U.S. v. Herrera
| Decision Date | 06 February 1987 |
| Docket Number | No. 86-1677,86-1677 |
| Citation | 810 F.2d 989 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. HERRERA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Alonzo J. Padilla, Albuquerque, N.M., for defendant-appellant.
William L. Lutz, U.S. Atty., James D. Tierney, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.
Before BARRETT, SETH and TACHA, Circuit Judges.
The defendant, an employee of a post office, was charged with theft of mail and receipt of stolen mail matter under 18 U.S.C. Sec. 1708. The jury found defendant guilty and this appeal was taken.
There was a pretrial hearing on defendant's motions to suppress evidence and statements. The trial court denied the motions. This appeal concerns basically the denial of the motion to suppress evidence. This is not a car or a home search.
The record shows that two postal inspectors went to the particular post office because there had been a loss of a large number of letters which contained food stamps. The inspectors introduced into the mail at the post office a real letter containing food stamps which also contained a device whereby the inspectors could follow the letter electronically within the post office. They also used the rooms, walkways and windows constructed in the post office for their use to watch the action of the employees without being seen themselves. They were able to follow the movement of the test letter the entire day visually from short distances with binoculars and with the electronic tracking device. There is no real challenge to the fact that the letter was so continuously traced into defendant's possession in the post office, into a briefcase of defendant which he took out of the building into the parking lot.
The central issue in this case concerns the denial of defendant's motion to suppress letters contained in a briefcase taken from defendant's possession at or about the time he was arrested. We have applied the clearly erroneous rule to these determinations by the trial courts. United States v. Cooper, 733 F.2d 1360 (10th Cir.1984); United States v. Miles, 449 F.2d 1272 (10th Cir.1971).
In the application of this standard of review we consider the entire record including the hearing on the motion to suppress and the trial record and transcript. United States v. Smith, 527 F.2d 692 (10th Cir.).
The basic issues are whether the arrest of defendant was lawful and whether the search and seizure were incident to such an arrest.
The defendant urges also that at trial several witnesses were not permitted to testify. We however find this point to be without merit as the testimony sought to be produced, if there was a valid proffer, was obviously cumulative.
The inspectors by continuous surveillance had thus seen and followed the entire sequence of events which constituted the crime charged. They saw defendant pick up the letter from a desk at the post office, take possession of it, put it in the briefcase, take the case out of the post office building into the parking lot and walk towards his car. They there approached the defendant, took the briefcase from him and asked him to return to the building with them.
As mentioned, an inspector took the briefcase from the defendant when they stopped him in the parking lot. The officers at that time knew without doubt that the test letter was in the case as they had visually and electronically traced it continuously. When the inspectors and defendant entered an office in the building from the parking lot the testimony is not altogether clear as to who removed the contents of the briefcase, the defendant or an inspector, or whether there was some consent to the search, but it really makes no difference. The contents were dumped out on a table and among defendant's papers were the test letter and another letter addressed to Eddie Gomez also containing food stamps. Without question the letters did not belong to the defendant.
The trial court concluded that it was not necessary to decide the consent issue because the seizure of evidence, in any event, was incident to a lawful arrest. We agree. The trial court observed that the briefcase could have been opened in the parking lot and it makes no difference that it was opened a few minutes later in the building.
All testified that defendant sorted out the letters and papers that were in the case. It is difficult to see how there could be a search and seizure during the course of a lawful arrest if a scenario such as this is not upheld. The Supreme Court so observed in New York v. Belton, 453...
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U.S. v. Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars ($639,558) In U.S. Currency
...Bleichfeld's arrest (New York v. Belton, 453 U.S. at 462, 101 S.Ct. at 2865), or only a few minutes later. Compare United States v. Herrera, 810 F.2d 989, 990 (10th Cir.1987), sustaining a warrantless search of defendant's briefcase conducted a "few minutes" and "short distance" from his ar......
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