U.S. v. Jamerson

• Decision Date: 19 January 1977
• Docket Number: No. 76-1121,76-1121
• Citation: 549 F.2d 1263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee JAMERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1263

549 F.2d 1263

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee JAMERSON, Defendant-Appellant.

No. 76-1121.

United States Court of Appeals, Ninth Circuit.

Jan. 19, 1977.

Rehearing Denied April 1, 1977.

Alphus R. Christensen, Spokane, Wash., for defendant-appellant.

Dean C. Smith, U. S. Atty., Spokane, Wash., for plaintiff-appellee.

Before ELY and CHOY, Circuit Judges, and ORRICK, ^* District Judge.

ORRICK, District Judge:

Robert Lee Jamerson appeals from his conviction, after a jury trial, on a charge of knowing transportation of a stolen vehicle in interstate commerce in violation of the Dyer Act, 18 U.S.C. § 2312. The appeal raises two major issues: first, whether it was error for the trial court to refuse to instruct the jury to disregard the prosecution's reference in closing argument to certain hearsay evidence introduced during the trial and, second, whether the court improperly denied a motion to suppress physical evidence discovered during the course of an allegedly improper search. We reject both appellant's contention concerning the impropriety of referring to the hearsay testimony in closing argument and his contention that the admission into evidence of the material uncovered during a warrantless entry of the stolen vehicle violated the appellant's Fourth Amendment rights. Accordingly, for the reasons hereinafter stated, we AFFIRM.

I.

In the early morning hours of September 17, 1975, appellant was observed by a Washington State Wildlife Agent sleeping in a van parked near Highway 21 in Ferry County, Washington. A check of the vehicle's license plate number, conducted by the agent and by the deputies of the Ferry County Sheriff's Department who were summoned to the scene, revealed that the number belonged to a vehicle which had been reported stolen. On the basis of this information, obtained from the National Crime Information Center, the appellant was awakened and arrested on a charge of possession of a stolen vehicle. Immediately thereafter, at the scene of the arrest, the arresting officers performed an inventory of the contents of the vehicle. The purpose of the inventory was to make a record of the vehicle's contents in order to protect the police department in the event of a claim regarding lost or stolen items. ¹

Some hours later, in the afternoon of the same day, the sheriff's department received a call from the van's owner requesting its release. After consultation with an agent of the Federal Bureau of Investigation, which had assumed responsibility for the case, it was agreed that the van would be released to its owner after removal of all the property within the van. A deputy then entered the vehicle to remove the inventoried contents. At that time he noticed a piece of newspaper sticking out from under a mat behind the driver's seat. He removed the mat and discovered, wrapped up in the paper, two stolen Canadian license plates and several pieces of Canadian identification. The license plates and the identification were subsequently introduced into evidence against appellant over his objection that these items had been seized illegally in violation of his Fourth Amendment rights.

At trial, during cross-examination of one of the arresting officers, defense counsel asked the officer if he had made any effort to locate persons other than the defendant who might have had a connection with the stolen vehicle. This line of questioning was pursued on the defense theory that someone other than the defendant had actually driven the van but had abandoned the vehicle and hitchhiked away. This questioning elicited hearsay testimony from the officer to the effect that the defendant had been seen alone in the van on the evening in question by border guards at the Canadian border and had been refused entry into Canada. ² No objection was made to this hearsay testimony at the time.

On redirect examination of the same witness, the government referred to the attempted border crossing and sought to question the witness further about the incident. Defense counsel objected on the grounds that the evidence was inadmissible hearsay and the objection was sustained. ³ During closing argument the prosecution again made reference to the appellant's alleged attempt to cross the border. ⁴ At the close of the prosecution's argument, defense counsel objected to the mention of the border crossing incident and moved to strike it from the record. The motion was denied.

II.

We first consider appellant's contention that prejudicial error occurred when the government was permitted to refer to the border crossing incident in closing argument since his hearsay testimony was not properly in the record. We find no error in this regard.

