U.S. v. Huffhines

Decision Date15 June 1992
Docket NumberNo. 91-50426,91-50426
Citation967 F.2d 314
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Samuel HUFFHINES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Denise Meyer, Deputy Public Defender, Los Angeles, Cal., for defendant-appellant.

Brad M. Sonnenberg, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: PREGERSON, D.W. NELSON and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

A jury convicted Richard Samuel Huffhines of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In sentencing Huffhines, the district court considered this crime to be a crime of violence. Because Huffhines had two previous convictions for crimes of violence, the district court treated him as a career offender under Sentencing Guideline § 4B1.1 and sentenced him to 120 months in prison followed by three years of supervised release.

Huffhines appeals his conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Huffhines's conviction. We vacate his sentence, because we hold, consistent with our recent opinion in United States v. Sahakian, 965 F.2d 740, 742 (9th Cir.1992), that the crime of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is not a crime of violence under the 1989 amendment to guideline section 4B1.2. We remand for resentencing.

FACTS

On September 29, 1989, James Shaw reported to the Beverly Hills Police Department that he had been followed by Huffhines, who was driving a Chevrolet Blazer with New Mexico license plates. Detective Stephen Miller investigated the incident. Based on interviews with Shaw and his wife, Miller learned that Huffhines was a previous friend of Mrs. Shaw.

Shaw showed Miller a picture of Huffhines. He also told Miller that Huffhines had a prior federal conviction for mailing a strychnine-laced pie to his in-laws and a prior Texas conviction for possession of a firearm silencer. Miller confirmed these convictions.

On October 4, 1989, Shaw informed Miller that Huffhines had called the night before insisting that Shaw meet with him. Shaw had told Huffhines to call him at his office the next day. On that day, Miller accompanied Shaw to his office. During the afternoon, Huffhines was spotted in the lobby coffee shop in Shaw's office building. Miller was informed and went to the coffee shop.

According to Miller, as Huffhines was leaving the coffee shop, Miller walked up to him and identified himself as a police officer. Three other officers were in the lobby area, but none was in uniform or displayed any weapon, and no one touched Huffhines. Miller told Huffhines that he wanted to speak to him about a matter he was investigating. When he asked Huffhines his name, Huffhines said "Larry Connelly." Miller told Huffhines to come with him outside the building. Huffhines did so and as soon as he was outside, he was arrested for falsely identifying himself to a police officer in violation of California Penal Code § 148.9. He was searched and a set of car keys was found in his possession.

When he was interviewed by the police, Huffhines denied ownership of a Chevrolet Blazer. By this time, two officers had located a Blazer with New Mexico license plates a few blocks from Shaw's office. The keys found on Huffhines fit the door of this vehicle. The vehicle identification number (VIN) visible on the dashboard was the VIN of another vehicle.

A magistrate issued a warrant to search the Blazer. The search revealed that the VIN on the Blazer's dashboard was false. The Blazer had been stolen. Inside the Blazer the police found a key to room 211 of the Foghorn Harbor Inn Motel in Marina Del Rey.

The police went to this motel on the evening of October 5, 1989. The motel assistant manager, Ric Wilson, informed them that on October 3 room 211 had been rented to a person who gave his name as "Goode" and paid cash for two nights' rent. When the rental period expired at noon on October 5, Wilson had repossessed the room and locked the guest out.

Wilson gave the police permission to search the room. In the course of the search, the police looked beneath a mattress on one of the two beds in the room and found two plastic bags. One of these bags contained the gun which became the subject of Huffhines's indictment. His motion to suppress the evidence of the gun was denied. He was convicted following a jury trial.

The probation officer who prepared Huffhines's presentence report recommended that he be sentenced as a career offender under the Sentencing Guidelines. The district court agreed. It treated Huffhines's conviction of being a felon in possession of a firearm as a crime of violence. Huffhines was classified as a career offender on the basis that he had two prior felony convictions for crimes of violence. See Guidelines Manual, § 4B1.1 (Nov. 1990). He was sentenced to 120 months imprisonment and three years supervised release. 1 This appeal followed.

