U.S. v. McClain

• Decision Date: 13 February 1976
• Docket Number: No. 75--1092,75--1092
• Citation: 531 F.2d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Lloyd McCLAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 431

531 F.2d 431

UNITED STATES of America, Plaintiff-Appellee, v. James Lloyd McCLAIN, Defendant-Appellant.

No. 75--1092.

United States Court of Appeals, Ninth Circuit.

Feb. 13, 1976.

Roger S. Hanson (argued), Santa Ana, Cal., for defendant-appellant.

Howard A. Allen, Asst. U.S. Atty. (argued), Terry J. Knoepp, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

OPINION

Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, ^* District Judge.

DUNIWAY, Circuit Judge.

McClain appeals from a judgment of conviction entered upon a jury's verdict that he is guilty of possession of just over a kilogram of cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). We affirm.

1. Facts

We state only such facts as are necessary to an understanding of the questions presented, and in doing so we consider the evidence in the light most favorable to the government, the jury having found in its favor.

In early June, 1974, Agent Geoffrey Green of the Drug Enforcement Administration, stationed at Las Vegas, Nevada, was taken by F.B.I. Agent Zimmerman to a mountain lodge northwest of Las Vegas called Mt. Charleston. There, Green was introduced to two men, the proprietors of the lodge, named Peterson and Cobb. Cobb told Green that a man whom he knew as 'James' was offering cocaine for sale in kilogram lots. Green told Cobb that when Cobb heard from 'James' again, Cobb should tell 'James' that he had a friend who would be interested in buying kilo quantities of cocaine. After again hearing from Cobb, Green arranged to have Cobb flown to San Diego on June 26. Later that day, Cobb telephoned Green, and Green then flew to San Diego. He telephoned Cobb at a hotel and then met him there. Cobb called 'James' and Green talked to him, arranging to meet him at the hotel lounge. The proposed transaction was a sale by 'James' to Green of a Kilogram of cocaine for $35,000. Cobb told Green that 'James' would probably be driving one of two cars which Cobb described in precise detail. 'James,' who turned out to be defendant McClain, arrived at about 11:30 p.m. After some negotiations over the price to be paid, McClain told Green that 'the coke' was nearby in his car, which was in the hotel parking lot. Cobb was sent out to see whether the cocaine was in the car, the Volkswagen previously described by Cobb to Green. Cobb reported that it was there and told where it was hidden. Green, Cobb, and McClain then left the building in which the meeting took place so that Green could show McClain the money. On a signal by Green, McClain was arrested by waiting officers. A small amount of cocaine was found on his person.

Immediately after the arrest, and at Green's direction, other officers searched McClain's car without a warrant and recovered the cocaine. It was hidden where McClain had said that it was.

McClain's defense was that Peterson and Cobb had it in for him because he had borrowed $1,000 from Cobb and not paid it back, and that they had coerced him into handling the cocaine for them. He said that in late May Peterson, Cobb and one Halling came to his cabin in Ramona near San Diego, and that Peterson had beaten him up, that the beating stopped only when he promised to do whatever he was told to do, and that he was in fear of his life.

Because Cobb's expenses in going to San Diego, or part of them, were paid by the government, the court submitted the issue of entrapment to the jury. It also submitted the issue of coercion. In partial response to these defenses, the court, over proper objection, permitted the government to present testimony by two witnesses that one Dusty Wooten, an acquaintance of McClain's, had said that McClain was a good outlet for cocaine.

McClain makes three legal arguments for reversal, which we consider separately.

2. Validity of the Search of McClain's Car

McClain argues that the search of his car violated his rights under the fourth amendment and that therefore the court erred in denying his motion to suppress the cocaine found in the car. We cannot agree.

