U.S. v. Karlin

• Decision Date: 14 September 1988
• Docket Number: No. 86-2697,86-2697
• Citation: 852 F.2d 968
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles A. KARLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 968

852 F.2d 968

UNITED STATES of America, Plaintiff-Appellee, v. Charles A. KARLIN, Defendant-Appellant.

No. 86-2697.

United States Court of Appeals Seventh Circuit.

Argued April 15, 1987.

Decided July 20, 1988.

Rehearing and Rehearing En Banc Denied Sept. 14, 1988.

William S. Mautner, Atinsky, Kahn, Sicula & Teper, Milwaukee, Wis., for defendant-appellant.

Francis D. Schmitz, Asst. U.S. Atty., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before WOOD, Jr. and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Appellant Karlin was convicted of one count of engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. Sec. 922(a)(1) and one count of possessing a firearm while a convicted felon in violation of 18 U.S.C.App. Sec. 1202(a)(1) (repealed 1986). ¹ Karlin appeals from the judgment of conviction and sentence and raises numerous challenges, all of which we reject.

FACTS

Karlin was indicted June 3, 1986 on one count of being engaged in the business of dealing in firearms without a license and six counts of being a felon and knowingly possessing a firearm in or affecting commerce, with each of the latter six counts alleging possession of a separate firearm. The activities alleged in Count 1 occurred between November 8, 1984 and November 11, 1985. The first count stemmed from Karlin's activities with Donald Chaon, a gun collector. The next five counts, of which he was acquitted, charged Karlin with possessing firearms he sold to Chaon. The seventh count charged Karlin with possessing a firearm on December 19, 1985. This weapon was found under the driver's seat of Karlin's vehicle immediately following his arrest on suspicion of burglary.

The evidence showed that Karlin sold about fifteen firearms to Chaon. Chaon paid cash or traded other items, such as collectible coins, for the firearms. During this time period Karlin attempted to sell other firearms to Chaon, who declined purchase for various reasons, including high price. Chaon collected various items and considered Karlin his "picker"--a person who scouts for collectible items and sells them to a collector. Chaon in turn occasionally sold or traded firearms to other collectors. The guns were all manufactured outside the state of Wisconsin, and were sold by Karlin in Wisconsin.

In December, 1985, a West Bend police officer received reports of a burglary suspect being chased by citizens. The officer arrived at a parking lot and found two citizens standing over Karlin, who was lying face down on the ground with his foot inside the open driver's door of a van. The citizens indicated that Karlin was the man they had chased and that one of them had removed him from the car. The officer arrested Karlin, handcuffed him, removed identification, brought him to his feet, patted him down, and placed him in the rear of the squad car. The officer then searched the van and found a .38 caliber revolver inside a stocking cap under the driver's seat. The gun formed the basis for Count 7, of which Karlin was convicted. ²

I. SEIZURE OF THE COUNT 7 WEAPON

Karlin argues that the weapon found in the vehicle should have been suppressed because the search that produced it violated the Fourth Amendment. He contends that the search was not incident to arrest, as found by the district court.

In Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685 (1969), the Supreme Court held that when a lawful arrest is made, the police may, as an incident to arrest and without a warrant, search the person of the arrestee and any area into which he might reach in order to grab a weapon or evidentiary items. The Court found invalid a search of the arrestee's entire house. 395 U.S. at 763, 768, 89 S.Ct. at 2043.

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Court considered the application of Chimel doctrine to a search of the passenger compartment of an automobile after arrest of an occupant. The Court of Appeals of New York had held that when the search was made there was no longer any danger that the arrestee or a confederate might gain access to the article seized. The Supreme Court reversed, and upheld the search.

The Court noted the difficulty experienced by courts in deciding the proper scope of a search of an automobile incident to a lawful custodial arrest of its occupants. The Court also remarked upon the desirability of a rule under which police could in most instances reach a correct determination beforehand, and the undesirability of litigation in every case over the existence of supporting reasons. The Court held

that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile ... [and] may also examine the contents of any containers found within the passenger compartment....

