U.S. v. Morgan
| Decision Date | 19 August 1986 |
| Docket Number | No. 85-1319,85-1319 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald Newbren MORGAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Kennedy, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Robert M. Holley, Asst. Federal Public Defender, Sacramento, Cal., for defendant-appellant.
Appeal from the United States District Court for the Eastern District of California.
Before PREGERSON, POOLE, and NOONAN, Circuit Judges.
Donald Morgan appeals his conviction for unarmed robbery of a savings and loan in violation of 18 U.S.C. Sec. 2113(a). The district court denied Morgan's motion to suppress evidence obtained through a warrantless search prior to formal arrest. The district court concluded that the search was valid as incident to arrest because, before the search occurred, the police officer had probable cause to arrest Morgan. We affirm.
On June 6, 1985, a savings and loan in Marysville, California was robbed. The tellers at the savings and loan described the robber as a white male over six feet tall, wearing a plaid shirt, of medium build, with blue eyes, unkempt brown hair and beard, and with an odor of wine about his person. Based upon the robber's appearance and odor, the tellers concluded that the robber was a transient. Witnesses followed the robber to an area of Marysville known as the "river bottom," which serves as a hobo camp for transients. That evening, a cab driver reported to Marysville Police Officer Nason that he had heard the description of the robber on his scanner radio and had taken a passenger matching the robber's description from near the river bottom area to Veda's Motel in Yuba City. Nason communicated this information to Yuba City Police Sergeant Conklin and Police Officer Cotton, who both accompanied Nason to Veda's Motel. All three officers were in uniform and armed.
The motel manager confirmed that a person answering the robber's description had recently checked in, and gave Nason the suspect's room number. Cotton stationed himself behind the motel to cover the rear windows. Conklin and Nason then went to the suspect's room. Nason knocked on the door and Morgan answered. Nason explained to Morgan that they were investigating the savings and loan robbery and asked Morgan's permission to enter the room. Morgan unchained the door and allowed the officers into the room. Nason then asked whether he could look around the room and Morgan consented. While Nason briefly searched the room and the bathroom, Conklin remained inside the room between Morgan and the door. The district court found that, at this time, Morgan was not free to leave the motel room. The search yielded nothing of evidentiary value.
Conklin observed a bulge in Morgan's pocket, and, fearing that Morgan might be armed, 1 conducted a pat-down search. In conducting the pat-down, Conklin squeezed the bulge in Morgan's pocket to make sure it was not a weapon. Conklin asked Morgan what the bulge was, and Morgan replied that it was "my money." Conklin testified that he accepted Morgan's explanation that what he had felt was a roll of money and not a weapon. Conklin then reached into Morgan's pocket and pulled out a large roll of money with a $100 bill secured around the outside by a rubber band. Conklin asked Morgan how much money there was, and Morgan replied that there was around $1300. When asked where the money came from, Morgan stated that he had quit his job and had cashed a check at a bank in Santa Barbara. Nason asked Morgan whether he had been in Marysville that day and whether he had taken a cab from Marysville to the motel. Morgan answered "no" to both questions.
Nason then asked Morgan if he would accompany the officers to the Marysville Police Department for fingerprinting and photographing. Morgan asked if he was under arrest and Nason told him that he was not. Morgan replied that if he was not under arrest, he would prefer not to go to the Police Department. Nason then arranged for the cab driver to come to the motel. When the cab driver arrived, he identified Morgan as the man he had driven from Marysville earlier that day. At that point, Nason formally arrested Morgan.
Nason then requested Cotton to take Morgan down to the police car. By radio, Nason asked Cotton to "Mirandize" Morgan, and also indicated that there was still some money missing. Informed of his rights, Morgan told Cotton that he did not want to make a statement. Cotton then removed Morgan's wallet and found money that was later determined to be "bait" money from the robbery.
At trial, Morgan argued that there was no probable cause for his arrest, and moved to suppress the money obtained from the search of his pocket in the motel and all other incriminating evidence that followed the search and arrest. The district court denied Morgan's motion. Morgan entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11(a)(2), and was subsequently sentenced. Morgan timely appealed.
The district court's conclusion that Conklin had probable cause to arrest Morgan at the time of the warrantless search is a mixed question of law and fact which we review de novo. United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir.1985). However, we review only for clear error the factual findings on which the district court based its conclusion of probable cause. United States v. Merriweather, 777 F.2d 503, 505 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1497, 89 L.Ed.2d 898 (1986).
The fourth amendment generally requires that police officers obtain a search warrant before searching a suspect's person or property. Conklin did not have a warrant to search Morgan's person. To uphold the search, therefore, some exception to the warrant requirement must apply. United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986).
Before the district court, the government argued that Conklin's search of Morgan's pocket was either a consensual search or a valid pat-down sanctioned by Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). The district court rejected both asserted justifications and the government does not press either here on appeal. Rather, the government urges us to accept the district court's rationale that Conklin had probable cause to arrest Morgan before the search, and that Conklin seized the money pursuant to a valid search incident to arrest.
Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685 (1969), established that a police officer may conduct a warrantless, full search of a...
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