MOTION TO SUPPRESS EVIDENCE OF THE GUN

We accept a district court's findings of fact at a suppression hearing unless they are clearly erroneous. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir.1987). The lawfulness of searches and seizures usually presents mixed questions of law and fact, which we review de novo. United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989).

A. Huffhines's Arrest

The district court found that Huffhines falsely identified himself to the police prior to his arrest. This finding is not clearly erroneous. See United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.) (district court's factual findings on matters of credibility rarely overturned), cert. denied, --- U.S. ----, 111 S.Ct. 393, 112 L.Ed.2d 403 (1990).

Huffhines argues that even if he falsely identified himself to the police, the district court erred in ruling that this provided probable cause for his arrest under California Penal Code § 148.9, 2 because the police knew his real name. We reject this argument.

Section 148.9 applies even when the police are not deceived by the person giving a false identification. See People v. Hunt, 225 Cal.App.3d 498, 275 Cal.Rptr. 367, 370-71 (3d Dist.1990) (officer had probable cause to arrest vehicle passenger under section 148.9 for giving false name when officer received information from DMV indicating passenger was not who he purported to be).

Huffhines next contends that the officers' failure to release him after his arrest, pursuant to California Penal Code § 853.6, 3 shows his arrest was simply a pretext to enable the police to search for evidence of other crimes, and as such the evidence obtained by the search should have been suppressed. He relies on Taglavore v. United States, 291 F.2d 262 (9th Cir.1961).

In Taglavore, we held that the police had engaged in a "deliberate, pre-planned" scheme to evade the requirements of the fourth amendment by using a traffic arrest warrant to search the defendant. Id. at 267. Several factors indicated the arrest was pretextual. It was not ordinary procedure to take a person into custody for a minor traffic violation. Id. at 265. The warrant was acquired by an inspector in the vice squad who suspected the defendant of having connections with illegal narcotics activities of the defendant's employer. Id. The inspector kept the warrant until after the employer's arrest, late at night, when he gave it to two other officers with instructions to arrest the defendant, and a warning that he might have narcotics in his possession. Id.

In the present case, Huffhines was lawfully detained as part of the investigation of Shaw's complaint. 4 During this detention, Huffhines falsely represented himself as another person. A person under lawful detention who falsely represents or identifies himself or herself to a peace officer as another person is guilty of a misdemeanor. Cal.Penal Code § 148.9; Hunt, 275 Cal.Rptr. at 370-71. Thus, Miller was authorized to arrest Huffhines.

"Whether an arrest is a mere pretext to search turns on the motivation or primary purpose of the arresting officers." United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). There is no evidence that Miller's motive for confronting Huffhines was anything other than to investigate Shaw's complaint. The only similarity to Taglavore is that Miller failed to follow ordinary procedures by not releasing Huffhines pursuant to California Penal Code § 853.6.

We conclude the district court did not clearly err in determining Huffhines's arrest was not pretextual.

B. Search of the Vehicle

A person who voluntarily abandons property lacks standing to challenge its search. United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir.1986). The inquiry into abandonment "should focus on whether, through words, acts or other objective indications, a person has relinquished a reasonable expectation of privacy in the property at the time of the search." Id.

Evidence established that during his interview at the police station, Huffhines denied ownership or knowledge of the Blazer. He claimed that the keys found on him were keys to his Cadillac, which was parked in Dallas, Texas, and that he had been dropped off near Shaw's office building by a friend in a red Corvette. When asked why his keys fit the Blazer, Huffhines responded with a shrug of his shoulders.

The district court found that Huffhines disavowed any connection to the Chevrolet Blazer. This finding is not clearly erroneous. See id. (determination of abandonment reviewed for clear error). Having disavowed any connection to the Blazer, Huffhines may not challenge its search. Thus, we do not consider his argument that the warrant to search the Blazer was not supported by probable cause or that the search was otherwise invalid.

C. Search of the Motel Room

The police did not have a warrant to search the...

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