There can be no question that Agent Green had probable cause for the search. McClain himself had told Green that the cocaine was in the car and where it was hidden in the car. Cobb had confirmed what McClain had said. Thus the only arguable question is whether the agents should have obtained a search warrant. In considering that question, we must attempt to reconcile the irreconcilable, the decisions of the Supreme Court in Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 and Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. We may not succeed in accomplishing the reconciliation, but we find Chambers and later cases that follow it applicable here.

In Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, the Court upheld a warrantless search of a car stopped on the open highway where the occupants were not arrested, on the grounds that the opportunity to search was fleeting. Had the car not been searched on the spot, the occupants could have driven it away before a warrant could be obtained. In Chambers, supra, the defendant bank robbers were fleeing in a car. The police stopped the car and, having probable cause, arrested the occupants. Instead of searching the car on the spot, the police took it to the police station and searched it there, without having obtained a warrant. The Court upheld the warrantless search. It reasoned that, under Carroll, supra, the police could have searched the car on the spot because otherwise, to prevent possible loss of the evidence, they would have had to impound the car while they obtained a warrant. It then concluded that impoundment was no less an intrusion than a search would have been, that either would be reasonable, and that it was not necessary for the police to obtain a warrant before searching the impounded car.

Our case differs in two respects. First, the car was not impounded; it was searched on the spot. This, we think, is immaterial under the Chambers rationale. Second, the defendant was not arrested while driving the car, nor on a public highway. He had parked it in a large hotel parking lot and left it there while he went to meet the informant and the undercover agent. This difference, too, we think to be immaterial. Here, as in Chambers, the car was in a public place late at night, accessible to anyone who might want to reach it. Here, as in Chambers, McClain could have had accomplices in the vicinity who might drive the car away while the agents were getting a warrant. Here, as in Chambers, the alternative to an immediate search that would assure the continued availability of the car and its contents was to impound it. Chambers makes it clear that the police need not adopt this alternative, but may search at once.

Were it not for Coolidge, supra, we would unhesitatingly follow Chambers in this case. In Coolidge, the police went to the suspect's home to arrest him. Having arrested him in the house, they also searched his car, which was sitting in his driveway. They had no warrant, but had cause on the basis of which they could have obtained one, both for Coolidge's arrest and for the search of his car. The Court held that the search violated the fourth amendment. It said, first, that Coolidge, being under arrest, had no way to get at the car. That is equally true of McClain in our case. Coolidge's wife was told by the police that she must leave the house and could not use the car, and the police took her to the home of a relative in another town. And the house was guarded throughout the night by two policemen. Finally, in a footnote, the Court made the following statement, which bothers us somewhat.

In this case, it is, of course, true that even though Coolidge was in jail, his wife was miles away in the company of two plainclothesmen, and the Coolidge property was under the guard of two other officers, the automobile was in a literal sense 'mobile.' A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility.

Fn. 18, 403 U.S. at 461, 91 S.Ct. at 2035. It strikes us that these are just the sort of possibilities that were held to justify the police action in Chambers. Be that as it may, we think that the ultimate Coolidge rationale is stated in the opinion (403 U.S. at 462, 91 S.Ct. at 2035) as follows:

And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States--no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where 'it is not practicable to secure a warrant,' Carroll, supra, at 153, 45 S.Ct., at 285, and the 'automobile exception,' despite its label, is simply irrelevant.

The case at bar differs in what we regard as crucial respects. Here the car, while not on 'an open highway,' was in a public place, readily accessible to anyone who might want access. Here there was contraband, valued by McClain at $35,000. Here, especially because of the value of the contraband, there could well have been confederates waiting to move the evidence. Moreover, Cobb had told Agent Green 'that there might be other people in the area.' In addition, the arrest occurred in the middle of the night and the officers did not know, until not more than half an hour before, which car would be used or whether contraband would be in it. Obtaining a warrant in advance would hardly have been possible. Here there would have been the inconvenience of a special police detail to guard the immobilized automobile, or the alternative used in Chambers, impoundment.

But for the subsequent cases we...