U.S. v. Rabb

• Decision Date: 10 September 1984
• Docket Number: No. 83-1081,83-1081
• Citation: 752 F.2d 1320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael RABB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

752 F.2d 1320

UNITED STATES of America, Plaintiff-Appellee, v. Michael RABB, Defendant-Appellant.

No. 83-1081.

United States Court of Appeals Ninth Circuit.

Submitted Sept. 10, 1984. ^*

Decided Nov. 19, 1984.

Eric Swenson, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Roderick P. Bushnell, San Francisco, Cal., for defendant-appellant.

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

Before WALLACE, ALARCON, and NELSON, Circuit Judges.

WALLACE, Circuit Judge:

Rabb appeals from his convictions under 18 U.S.C. Secs. 371, 2113(a), and 2113(a), (d) for one count of conspiracy to commit armed and unarmed bank robbery, and four counts of armed and unarmed bank robbery. Four of Rabb's codefendants pled guilty and did not appeal. A fifth codefendant was severed for a separate trial. The district court sentenced Rabb to five years for the conspiracy offense, and fifteen years for each robbery offense. This court has jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and vacate and remand in part.

I

On June 16, 1982, Rabb was assigned to the supervision of California Parole Officer Northrup. In late September 1982, Northrup began to have difficulty contacting Rabb, who had missed several narcotics testing appointments. Northrup became concerned that Rabb was no longer living with his mother at his registered address. Northrup became increasingly suspicious of Rabb's activities when Northrup learned that Rabb's mother's automobile had been identified as the vehicle used in a recent bank robbery.

On September 13th, October 11th, October 19th, and October 27th, 1982, five bank robberies occurred in the San Francisco Bay area. FBI agent Holmquist investigated the robberies and began to suspect Rabb's complicity. On November 2, 1982, Holmquist requested Northrup to provide Rabb's registered address. Northrup complied with this request. On November 3, 1982, Holmquist advised Northrup that Rabb was living at the Franciscan Motel, in violation of condition two of his parole. In order to verify this change of address, Northrup asked Holmquist to accompany him to the motel. On November 4, the two officers, accompanied by other FBI agents, went to the motel, where the manager identified Rabb as a resident after viewing a photograph of him.

Northrup and Holmquist entered Rabb's room, found Rabb and codefendant Pollard, and arrested Rabb for violating his parole. Northrup searched the room and found Rabb's clothing, indicating his residence, and narcotics paraphernalia. During Rabb's apprehension, Holmquist observed needle marks on Rabb's arms and saw a white sailor hat on the bed similar to the hat worn by one of the robbers in the September 13th robbery. After the arrest, Northrup searched Rabb's room at his registered address with the FBI's assistance. On November 5th, Northrup searched the garage at this address. Both searches uncovered evidence linking Rabb to the robberies and narcotics paraphernalia.

II

Sixteen days before trial, Rabb successfully moved to suppress the evidence obtained during his arrest at the motel and during the searches of his mother's home and garage. Six days before trial, the district court denied the government's motion to reconsider the suppression order, and the government announced its intention to have Holmquist testify about his observations of needle marks and the sailor hat. The government acknowledged the suppression order, but argued that testimony about the needle marks and hat was admissible because the evidence was in plain view during a valid arrest. The government did not advance this argument at the suppression hearing. The next day Rabb filed a motion in limine to exclude this testimony. Three days later, the government responded to Rabb's motion. The following day, the court began the trial, completing both the selection and swearing in of the jury. The next day the court held a hearing on the motion in limine, after which it denied Rabb's motion. The trial recommenced the next morning. Rabb argues that once the evidence was suppressed, any testimony regarding it cannot be admitted at trial merely because the government asserts a new theory.

