U.S. v. McCrady

• Decision Date: 01 October 1985
• Docket Number: No. 84-5244,84-5244
• Parties: 19 Fed. R. Evid. Serv. 845 UNITED STATES of America, Appellee, v. Sheri Lee McCRADY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 868

774 F.2d 868

19 Fed. R. Evid. Serv. 845

UNITED STATES of America, Appellee, v. Sheri Lee McCRADY, Appellant.

No. 84-5244.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1985.

Decided Oct. 1, 1985.

Cecilia M. Michel, Minneapolis, Minn., for appellant.

Franklin L. Noel, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Sheri Lee McCrady appeals from a final judgment entered in the District Court ¹ for the District of Minnesota upon a jury verdict finding her guilty of one count of aiding and abetting the possession of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1982). The district court sentenced appellant to two years imprisonment but stayed the execution of the sentence and placed appellant on probation following a six-month jail term. For reversal appellant argues that the district court erred in (1) admitting evidence seized during a warrantless search of the glove compartment of an automobile following the arrest of her fiance, Andrew Paul Schott, Jr., (2) admitting the testimony of an assistant United States attorney, and (3) denying her motion for acquittal. For the reasons discussed below, we affirm the judgment of the district court.

Appellant and Schott had lived together off and on for about five years. On July 26, 1984, appellant and Schott were in a parked car in the Ridgedale Shopping Center in Minnetonka, Minnesota. At about 6:30 p.m. a citizen reported, via the 911 emergency number, that a man was assaulting a woman in a red Mercedes Benz on the east side of the street. The citizen reported that the man hit the woman several times. Within minutes Minnetonka police officers Timothy Mulcrone and Arlan Holland responded separately to the dispatch. Mulcrone asked Schott for identification and then observed that appellant was crying and had bruises on her face and a cut on the bridge of her nose. At that point Mulcrone and Holland arrested Schott for domestic abuse under the provisions of the Minnesota Domestic Abuse Act, Minn.Stat. Sec. 629.341 (1981).

As Holland performed a patdown search of Schott, he discovered a small vial of white powder in Schott's trouser pocket. It was later determined that the vial contained one gram of cocaine. Schott was at that point advised that he was also under arrest for possession of cocaine and was placed in the police car.

Holland then asked Schott if he wanted appellant to take possession of his automobile. Holland testified that before surrendering the vehicle to appellant, he decided to search the vehicle for evidence of either the assault or possession of cocaine. As Holland began his search, he noticed that the glove compartment, which had been unlocked when Schott removed his vehicle registration papers from it, was locked. The glove compartment was the type which did not automatically lock upon closing but had to be locked with a key. Holland took the keys from the ignition and asked appellant to unlock the glove compartment and she did. The government concedes that Holland did not seek Schott's or appellant's consent to search the glove compartment.

Inside the glove compartment Holland observed a brown expanding business folder which had a white addressed envelope taped to its front. In response to a question, appellant indicated that the envelope contained business papers belonging to Schott. Holland testified that the hard irregularly shaped contents were inconsistent with appellant's description. Consequently, he opened the envelope and found a tube of white powder wrapped in 23 sheets of yellow ruled legal paper and a package of white powder wrapped in foil and inserted in a cassette case. The powder was later determined to be cocaine cut with mannitol. At that point Holland placed appellant under arrest for possession of cocaine.

The officers subsequently secured a warrant and searched the apartment occupied by appellant and Schott. They found one pound of cocaine inside a locked briefcase underneath a double air mattress, the only bed in the apartment. Next to the pound of cocaine was a bag which contained a smaller quantity of cocaine cut with mannitol. A gram scale containing traces of cocaine and mannitol was found on the floor between the bed and the bedroom door. In close proximity to the gram scale on the floor were two address books belonging to appellant. In the bedroom closet were two heat sealers and sealer bags, which are often used by narcotics dealers for packaging their products. Additional narcotics-related paraphernalia were found in the living-dining area, including two straining kits, a triple beam scale, smaller gram scales, a quantity of small vials, cut drinking straws, and roach clips (marijuana cigarette holders). In a sheaf of bills, receipts and used airlines tickets, the officers found a bound notepad with 12 pages entitled "The Latest Flash." Appellant's fingerprints were found on two of the sheets which discussed cocaine use. Appellant had written the 12 pages and contained therein were admissions that appellant had sold cocaine earlier that year to a friend that she had lied to Schott about using some cocaine and that she had surreptitiously taken some high purity cocaine from bags and replaced it with a lower grade.

Appellant and Schott were indicted for possession of cocaine with the intent to distribute. Schott pleaded guilty prior to trial. Following a jury trial, appellant was found guilty of the charge. This appeal only involves appellant.

Appellant initially argues that the warrantless search of the glove compartment following Schott's arrest and prior to her arrest was invalid because it did not come within the limited exceptions to the fourth amendment warrant requirement. Appellant further argues that Officer Holland did not request or secure consent for the search of the car which was in her control and custody at the time of the search. Appellant argues that the government's reliance on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (Belton ), is misplaced. Belton is inapplicable to this case because appellant was not under arrest at the time of the search and Schott had already been arrested and transported from the scene earlier. Lastly, appellant argues that the search of the apartment pursuant to the search warrant was also invalid because it was the fruit of the illegal search of the car.

The government argues that the search of the glove compartment and the envelope within it falls squarely within the Belton "bright line" rule. The government argues that the Supreme Court held in Belton that a search of an automobile is valid even though the arrestee is in custody.

The district court found that Officer Holland searched the car after arresting Schott for possession of drugs and prior to surrendering the automobile to appellant. The district court also held that although Schott had been removed from the scene, the search was incidental to and contemporaneous with his arrest.

In Belton the police officer had "directed the men to get out of the car, and placed them under arrest ... patted down each of the men and split them up into separate areas of the Thruway ... so they would not be in physical touching area of each other." Id. at 456, 101 S.Ct. at 2862. The officer then picked up an envelope marked "super gold" and found that it contained marijuana. The officer then searched the passenger compartment of the car and found a black leather jacket on the back seat. He unzipped one of the pockets of the jacket and discovered cocaine. The Supreme Court reversed the New York Court of Appeals which had held that "the warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article." People v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 575, 407 N.E.2d 420, 421 (1980). The Supreme Court held that when a "[police officer] 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.... [T]he police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee so also will containers in it be within his reach." 453 U.S. at 460, 101 S.Ct. at 2864. The Court further noted that

"container" here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.

Id. at 460 n. 4, 101 S.Ct. at 2864 n. 4 (emphasis added).

In the present case the police conducted a search of the passenger compartment, including the glove compartment and an envelope found in the glove compartment immediately after Schott was arrested. This search is similar to the search in Belton and comes within the "bright line" rule of Belton. United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985); United States v. Collins, 668 F.2d 819, 821 (5th Cir.1982). We hold that the district court correctly determined that the search of the car including the locked glove compartment was incident to an arrest. We further hold that the search of the apartment pursuant to a search warrant was not tainted by a prior illegal search and was therefore valid.

Appellant next argues that the district court erred in admitting the testimony of assistant United States attorney Jon Hopman. Before trial Hopman sat in on an interview of Mary Regnier, the...