U.S. v. Harrington

• Decision Date: 01 February 1991
• Docket Number: No. 90-30103,90-30103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Olon HARRINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1371

923 F.2d 1371

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

No. 90-30103.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 1990.

Decided Jan. 18, 1991.

As Corrected Feb. 1, 1991.

Steven Jacobson, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Leslie K. Baker, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, POOLE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

A jury convicted David Olon Harrington of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a), (d) (Count 1), carrying a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1) (Count 2), and being a convicted felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) (Count 3). The district court sentenced Harrington to consecutive sentences of 300 months on Count 1, 60 months on Count 2, and 27 months on Count 3. Harrington appeals his conviction and his sentence. We affirm in part, reverse in part, vacate Harrington's sentence and remand for resentencing.

FACTS

On November 3, 1987, at approximately 4:30 p.m., a man wearing a nylon stocking over his face entered the Far West Federal Bank in Oregon and yelled at everyone not to move. The branch manager activated the bank's alarm and surveillance cameras. During the robbery, the man brandished a gun in a threatening manner and pointed it at various tellers and customers. The man said the gun was a .357 magnum.

The man instructed the tellers to put all the money on the counter. One teller included "bait" bills in the money. After placing the money in a blue bag, the man ordered everyone to lie on the floor and threatened to kill anyone who watched him leave or attempted to follow him.

At 4:39 p.m. Officer Michael Schmitt received a radio call concerning the robbery. Officer Schmitt was approximately three blocks from the bank and drove immediately to the bank. One witness described the man to Schmitt and told Schmitt the direction in which he ran. Schmitt drove off in pursuit of the suspect.

Within a short distance, Schmitt saw a man running down the street. The man matched the description given by the witness and was carrying a blue bag. Schmitt called for assistance and drove slowly down the street in his marked police car after the suspect. The suspect continued to run, occasionally looking back at Schmitt. Schmitt parked his car in the middle of the street, ordered the man to stop and drew his gun. The man turned and fired several shots at Schmitt.

Because he was in a residential neighborhood, Schmitt decided not to shoot back. Schmitt ducked down in the driver's seat of the car and backed up. When the gun shots stopped, Schmitt looked up and saw the suspect running away. Following in his police car, Schmitt attempted to apprehend the suspect, but eventually lost sight of him.

During this time, police had surrounded the area. Officer Galen Tercek positioned himself approximately one hundred yards from where Schmitt last saw the suspect. About an hour later, Tercek saw the defendant come out from behind a house carrying a blue bag. The defendant fit the Police apprehended the defendant and searched the blue bag. The bag contained approximately $8,759 in currency, including the bait bills from the bank. The gun was a .357 magnum loaded with five rounds.

general physical description of the man who robbed the bank and shot at Schmitt. Tercek repeatedly ordered the defendant to stop and at some point aimed his gun at the defendant. The defendant ignored Tercek and continued to walk toward some bushes. The defendant finally complied with Tercek's orders and began to lower himself to the ground. As he did so, he kept the blue bag in his left hand and tossed a revolver from his right hand.

A police dog led officers to a shed behind the house from which the defendant had emerged. In the shed, police officers discovered six empty .357 magnum caliber cartridge cases, and a jacket and pair of pants which Officer Schmitt identified as similar to the clothing worn by the man who shot at him.

The defendant's trial, conviction, sentence and this appeal followed.

DISCUSSION

A. Initial Seizure of Harrington

Harrington argues that when Officer Tercek drew his gun, pointed it at Harrington and ordered him to stop, the officer's display of force converted an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), into a de facto arrest for which, Harrington contends, probable cause was lacking. In the alternative, should we conclude the seizure was merely a Terry stop, Harrington argues that Tercek lacked reasonable suspicion to stop him.

We review de novo whether a seizure exceeded the bounds of a Terry stop and became a de facto arrest. United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir.1987).

The use of force during a Terry stop does not convert the stop into an arrest if the force is justified by concern for the safety of the officer or others. See United States v. Alvarez, 899 F.2d 833, 838 (9th Cir.1990) (ordering defendant to leave car at gunpoint); Buffington, 815 F.2d at 1300-01 (ordering defendant to leave car and to lie down at gunpoint); United States v. Taylor, 716 F.2d 701, 708-09 (9th Cir.1983) (ordering defendant to leave car and to lie down in ditch at gunpoint and handcuffing defendant); United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir.1983) (per curiam) (pointing gun at defendant and ordering her to "prone out").

Officer Tercek's concern for his safety justified his use of force to stop Harrington. The police were trying to apprehend a person involved in an armed robbery. Officer Tercek heard the police radio broadcast which reported that a person who fit Harrington's physical description robbed the bank at gunpoint and fired shots at another officer. Tercek confronted Harrington about 100 yards from where the bank robbery suspect was last seen and about an hour and ten minutes after the robbery. Tercek saw Harrington carrying a blue bag and he knew from the police broadcast that the robber had put the money in a blue bag. Finally, Harrington ignored Tercek's repeated orders to stop and approached bushes from where Tercek feared shots might be fired.

We conclude that Officer Tercek had a reasonable and articulable suspicion that Harrington was engaged in criminal activity. A Terry stop was thus justified, see Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980), and under the circumstances, the officer's use of force did not convert Harrington's seizure into a de facto arrest. The seizure was lawful, and did not preclude admission into evidence of items recovered at the time of the seizure.

B. Authentication of Evidence

At trial, Harrington denied robbing the bank. He testified an unnamed individual committed the robbery. Harrington said this individual gave him $20 and told him to run if he saw a police car. Harrington said he put the $20 in a pack of cigarettes he was carrying.

In its rebuttal, the prosecution called Officer Tercek. Tercek identified the items seized from Harrington when Harrington was arrested, and which were placed into an evidence bag by the police. Tercek examined the contents of the evidence bag, including a pack of cigarettes, and could not find a $20 bill or any currency amounting to $20 in the pack of cigarettes or in any other item in the bag.

Harrington argues that the district court erred by admitting the seized items into evidence and by permitting Officer Tercek to testify that he could not find $20 in the bag. Harrington does not dispute that the items in the bag were seized from him. He argues that the bag and its contents, which lacked $20 in the cigarette package or in the bag, were not properly authenticated because of an absence of proof of the chain of custody.

The admission of evidence is within the district court's discretion and reviewable under an abuse of discretion standard. United States v. Black, 767 F.2d 1334, 1342 (9th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 557 (1985). The authentication of evidence is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). If the evidence is an object connected with the commission of a crime, the proponent must also establish the chain of custody. Gallego v. United States, 276 F.2d 914, 917 (9th Cir.1960). The prosecution must introduce sufficient proof so that a reasonable juror could find that the items in the bag are in "substantially the same condition" as when they were seized. Id.; see United States v. Jardina, 747 F.2d 945, 951 (5th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985). The district court may admit the evidence if there is a "reasonable probability the article has not been changed in important respects." Gallego, 276 F.2d at 917. Further, in the absence of any evidence of tampering, a presumption exists that public officers "properly discharge[ ] their official duties." Id.

The prosecution introduced sufficient evidence from which the district court could conclude that a reasonable juror could find the evidence had not been altered. Officer Tercek testified that he was present when Criminalist Johnson of the Gresham Police Department placed the items seized from Harrington into a bag and that the bag he examined at the time of trial contained all of the items seized from Harrington. Tercek identified a record attached to the bag which indicated where the bag had been from its seizure until the time of trial, and who had viewed or possessed the bag.

Notwithstanding the foregoing, Harrington argues that because Tercek was not the custodian of the bag, and could not testify from memory what items were seized...