Although the motion acted upon by the district judge was a motion in limine by Rabb, it was in essence a reconsideration of the earlier grant of Rabb's motion to suppress. The same subject matter was involved--only the legal argument had changed. We have approved of the judicial economy that results from the pretrial reconsideration of suppression orders by the district court. See United States v. Jones, 608 F.2d 386, 390 n. 2 (9th Cir.1979). This case is different because the trial had commenced before the hearing and ruling upon Rabb's motion. The extent to which a district court may review the pretrial suppression of evidence during trial is a question of first impression in this circuit. In McRae v. United States, 420 F.2d 1283 (D.C.Cir.1969) (McRae ), a motion to suppress was granted in a case that later resulted in a mistrial. The government moved to reopen the issue when the case was assigned to a new judge. After a new hearing, the district judge admitted the previously suppressed evidence. The District of Columbia Circuit held that relitigation of a suppression order issued before trial on motion of the government should not be permitted as a matter of course; some justification, such as new evidence, would be required. Id. at 1288-89. The court rejected the argument that the defendant's ability to relitigate denials of motions to suppress presupposed that the government had the same right, id. at 1286-87, in part because of the government's greater access to evidence before trial. Id. at 1287.

In United States v. Regilio, 669 F.2d 1169 (7th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982) (Regilio ), the Seventh Circuit arrived at a different conclusion. The court upheld the district court's reconsideration and reversal of its suppression order after a mistrial. Id. at 1177. The court stated that "[t]he defendant is entitled to have evidence suppressed only if it was obtained unconstitutionally. If matters appearing later indicate that no constitutional violation occurred, society's interest in admitting all relevant evidence militates strongly in favor of permitting reconsideration." Id. (citations omitted). The court relied upon a line of cases in the Fifth Circuit which has consistently upheld the propriety of a district court's reconsideration of a suppression order. See, e.g., United States v. Scott, 524 F.2d 465, 467 (5th Cir.1975) (trial court is free to reconsider suppression order; 18 U.S.C. Sec. 3731 is not exclusive method for prosecutor to seek review of order) (Scott ); United States v. Harris, 479 F.2d 508 (5th Cir.1973) (reconsideration of suppression order following mistrial).

Regilio and Scott espouse the sounder approach. The Supreme Court has emphasized repeatedly that the primary function of the exclusionary rule is to deter law enforcement officials from future unlawful conduct. See, e.g., United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 3419-20, 82 L.Ed.2d 677 (1984); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). A criminal defendant acquires no personal right of redress in suppressed evidence. See United States v. Calandra, 414 U.S. at 347-48, 94 S.Ct. at 619-20. Moreover, the Fifth and Seventh Circuit approach enables a district court to correct its own errors without the use of appellate resources.

We review the district court's decision to reconsider a suppression order at trial for an abuse of discretion. Cf. United States v. Layton, 720 F.2d 548, 553 (9th Cir.1983) (decisions to hear pretrial motions before trial or at trial reviewed for abuse of discretion), cert. denied, --- U.S. ----, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). The government proffered a new theory under which the evidence could be admitted, without offering any new facts. We reject McRae's "justification" requirement and adopt the Fifth and Seventh Circuits' position: if the record reveals matters which indicate that the evidence was lawfully obtained, the district court may reconsider its suppression order at trial. There is no indication in this record of purposeful delay by the government or prejudice to Rabb. In this case, the district court did not abuse its discretion by reconsidering its suppression order.

The next issue is whether the needle marks and sailor hat were admissible as evidence in plain view incident to a valid arrest. In Latta v. Fitzharris, 521 F.2d 246 (9th Cir.) (en banc), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975) (Latta ), we adopted a reasonableness test for searches and seizures of parolees. Latta's parole officer arrested him for violations of his parole. After the arrest, the parole officer and two police officers searched Latta's home and found marijuana. Latta was convicted for possession of marijuana with intent to distribute. We upheld the search despite the absence of probable cause, concluding that a search by a parole officer is valid if he reasonably believes that it "is necessary in the performance of his duties." Id. at 250. The reasonableness of the search depends on a balancing of the parolee's privacy interest, which is less than that of the ordinary citizen, and the need to protect the public. Id.

The facts of this case are similar to those in United States v. Dally, 606 F.2d 861 (9th Cir.1979) (Dally ). Dally's boyfriend, a parolee, could not be located at his registered address. The police notified the parole officer that the parolee had moved. A parole investigator and a federal agent investigated the change of address, confirmed it, and arrested the boyfriend. Id. at 862. The officers searched the new residence and found contraband. Id. We concluded that the search was reasonable because the "known facts ...