gleason then signed the written consent form at 4:37 p.m.

After his indictment and plea of not guilty, Gleason filed a motion to suppress contesting the consensual nature of the search of his pickup truck. Although Gleason claimed at the suppression hearing that he had not consented to the search, the district court rejected his testimony and found consent. The court alternatively held that the search was justified as a limited investigative stop. On the eve of trial, Gleason entered a guilty plea conditioned on his right to appeal the trial court's ruling on his motion to suppress.

At the sentencing on December 21, 1993, the district court enhanced Gleason's base offense level by two levels for obstruction of justice, denied Gleason a two-level reduction for acceptance of responsibility, and assessed a five-level enhancement for use of a firearm.

II.

Gleason first contests the district court's denial of his motion to suppress, arguing that he did not voluntarily consent to the search and that the search was not justified as part of an investigative stop. His arguments are without merit.

A district court's determination that a defendant voluntarily consented to a search is reviewed under the clearly erroneous standard. United States v. Barahona, 990 F.2d 412 (8th Cir.1993). A person's consent may be inferred from his words, gestures, and conduct. Id. at 418. The district court properly inferred Gleason's consent from his testimony that facilitated the trooper's search of a cardboard box located in the truck. In addition to Gleason's assistance during the search, the district court noted that Gleason's general demeanor suggested consent; he chatted with Trooper Agapitos, reminded the trooper of his work as a police officer, and acted friendly, not hostile. Finally, the district court ultimately found Trooper Agapitos' testimony that Gleason consented to the search to be more credible than Gleason's since Trooper Agapitos was an experienced officer and Gleason had a great deal of self-interest in having the testimony suppressed. This credibility determination is "virtually unreviewable on appeal." United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993). We find no clear error in either the district court's inferences from Gleason's conduct or the district court's credibility determination. ²

Gleason next contends that even if he consented, he consented only to a stop and frisk of his truck for weapons which was concluded before Trooper Agapitos found the money. Gleason maintains that Trooper Agapitos asked, "Do you have any weapons in there, mind if I look?" and that he responded, "No." In light of the compound question, Gleason alleges that he gave consent only to a search for weapons. Assuming arguendo that Gleason gave only limited consent, his failure to object to the continuing search made the trooper's search of any place a gun could be hidden, including under the passenger seat of the truck, objectively reasonable. See United States v. Martel-Martines, 988 F.2d 855 (8th Cir.1993) (noting scope of defendant's consent measured by "objective reasonableness").

In addition to his consent argument, Gleason attacks the district court's alternative holding that the search was incident to a valid investigative stop. "[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts, which taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968)); accord United States v. Watts, 7 F.3d 122 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 895, 127 L.Ed.2d 88 (1994). The fact that the radio report concerning the robbery mentioned that the suspect was armed provided Trooper Agapitos with a reasonable basis to conclude that the truck contained a weapon. See Watts, 7 F.3d at 126. As part of the search for weapons, Trooper Agapitos did not need to ignore the money he discovered. See United States v. Peoples, 925 F.2d 1082 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 370, 116 L.Ed.2d 322 (1991).

As part of both the consent and Terry stop arguments, Gleason alleges that Trooper Agapitos conducted a second search following the arrival of Trooper Abernathy, who placed Gleason in his patrol car. Gleason does not prevail under his consent argument because he never withdrew his consent upon Trooper Abernathy's arrival. Gleason's Terry argument also is without merit since a limited search of an automobile's interior is permissible even when the occupant has been removed from the automobile to deny the occupant further access to his weapons. United States v. Cummins, 920 F.2d 498 (8th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991).

Having determined that Gleason consented to the search of his automobile and alternatively that the search was justified as incident to a valid investigative stop, we affirm the district court's holdings. ³

III.

Gleason further contends that the district court erroneously assessed a two-level enhancement to his base offense level based upon his perjury at the suppression hearing. The applicable guideline provides a two-level increase "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing" of the offense. U.S.S.G. Sec. 3C1.1 (Nov. 1, 1993). "[C]ommitting, suborning, or attempting to suborn perjury" is a type of conduct to which the enhancement applies. U.S.S.G. Sec. 3C1.1, comment (n. 3(b))...