No objection was made to the arresting officer's hearsay statements about the defendant's attempted border crossing at the time this testimony was elicited. When appellant's counsel did object during the government's redirect of the same witness, it was apparently to block any further exploration of this subject by the prosecuting attorney. Appellant made no mention to strike the testimony already in the record.

It is a fundamental rule of evidence that an objection not timely made is waived. Fed.R.Evid. 103(a)(1); 1 J. Wigmore, Evidence § 18 (3d ed. 1940). If testimony, even though improper, is introduced into evidence without objection, it becomes part of the record and is available to be considered for its probative value by the trier of fact. United States v. Carney, 468 F.2d 354, 357 (8th Cir. 1972). No objection having been made to the evidence when given and no motion to strike having been made, it was properly before the jury. See Anthony v. United States, 256 F.2d 50, 53-54 (9th Cir. 1958); Desimone v. United States, 227 F.2d 864 (9th Cir. 1955). Therefore, it was not error for the prosecutor to refer to this incident in his closing argument. Nor do the prosecutor's incidental references to insignificant matters not in the record require reversal. Cf. United States v. Bell, 165 U.S.App.D.C. 146, 506 F.2d 207, 225-226 (1974).

III.

We now turn to the question of whether it was prejudicial error for the trial court to deny appellant's motion to suppress the Canadian license plates and identification found in the van after the vehicle was impounded. As noted earlier, the discovery of these items occurred when an officer entered the vehicle to remove the inventoried contents, not during the course of a search for evidence of the crime charged.

A.

At the outset, we must consider whether the appellant has standing to object to the seizure and introduction of this evidence. The government urges that appellant is not "(a) person aggrieved by an unlawful search" within the meaning of Rule 41(e) of the Federal Rules of Criminal Procedure, and thus may not object to use of these items at trial. ⁵ We disagree.

In order to qualify as a "person aggrieved" who has standing to raise Fourth Amendment claims:

"* * * one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else." Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).

To establish standing, a movant must generally claim that he was on the premises at the time of the contested search, that he has a possessory or proprietary interest in the premises, or that he owned or possessed the seized property. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 392, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Moreover, the Supreme Court has enunciated a rule of "automatic" standing in situations where the movant is charged with an offense that includes as an essential element the possession of the seized evidence at the time of the contested search. Jones v. United States, supra, 362 U.S. at 263-264, 80 S.Ct. 725; see also Brown v. United States, supra.

In Jones, the defendant was convicted of violations of the narcotics laws which could be established through proof solely of possession of narcotics. Narcotics were introduced at trial which had been found during a search of an apartment defendant had been occupying with the permission of a friend. The Supreme Court rendered alternative holdings to the effect that Jones had standing to contest the validity of the search of the apartment.

First, the Court adopted the automatic rule that, where possession both convicts and confers standing, the movant need not make a preliminary showing of an interest in the premises searched or the property seized. This rule was prompted in part by the unfairness of prosecutorial self-contradiction. The Court refused to condone the vice of allowing the government to allege possession as part of the crime charged, and yet deny that there was possession for standing purposes. The rule also relieved a defendant of the predicament of coerced self-incrimination since he would no longer have to admit to possession of the contraband in order to contest the validity of its seizure. ⁶ Jones v. United States, supra, 362 U.S. at 262-264, 80 S.Ct. 725.

Second, the Court in Jones held that the defendant's presence at the apartment at the time of the search conferred upon him a sufficient proprietary interest to establish standing.

The issue of whether a defendant charged with a violation of the Dyer Act may claim the benefit of the automatic standing rule has not been decided by this Circuit. However, appellant cites authorities from other circuits which we find persuasive. Simpson v. United States, 346 F.2d 291 (10th Cir. 1965); Glisson v. United States, 406 F.2d 423 (5th Cir. 1969).

In Simpson, defendant was in possession of a stolen vehicle. When initially questioned about the car, he insisted that it was his. After his arrest, the car was impounded and...