U.S. v. Quinn, s. 92-10452

• Decision Date: 17 March 1994
• Docket Number: Nos. 92-10452,92-10509,s. 92-10452
• Citation: 18 F.3d 1461
• Parties: 39 Fed. R. Evid. Serv. 342 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Keith Wayne QUINN, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1461

18 F.3d 1461

39 Fed. R. Evid. Serv. 342

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Keith Wayne QUINN, Defendant-Appellant-Cross-Appellee.

Nos. 92-10452, 92-10509.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1994.

Decided March 17, 1994.

J. Frank McCabe, Goorjian & McCabe, San Francisco, CA, for defendant-appellant-cross-appellee.

Stephen L. Meagher, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the Northern District of California.

Before: SCHROEDER and NOONAN, Circuit Judges, and JONES, ^* District Judge.

SCHROEDER, Circuit Judge:

On September 5, 1991, a lone robber, wearing a dark mask and armed with a silver handgun, entered a bank in Berkeley, California, and took $24,625 from the bank's teller drawers. The robbery was styled a "takeover" robbery by the police because the robber went behind the teller counter and removed the money himself. Two weeks later, on September 19, 1991, at 10:30 a.m., two men entered a San Leandro, California bank dressed in dark clothing and wearing face masks. One of these men was armed with a silver handgun. As in the Berkeley robbery, the man with the gun went behind the teller counter and removed cash--$17,842--from the teller drawers.

During interviews by the police after the Berkeley robbery, four of the tellers described the robber as being 5'6" to 5'8" tall and weighing 140 to 165 pounds. After the San Leandro robbery, witnesses described the robber with the gun as being 5'3" to 6' tall and weighing 160 to 180 pounds. The San Leandro bank's customer service manager described the robber as being 5'9" tall, and weighing 170-175 pounds.

A witness on the street outside the San Leandro bank saw the robbers rolling up ski masks as they left the bank. The witness was interviewed by the police immediately after the robbery, and he told them that he saw the robbers drive away in a light blue Ford or Mercury. The witness also reported that he had seen the vehicle's license plate, and he told the police the tag number he had seen. The license number quickly was traced to a California woman who, within hours of the robbery, told the police that she had sold the car to appellant Keith Wayne Quinn and produced a bill of sale bearing Quinn's signature. The police recognized the name immediately, as Quinn was suspected of being connected to other "takeover" robberies in the area.

Because Quinn was the subject of investigation by the police, they already knew that he often stayed at his girlfriend's home in Oakland. Less than two hours after the San Leandro robbery, police officer Jeffrey Joanicot drove to the Oakland house and saw an Oldsmobile he knew to be one driven by Quinn in the driveway. Officer Joanicot also noticed, in the driveway, a blue Mercury bearing the plate number he knew matched the plate number observed by the witness at the San Leandro bank. Believing that Quinn was inside the house, the police watched the house. About forty-five minutes after the surveillance began, Quinn and another individual, Robert Stewart, exited the house and got into the Oldsmobile. The police stopped the car as it began to back out of the driveway. At gunpoint, Quinn and Stewart were told to lie on the ground and were handcuffed. The police conducted a pat-down search of both Quinn and Stewart, and discovered $1,480 in cash on Stewart. A plastic bag containing $5,380 was found on the front seat of the Oldsmobile.

The police sealed the Oakland house and stood guard until they could obtain a search warrant for the house and for the Mercury that was in the driveway. After obtaining warrants, the police searched the house and found a bag containing $9,060 in cash, including "bait bills" taken during the San Leandro robbery earlier that day. The police also discovered a loaded silver revolver and materials, including photographs and a pink slip for the Mercury, indicating that Quinn used the house as a residence. During a search of the Mercury, the police discovered several rounds of ammunition of the same caliber as the revolver found in the house. After transporting Quinn to the police station, the police discovered $356 in cash in the police car in which he had been traveling.

Quinn was charged with two counts of armed bank robbery and two counts of using a firearm during a crime of violence. This case was first tried in February 1992, resulting in a hung jury. The retrial, which is the subject of this appeal, began March 10, 1992. Quinn was convicted on all four counts.

