U.S. v. Johnson, 92-8179
| Decision Date | 28 February 1994 |
| Docket Number | No. 92-8179,92-8179 |
| Citation | 16 F.3d 69 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Skirvin George JOHNSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Skirvin George Johnson, pro se.
Adrienne Urrutia, Lucien B. Campbell, Federal Public Defender, San Antonio, TX, for defendant-appellant.
Diane D. Kirstein, Richard L. Durbin, Jr., Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court For the Western District of Texas.
Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.
Skirvin George Johnson appeals his convictions for theft from a federally funded program, 18 U.S.C. Sec. 666, and money laundering, 18 U.S.C. Sec. 1956(a)(1)(A)(i). For the reasons assigned we vacate and remand for a new trial.
From October 1984 to June 1988 Johnson was employed by the City of Phoenix as a loan officer in the Community Development Department which typically funded block grants from HUD to minority businesses. In July 1988 Johnson went to work for the City of Austin as Deputy Director of the Planning and Economic Development Department, acting as a servicing officer in loan and grant programs operated primarily with funds provided by HUD. During Johnson's tenure with the City of Phoenix he made four suspicious loans which, upon investigation, served as the basis for an Arizona indictment and issuance of an Arizona arrest warrant. While working for the City of Austin it appeared that Johnson authorized another suspicious loan to Hillary Richard Wright Industries, Inc. (HRW). It was alleged that money from that loan was used to pay off some of the suspicious Phoenix loans. The convictions which are the subject of this appeal pertain to alleged misappropriations while Johnson was working for the City of Austin.
On May 16, 1990, Phoenix police officer Ron Sterrett, accompanied by two Austin police officers and an Austin detective sergeant, executed an Arizona arrest warrant on Johnson at his place of employment with the City of Austin. Johnson was alone when Officer Sterrett walked in and informed him that he was under arrest based upon charges of fraudulent conduct related to his employment with the City of Phoenix. Johnson was told to sit down at his desk but got up two or three times. Officer Sterrett testified on direct examination at the suppression hearing that "After that situation was resolved and Mr. Johnson stayed in his chair, we conducted a cursory search in the office and obtained some evidence."
The office was approximately ten feet by twelve feet and contained Johnson's work desk, a smaller desk, a computer terminal, filing cabinets, and two chairs located near the office door. Officer Sterrett noticed papers on top of Johnson's desk and Johnson's briefcase on top of one of the chairs located approximately eight feet from where Johnson was sitting. He also saw a checkbook cover in the briefcase but could not tell if it related to the Phoenix case without removing it from the briefcase. He seized checks, bank account registers, business cards, wallets, an empty envelope, and other documents found in the briefcase. No weapons were found. The officer candidly testified that he looked through the briefcase because he thought he would find evidence relating to the Phoenix charges. Thereafter he searched the top of Johnson's desk, seizing an Austin memorandum which contained Johnson's handwriting sample, and then methodically searched the filing cabinets and a coat hanging on a coat rack.
Johnson's arrest and the search of his office lasted between 20 and 30 minutes. Johnson was not handcuffed while in his office nor was his clothing or body searched for weapons. At least one police officer remained behind Johnson while Officer Sterrett searched his office and briefcase, and the four officers remained in the office, watching Johnson, during the entire period. Officer Sterrett candidly acknowledged that he did not have probable cause to search Johnson or his office and that he had no reason to believe that Johnson would resist arrest, have a weapon, or try to destroy evidence. Officer Sterrett stated that searching the briefcase and other areas of the office was just "good police work."
Johnson was transported to the Austin Police Department where Officer Sterrett advised him of his Miranda 1 rights. Although Johnson claimed he requested an attorney, Officer Sterrett contends that Johnson's request for counsel was limited to a desire to discuss his immigration status. Thereafter Officer Sterrett interrogated Johnson and elicited responses pertaining to the Phoenix charges.
When the City Auditor became aware of Johnson's arrest she assigned Larry Anderson to investigate the Austin loan files to determine whether Johnson had misappropriated any Austin funds. On the day of the arrest Anderson and his superior surveyed Johnson's office to determine the number of auditors needed to inspect the files. Anderson and several auditors returned the next day and found seven computer disks, including one marked "HRW," inside a folder near Johnson's computer. Anderson made a printout of the disc and discovered incriminating letters from Johnson about some Phoenix loans and HRW's articles of incorporation. Anderson testified that when he entered Johnson's office he was not acting on behalf of the police or any other law enforcement agency but, rather, was acting upon direction from the City Auditor.
Johnson was charged in a three-count indictment with theft from a federally funded program in violation of 18 U.S.C. Sec. 666 and two counts of money laundering in violation of 18 U.S.C. Sec. 1956(a)(1)(A)(i), and was convicted. The district court imposed three concurrent 60-month terms of imprisonment, 3 years supervised release, a $143,499 fine, restitution in the amount of $190,998.11 plus interest, and $150 special assessment. Johnson timely appealed.
Johnson raises seven points on appeal, three of which involve the denial of his motion to suppress evidence. On appeal from the denial of a motion to suppress we review the district court's factual findings under the clearly erroneous standard and its conclusions of law de novo. 2 Johnson first maintains that the district court erred in denying his motion to suppress evidence seized during the search of his Austin office. Specifically, Johnson claims that the search of his briefcase and desk exceeded the scope of a search incident to arrest. As the district court correctly noted, Chimel v. California 3 is the controlling authority. We disagree, however, with the district court's application of the Chimel teachings.
In Chimel, the Supreme Court held that a search incident to an arrest is a reasonable search permitted by the fourth amendment, even if the police do not have a search warrant. 4 In a search incident to arrest, the police may search the arrestee's person and "the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." 5 Johnson was approximately eight feet away from his briefcase, sitting in his chair with at least one police officer standing behind him and three other officers in the room. The testimony by Officer Sterrett makes clear that he did not think that Johnson might gain possession of a weapon or destroy any evidence in the briefcase. Johnson was not handcuffed. 6 Although the record indicates that Johnson stood up two or three times, Officer Sterrett never felt threatened or believed that Johnson was about to destroy evidence; Officer Sterrett was concerned only with having Johnson sit down so that he could proceed with his search of the office. More importantly, at the time of both the arrest and search, the briefcase was not within Johnson's area of immediate control.
An illuminating statement was made by Officer Sterrett in response to defense counsel's question about his search of the briefcase. Officer Sterrett responded, "When I found a checkbook in there and opened it up, I believed that there could be other evidence in the briefcase." Officer Sterrett was in search of relevant evidence. The fourth amendment did not enter into the equation. He conducted precisely the type of generalized, warrantless search prohibited by Chimel. The Supreme Court there stated:
After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home. 7
The same rationale applies to an office search. Such a callous disregard for the fourth amendment cannot be countenanced.
As the Supreme Court acknowledged in Chimel, "[t]he search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him." 8 Indeed, the search conducted by Officer Sterrett was never purported to be a search incident to arrest. To the very contrary, Officer Sterrett directly refuted those purposes. 9 Officer Sterrett never searched Johnson's person, nor did he search the area within Johnson's immediate control. Instead, Officer Sterrett proceeded to conduct a search of the office for relevant evidence relating to the Phoenix charges. Contrary to Officer Sterrett's stated observation, this was not "good police work" but, rather, was a search in blatant contravention of the fourth amendment. 10
We decline the government's request to extend New York v. Belton 11 to office searches....
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