U.S. v. Hatfield

• Decision Date: 03 April 1987
• Docket Number: Nos. 86-5347,86-5629,s. 86-5347
• Citation: 815 F.2d 1068
• Parties: 22 Fed. R. Evid. Serv. 1387 UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee HATFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1068

815 F.2d 1068

22 Fed. R. Evid. Serv. 1387

UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee HATFIELD, Defendant-Appellant.

Nos. 86-5347, 86-5629.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 30, 1987.

Decided April 3, 1987.

James J. Prichard, Jr., argued (court-appointed), Catlettsburg, Ky., for defendant-appellant.

Louis DeFalaise, U.S. Atty., Lexington, Ky., Charle Dause, argued, for plaintiff-appellee.

Before KRUPANSKY, Circuit Judge, CELEBREZZE, Senior Circuit Judge, and WEBER, District Judge. ^*

CELEBREZZE, Senior Circuit Judge.

Defendant-appellant Richard Lee Hatfield appeals his conviction of being a felon in possession of a firearm, in violation of 18 U.S.C. app. Sec. 1202(a)(1) (1982), and the district court's denial of his Rule 33 motion for a new trial based on newly discovered evidence. Hatfield contends on appeal that the district court erred in not suppressing the physical evidence admitted against him at trial as the product of an illegal search and seizure, that evidence indicative of his burglary activity was erroneously admitted in violation of Federal Rules of Evidence 403 and 404(b), and that the district court should have granted him a new trial due to noncompliance with a Kentucky custody-of-evidence statute. We conclude that the search of Hatfield's van and seizure of the physical evidence was constitutional, that admission of the burglary evidence was not error, and that the appeal from the denial of Hatfield's Rule 33 motion was untimely. Accordingly, we affirm the judgment of conviction against Hatfield and dismiss his companion appeal for want of jurisdiction.

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the following transpired. Hatfield was driving alone in a van near Catlettsburg, Kentucky at approximately 1:15 a.m. on July 14, 1985 when Deputy Sheriff Elbert Bowe and Officer Steve McIntyre observed the van weaving from one lane to another. Stopping Hatfield to ascertain if he was driving while intoxicated, Bowe and McIntyre approached the van on foot from the rear, with Bowe to the left of the vehicle and McIntyre on the passenger's side. After Hatfield emerged from the van at Bowe's request, Sheriff Bowe determined that Hatfield was not intoxicated. Officer McIntyre informed Sheriff Bowe, however, that he had observed a large operational police scanner in the rear of the van through the window on the passenger side of the vehicle, and Sheriff Bowe told Hatfield to stand with Officer McIntyre away from the van, against the wall of a diner. Looking through the now-open door of the vehicle, Sheriff Bowe observed another, smaller police scanner between the seats of the van. He then entered the vehicle and seized this scanner, which he found to be operational, and a small "wallet" located under the scanner, which was found to contain lock picks. Believing that he had probable cause to search the rest of the van, Sheriff Bowe radioed Officer Payne to the scene to assist him in conducting a full-blown search. This search disclosed several .38-caliber bullets in a glove in an open console area under the dash, a loaded .38-caliber derringer wrapped in another glove in a map pocket behind the passenger seat, several steel bands of the type used to jimmy car door locks located under loose carpet in the rear of the van, an owner's manual for the police scanners, a catalog listing police radio frequencies, and a notebook containing local police frequencies. Following the search, Hatfield was placed in a patrol car, informed that he was under arrest for possession of police scanners, burglary tools, and a concealed weapon, and read his Miranda rights.

Hatfield was subsequently indicted by a federal grand jury for being a felon in possession of a firearm in violation of 18 U.S.C. app. Sec. 1202(a)(1)(1982). Prior to trial, he moved to suppress all of the evidence seized from the van as the product of an illegal search and seizure. The district court denied this motion upon finding two bases for Sheriff Bowe's search, namely as a search incident to arrest and as an automobile search based on probable cause supplied by the plain view observation of the illegal police scanners. Hatfield also filed a motion in limine to restrain the admission of the police scanners and burglary tools at his trial for firearm possession, but this motion too was denied by the court. Thus, all of the burglary paraphernalia was admitted as evidence against Hatfield. After a jury found Hatfield guilty, he was sentenced to two years imprisonment, and an appeal ensued (No. 86-5347). Hatfield then filed a motion for a new trial based on newly discovered evidence, alleging error in the district court's admission of the physical evidence at trial without first ascertaining compliance with a Kentucky statute requiring a court order for release of evidence from the state evidence custodian. Following the denial of this motion, another appeal ensued (No. 86-5629). The two appeals were subsequently consolidated.