453 U.S. at 460, 101 S.Ct. at 2864 (footnotes omitted). Karlin argues, relying on Chimel, that by the time the search occurred, the driver's seat was no longer an area into which he could have reached. He was in a squad car, an undisclosed distance from the van, and handcuffed.

Karlin seeks to distinguish Belton on the ground that the arrestees in that case appear to have been made less secure than he, and were somewhat closer to their car. If those differences in degree are to control the Court's preference for a straightforward rule for guidance of police officers and avoidance of hindsight determinations in litigation would be frustrated. It seems quite likely that, in instances where occupants of a car are arrested, they will be outside the car and will have been placed under some measure of security before the car is searched.

Karlin's contention would require a factual determination in each instance of how thoroughly the arrestee had been secured and his distance from the vehicle. It is significant that in Belton, the New York Court had determined, as Karlin proposes here, that by the time of the search there was no longer any danger that the arrestee or a confederate might gain access to the article.

In United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985), the Tenth Circuit relied on Belton in rejecting an appellant's argument, similar to Karlin's, "that, standing outside the Camaro, handcuffed, he would have been physically unable to reach into the car to dispose of the blue bag or to pull a weapon from it." The Court explained,

[t]he Supreme Court expresses quite clearly in Belton its goal to formulate a workable rule whereby an officer in the field may be able to evaluate the circumstances surrounding a lawful arrest to determine whether seizure of items in the immediate area of the arrestee is called for.... The rule ... does not require the arresting officer to undergo a detailed analysis, at the time of arrest, of whether the arrestee, handcuffed or not, could reach into the car to seize some item within it, either as a weapon or to destroy evidence, or for some altogether different reason. The facts surrounding each arrest are unique, and it is not by any means inconceivable under those various possibilities that an arrestee could gain control of some item within the automobile. The law simply does not require the arresting officer to mentally sift through all these possibilities during an arrest, before deciding whether he may lawfully search within the vehicle.

751 F.2d at 1148.

The Eighth Circuit relied on Belton in upholding a search of an automobile which took place immediately after an occupant had been arrested and placed in the police car. United States v. McCrady, 774 F.2d 868, 870-71 (8th Cir.1985).

In United States v. Fleming, 677 F.2d 602 (7th Cir.1982), this court discussed Belton in rejecting a similar argument in a slightly different context. Two men dropped paper bags just before being arrested. Police officers picked up the bags unopened while they were within the grabbing area of the arrestees. At least one of the bags was not opened for five minutes, after the arrestee who had possessed it had been disarmed, taken to the street and handcuffed, and was standing next to a police officer. This court rejected the argument "that because the danger addressed by a Chimel search had dissipated, so had any justification for opening the bags without a search warrant." 677 F.2d at 606. After noting that the bags when first picked up had been within the grabbing area, the court said,

Only after we have engaged in the same ex ante calculations that the police themselves faced should we consider whether subsequent events made a Chimel search unreasonable. At this second level of inquiry it does not make sense to prescribe a constitutional test that is entirely at odds with safe and sensible police procedures. Thus handcuffing Rolenc and having reinforcements enter Fleming's house should not be determinative, unless we intend to use the Fourth Amendment to impose on police a requirement that the search be absolutely contemporaneous with the arrest, no matter what the peril to themselves or to bystanders.

677 F.2d at 607. ³

It seems clear here that the arresting officer followed reasonable procedure in securing custody of Karlin, and then proceeding with a search of the passenger compartment of the van into which Karlin might have reached at the time of arrest. We think, under Belton, such a search is deemed reasonable, without determining whether the officer had rendered Karlin incapable of reaching into the van.

II. ALLEGED ERROR IN PROVING ONLY ONE OF THE PRIOR CONVICTIONS BEFORE THE JURY

The indictment charged in the possession counts, including Count 7, that Karlin had three felony convictions for burglary. The three enumerated were an April 4, 1966 conviction in Manitowoc County, an October 11, 1968 conviction in Manitowoc County, and an August 1,...