U.S. v. Nelson

• Decision Date: 18 December 1996
• Docket Number: No. 95-5536,95-5536
• Citation: 102 F.3d 1344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Kevin NELSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1344

102 F.3d 1344

UNITED STATES of America, Plaintiff-Appellee, v. James Kevin NELSON, Defendant-Appellant.

No. 95-5536.

United States Court of Appeals Fourth Circuit.

Argued Sept. 24, 1996.

Decided Dec. 18, 1996.

ARGUED: Larry Allen Nathans, Baltimore, Maryland, for Appellant. Jan Paul Miller, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

In connection with his cocaine conspiracy conviction, James Kevin Nelson contends that the district court erred (1) in refusing to suppress $43,000 seized from his shoulder bag when he was arrested, (2) in failing at any time during his four-day trial to instruct jurors to refrain from discussing the case with others, and (3) in replacing two jurors who had holiday travel plans beginning on what would have been the fifth day of trial. While we find that the district court erred in failing to instruct jurors to refrain from discussing the case, the error in the circumstances of this case does not require us to order a new trial, and we find no merit in the other assignments of error. We therefore affirm.

I

After his arrest, Omar Grajales, who was a cocaine supplier to the defendant Nelson, agreed to cooperate with agents of the Drug Enforcement Administration (DEA). With Grajales' cooperation, DEA agents arrested Nelson when Nelson came to Grajales' apartment to pick up two kilograms of cocaine. At the time of his arrest, Nelson was carrying a black shoulder bag.

While Nelson stood with his hands on his head, DEA agents attempted to check the bag. But because Nelson's hands were on his head, they could not remove the bag which was slung over his shoulder. Unzipping the bag, the agents noticed that it contained money. At that point, the agents lowered Nelson's hands, removed the bag from his shoulder, and took Nelson to an upstairs room for questioning. Within minutes, a DEA agent searched the bag and found $43,000, the approximate street price of two kilograms of cocaine and $1,000 less than the amount which Nelson had earlier agreed to pay Grajales.

After being advised of his Miranda rights, Nelson confessed to the agents that he had come to Grajales' apartment to purchase two kilograms of cocaine and that he had purchased a kilogram approximately every two to three weeks over the previous year, which he then divided into one-ounce bags to sell or "front" to his customers.

Nelson filed a pretrial motion to suppress the $43,000 which was seized from his shoulder bag. After a hearing, the district court denied the motion and allowed the government at trial to introduce evidence of the $43,000 seizure. Nelson now contends that the district court's ruling violated his Fourth Amendment rights, arguing that the DEA agents did not have a warrant to conduct the search and, because the DEA agents separated Nelson from his bag and did not search it immediately, the search was not "incident to arrest."

To protect the safety of arresting officers and to avoid the destruction of evidence, the Supreme Court has long recognized an exception to the Fourth Amendment warrant requirement for searches incident to arrest. See United States v. Edwards, 415 U.S. 800, 807-09, 94 S.Ct. 1234, 1239-40, 39 L.Ed.2d 771 (1974). Although the "incident to arrest" justification for warrantless searches does not permit an indefinite delay in a search, see United States v. Chadwick, 433 U.S. 1, 14-15, 97 S.Ct. 2476, 2485-86, 53 L.Ed.2d 538 (1977) (holding that a search more than one hour after arrest and at a police station was not within the exception), the justification does last for a reasonable time after the officers obtain exclusive control of the container that is to be searched, see Edwards, 415 U.S. at 805, 807-09, 94 S.Ct. at 1238, 1239-40 (upholding a ten-hour delay in search and seizure of clothing where overnight delay was necessary to purchase replacement clothing for incarcerated defendant); New York v. Belton, 453 U.S. 454, 462-63, 101 S.Ct. 2860, 2865-66, 69 L.Ed.2d 768 (1981) (approving admission of cocaine found in a jacket in the back seat of a car even though officers had removed the suspect from the car before searching the jacket). Indeed, in a case remarkably similar to that before us, we held specifically that "when a container is within the immediate control of a suspect at the beginning of an encounter with law enforcement officers," the officers can search the container incident to an arrest if (1) the search is conducted at the scene of the arrest and (2) any delay in the search is a "reasonable" one. United States v. Han, 74 F.3d 537, 543 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1890, 135 L.Ed.2d 184 (1996); see also United States v. Litman, 739 F.2d 137, 139 (4th Cir.1984) (en banc) (upholding search of a bag immediately after arrest when the bag was no longer under the suspect's control).

Nelson contends that in this case the incident-to-arrest exception does not apply because the risks of danger and destruction of evidence had passed. He argues:

The search of the bag was not contemporaneous with Mr. Nelson's arrest, was not conducted when Mr. Nelson was within the same part of the house as the search, was not searched within the same room in which it was seized and was performed when Mr. Nelson was already handcuffed.

While the need for the incident-to-arrest exception is indeed grounded on the need to protect law enforcement officers and evidence, the validity of such a search does not end at the instant the risks justifying the search come to an end. Even though the warrant exception is well grounded on the existence of exigent risks attending arrest, the pragmatic necessity of not invalidating such a search the instant the risks pass is well accepted. See, e.g., Belton, 453 U.S. at 462 n. 5, 101 S.Ct. at 2865 n. 5 ("[U]nder this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his 'exclusive control' "). Just as arresting officers need not determine that the defendant actually have a gun or actually intend to destroy evidence before conducting a search incident to arrest, they need not reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that would link the validity of the search to the duration of the risks. Pragmatic necessity requires that we uphold the validity and reasonableness of a search incident to arrest if the search is part of the specific law enforcement operation during which the search occurs. And we so held in Han .

In this case, agents arrested Nelson in the front room of an apartment. During the course of that operation they removed his shoulder bag, took him to a separate upstairs bedroom for questioning, and searched the bag--all within a few minutes. The district court did not err in denying Nelson's motion to suppress the fruits of this search.

II

Nelson next contends that he should be afforded a new trial because the district court failed to instruct jurors at any time during trial that they should not discuss the case with anyone outside the courtroom and that they should not discuss the case among themselves until they retire to deliberate.

While the district court did admonish the jury in its final instructions that "anything that you may have seen or heard about this case outside the courtroom is, of course, not evidence and must be entirely disregarded," our review of the record and the government's concession confirms that at no time did the district court provide the jurors with a proper instruction about discussing the case with others. It is also apparent that Nelson did not request such an instruction, nor did he object to the court's failure to instruct the jury about their conduct. Moreover, we have been made aware of no evidence that any juror discussed this case with anyone outside of the courtroom or with other jurors before deliberation.

To assure that jurors properly carry out their role as factfinders in a trial, the trial judge must instruct them on the nature of their task, its limitations, and proper conduct while serving as jurors. It is accordingly customary to advise jurors at the beginning of trial that they are the factfinders, that they will apply those facts to the law given to them by the court, and that they are to find those facts solely from evidence presented to them in the courtroom. And to assure that the jury's verdict is rendered solely on the facts presented in the court and from deliberation of only the jurors sworn to hear the case, the jury must be instructed in substance:

I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case.

In this case no such prophylactic instruction was given. While Nelson argues for the first time on appeal that he should receive a new trial because of its omission, he forfeited the error at trial by not raising it. And rather than arguing now that prejudice resulted, he maintains that the error was fundamental and that he is entitled to a new trial without demonstrating any prejudice, referring us to United States v. Williams, 635 F.2d 744, 745-46 (8th Cir.1980).

Federal Rule of Criminal Procedure 52(b) provides that we may correct error that was forfeited during trial so long as the error was "plain" and "affect[s] substantial rights." See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). And we should not...