Hatfield's first contention on appeal is that the district court erred in not suppressing the incriminating physical evidence taken from the van by the police officers at the scene of his arrest. According to Hatfield, the search was not justified as a search incident to arrest because he was not placed under arrest until after the search, and was not justified as a warrantless search under the automobile exception because probable cause to conduct the search was lacking. In our view, a combination of the doctrines of search incident to arrest and probable cause for automobile searches provides a sufficient basis for concluding that the search of Hatfield's van and seizure of the physical evidence was constitutional. We find that a valid arrest occurred which gave the officers the right to search at least the front passenger area of the van, and that this search supplied probable cause warranting a search of Hatfield's entire vehicle. Thus, our analysis hinges on determining that an arrest occurred, that the arrest was lawful, and that the scope of the vehicle search was justified.

There is no bright-line test for determining when an investigatory stop crosses the line and becomes an arrest. United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986). Nevertheless, a police show of force and authority such that a "reasonable person would have believed he was not free to leave," United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.), amounts to an arrest. See United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985). Further, "the determination of whether an arrest has occurred is not dependent on whether the citizen is formally placed under arrest," Hardnett, 804 F.2d at 356; any "clear deprivation of liberty caused by law enforcement officials without formal words is nonetheless an arrest." United States v. Canales, 572 F.2d 1182, 1187 (6th Cir.1978); see also United States v. Jackson, 533 F.2d 314, 316 (6th Cir.1976).

In the instant case, Sheriff Bowe testified at the suppression hearing that Hatfield was in custody prior to the search which uncovered the firearm. Hatfield testified at the hearing that when Sheriff Bowe got in the driver's side of the van to retrieve the portable scanner, the sheriff commented, "It's against the law to have a scanner in the van." Hatfield further testified that he had been "ordered" by Sheriff Bowe to stand next to the wall of the diner, accompanied by instructions from the sheriff to the other officer to "watch him," and that while standing with the officer, "I wasn't about to move anyway." We find that Hatfield was under arrest before the search when he was standing with Officer McIntyre beside the wall of the diner away from the van, at which time Hatfield had been informed that it was illegal to have the scanners in his vehicle, and had witnessed Sheriff Bowe radio Officer Payne, who then arrived on the scene to aid Sheriff Bowe in the search. Under these circumstances, there had been a clear deprivation of Hatfield's liberty by law enforcement officials such that a reasonable person would not have felt free to leave.

Since having an operable police scanner in a vehicle was a crime in Kentucky, the police clearly had probable cause to arrest Hatfield following their plain view observation of the scanners in his van. See United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976). Therefore, the arrest was valid and justified some searching of the van as a search incident to a lawful custodial arrest. New York v. Belton, 453 U.S. 454, 457-60, 101 S.Ct. 2860, 2862-64, 69 L.Ed.2d 768 (1981).

A search incident to arrest encompasses the search of anything in the area which is, or was, within the "immediate control" of the defendant. See id. at 460, 101 S.Ct. at 2864; Davis v. Robbs, 794 F.2d 1129, 1131 (6th Cir.), cert. denied, 107 S.Ct. 592, 93 L.Ed.2d 593 (1986). It is unnecessary for the purposes of this appeal, however, for us to delineate the area which is within the immediate control of the driver of a van such as Hatfield's, or to hold that the entire interior of the van was searchable incident to Hatfield's arrest. The front passenger area of the van was clearly within Hatfield's immediate control, cf. Belton, 453 U.S. at 460, 101 S.Ct. at 2864, and the search of this area alone uncovered a wallet containing lock picks ¹ and .38-caliber bullets. ² This evidence, together with the existence of operable police scanners in the vehicle, the time of night, and the location of the van in an area with a high incidence of burglary, supplied sufficient probable cause for believing that the van contained evidence of burglary. This probable cause justified the search of the...