Because Quinn had prior felony convictions for crimes of violence--second degree attempted robbery and robbery/assault with great bodily harm--he was sentenced as a career offender, pursuant to U.S.S.G. Sec. 4B1.1, on the armed robbery counts. Under that section and under the Guidelines' sentencing scheme, Quinn's applicable guideline range on each bank robbery count was 262-327 months. The district judge sentenced Quinn to 262 months on each count, the sentences to run concurrently. The court imposed two, consecutive five-year terms for the firearm counts.

Quinn appeals his conviction and sentence, alleging that several errors were committed by the district court. The government brings a cross-appeal, contending that by statute, the trial court was required to impose a 240-month sentence, rather than a 60-month sentence, on the second firearm count. We affirm the convictions and vacate and remand for resentencing.

The Lawfulness of the Arrest

Quinn first contends that the trial court erred in denying his motion to suppress evidence obtained by the police after they arrested Quinn without a warrant. He argues that the cash, gun, and ammunition seized during the search of the Oldsmobile, the Mercury, and the house all should have been suppressed because they were obtained after, and tainted by, an invalid arrest.

Quinn contends that the arrest was unlawful because the police did not have probable cause. "The test for probable cause is whether the facts and circumstances within the officers' knowledge are sufficient to warrant a prudent person to believe a suspect has committed ... a crime." United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 80, 112 L.Ed.2d 52 (1990). At the time that Quinn was arrested, the police knew him as a suspect in other "takeover" bank robberies. In addition, the police had discovered that the Mercury in which the San Leandro bank robbers had been traveling had been sold to Quinn and was present at the home of his girlfriend two hours after the robbery. When Quinn left the house, before the arrest, the police knew he was there as well. The district court did not err in concluding that a reasonable officer would have had grounds to believe that Quinn was criminally involved in the San Leandro robbery.

The inconsistencies of the witnesses' descriptions of the robber do not negate the probable cause. Here, unlike United States v. Strickler, 490 F.2d 378 (9th Cir.1974), there was evidence independent of the descriptions connecting the defendant to illegal activity. The police had evidence that a car owned by Quinn, and present with him at the time of arrest at the house where he stayed, had been used in a robbery that was similar to other robberies in which Quinn was a suspect. There was probable cause.

Citing United States v. Alvarez, 810 F.2d 879 (9th Cir.1987), Quinn alternatively argues that even if the police had probable cause, a warrant was nevertheless required. In Alvarez, this court held that a warrantless arrest, even if based on probable cause, is invalid if the arrest is made in a non-public place. In Alvarez, the non-public place was a hotel room. Cases subsequent to Alvarez, however, make it clear that no warrant is necessary for an arrest, made on probable cause, in a public place. Hoyos, 892 F.2d at 1393 (citing United States v. Driver, 776 F.2d 807, 809 (9th Cir.1985)). Quinn voluntarily left the house and was in plain view of officers watching the house from the street when he was arrested. Under Hoyos, no warrant was required for the arrest.

The Admission of Photogrammetry Evidence

Quinn next contends that the district court erred in permitting the government's expert to testify to his use of "photogrammetry" to render an opinion as to the height of the individual in surveillance photographs from the Berkeley robbery. By analyzing two photographs, FBI Agent Douglas Goodin concluded and testified that the Berkeley robber was between 5'3" tall and 5'6"' tall. Quinn is 5'5" tall. To determines the Berkeley robber's height, Agent Goodin used a process in which a formula is derived by measuring the change in the dimensions of objects in a photograph as they move away from the camera. After testing the formula against objects of known dimensions in the photograph, Goodin was able to make an estimate of the robber's height.

Fed.R.Evid. 702 provides the appropriate standard for determining the admissibility of expert scientific testimony. ¹ See Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702 embodies two primary criteria: a district court must determine whether proffered expert scientific testimony is relevant and reliable. Id. --- U.S. at ----, 113 S.Ct. at 2795. There is no dispute in this case as to relevance. The only issue is whether the district court erred in concluding that the process used by Goodin was scientifically valid and sufficiently reliable to be placed before the jury.

The court permitted Goodin to testify after a proffer from the government as to the basics of the photogrammetry process. During this proffer, counsel for the government explained that by using vanishing points, an analyst is able to measure the rate of change in the size of objects as they move away from a camera. Counsel explained...