U.S. v. Smith, 85-1164

Citation790 F.2d 789
Decision Date30 May 1986
Docket NumberNo. 85-1164,85-1164
Parties20 Fed. R. Evid. Serv. 1018 UNITED STATES of America, Plaintiff-Appellee, v. Nile SMITH, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Leslie Osborne, Honolulu, Hawaii, for plaintiff-appellee.

Richard S. Kawana, Honolulu, Hawaii, for defendant-appellant.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, FARRIS, and BOOCHEVER, Circuit Judges.

FARRIS, Circuit Judge:

On October 18, 1983, a two-count indictment was returned against appellant Nile Smith and three co-defendants, William Lynch, Jeffery Freiberg, and Donald McCoy. Count I charged that defendants had conspired to counterfeit and utter obligations of the United States in violation of 18 U.S.C. Secs. 371, 471, and 472. Count II charged that defendants had made, and aided and abetted in the making of, photographs, negatives, and printing plates for use in counterfeiting in violation of 18 U.S.C. Secs. 474 and 2. On the second day of trial, all four defendants withdrew their pleas of not guilty. Smith pleaded guilty to Counts I and II. The other defendants pleaded guilty to Count I alone. Prior to sentencing, Smith withdrew his guilty plea. He was tried before a jury and convicted.

On June 3, 1985, Smith was adjudged guilty, fined and sentenced to imprisonment. Smith filed a timely notice of appeal on June 13, 1985. Fed.R.App.P. 4(b). The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. Jurisdiction in this court is based on 28 U.S.C. Sec. 1291.

A) THE WARRANTLESS ARREST

At approximately 2:25 p.m., September 28, 1983, Lynch and McCoy were arrested by Secret Service agents and local police at the residence they had rented on Ahikawa Street, Kona, Hawaii. Search of the house pursuant to a warrant commenced at approximately 2:45 p.m. While the house was being searched, Smith and Freiberg arrived in Smith's jeep. They approached the house, knocked on the front door, and were arrested by the Secret Service agent who answered the door. A search of Smith's person yielded six $100 bills. Photocopies of one of the bills were later found in Smith's jeep.

While a warrantless search is permissible if conducted incident to a lawful arrest, "if an arrest without a warrant is to support an incidental search, it must be made with probable cause." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) (citing Carroll v. United States, 267 U.S. 132, 155-56, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925)). The probable cause determination is a mixed question of law and fact which is reviewed de novo. United States v. Merriweather, 777 F.2d 503, 505 (9th Cir.1985). Findings of fact on which the district court based its conclusion as to probable cause are reviewed for clear error only. Id.

There was ample foundation for the trial court's conclusion that the officers had probable cause to arrest Smith. The officers knew that Smith and Freiberg had travelled to California where they purchased printing supplies including presses, a numbering machine, and green and black ink. They asked numerous questions about fine-line printing. Upon their return to Hawaii, Smith and Freiberg were followed to the house on Ahikawa Street. Over a period of several days, a Secret Service agent watching the house from an adjacent lot overheard conversations suggesting that the occupants were engaged in counterfeiting.

On September 26, 1983, the agent heard Lynch tell McCoy, inter alia: "I am going to buy a recording studio.... I'm going to buy a gold watch, a new car.... I can't wait to start running the numbers." McCoy then made some comment about "get[ting] rid of the plates," to which Lynch responded: "No, I think we should melt them down." Lynch went on to say "that it will be easy to pass. You just have to buy some gum, pass some here and go somewhere else and pass them. You don't pass them all in one place, a couple here, a couple there. Then fly to another town and pass some more." On September 27th the agent observed all four defendants at the Ahikawa Street residence. He "heard a large vibration, humming noise, coming from the master bedroom." A voice said, "This will never do." Another responded, "I'll have to work on it." Shortly thereafter, Lynch entered the living room with what appeared to be "dark green ink on his hands and wrists." During this time, Lynch repeatedly exited and re-entered the house:

[A]nytime [there was] a car or any noise or anything outside, he would come out, look around, surveil the area. He made many trips out the sliding door on the ocean side of the house. He would look around. Then he would go to the direction of an out building on the ocean side of the main house. And he would come back in. Every time he would come back in, he would lock the door. One time he forgot to lock the door, didn't lock the door, and defendant Smith came in the living room and locked the sliding door behind Lynch.

At approximately 3:55 p.m., Smith and Freiberg departed the residence. Upon exiting "Freiberg said back inside to Lynch and McCoy that they would get rid of this and be right back." Freiberg was carrying a brown paper bag. They left in Smith's jeep.

Our review of the record reveals that, under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that Smith had committed a crime. See United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir.1985); United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir.1984). See also Henry, 361 U.S. at 102, 80 S.Ct. at 171. Smith's arrest and the search incident thereto were lawful.

B) THE WARRANTLESS SEIZURE OF THE AUTOMOBILE

Immediately after Smith and Freiberg were arrested, Smith's jeep was towed to the local police station. The authorities did not have a warrant to seize the vehicle. In a statement given to a Secret Service agent at the station, Freiberg indicated that a brown paper bag containing "negatives of a hundred-dollar bill and some Xerox copies of a hundred-dollar bill" could be found in the jeep. Agents escorted Freiberg to the police parking lot where he identified the jeep and, through the window, the bag. Based on Freiberg's statement and his visual identification of the jeep and the bag, agents obtained a warrant to search Smith's jeep.

Smith's motion to suppress the copies and negatives of a $100 bill found in the ensuing search was denied. The court approved the warrantless seizure primarily on an impoundment rationale, citing Cabbler v. Superintendent, 528 F.2d 1142, 1146 (4th Cir.1975), cert. denied, 429 U.S. 817, 97 S.Ct. 60, 50 L.Ed.2d 77 (1976). The court also noted that "additional grounds for seizure arose under the criminal forfeiture laws and because of probable cause to believe contraband may still be located within the jeep." We may affirm on any ground fairly supported by the record. United States v. Burnette, 698 F.2d 1038, 1048 (9th Cir.), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983).

We reject the government's suggestions (1) that towing the jeep to the police parking lot did not amount to a seizure within the meaning of the Fourth Amendment, United States v. Bagley, 772 F.2d 482, 490 (9th Cir.1985), cert. denied, --- U.S. ---, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986); see also Cardwell v. Lewis, 417 U.S. 583, 592-96, 94 S.Ct. 2464, 2470-72, 41 L.Ed.2d 325 (1973) (plurality), and (2) that simply by obtaining a warrant prior to searching the jeep the agents purged the taint of the warrantless seizure. See Bagley, 772 F.2d at 489; United States v. Spetz, 721 F.2d 1457, 1473 (9th Cir.1983). Nevertheless we need not decide whether the warrantless seizure was proper under a probable cause or impoundment rationale.

Examination of the affidavit submitted in support of the warrant application reveals that probable cause to search the jeep existed independent of the information obtained as a result of the seizure. The affidavit recites that subsequent to his arrest Freiberg stated that "the negatives he produced of $100 [federal reserve notes] on 9-27-83 were taken by Nile Smith, placed in a brown paper bag, taped with brown masking tape and carried by Smith to a 1977 brown 4 wheel drive jeep vehicle bearing Hawaii License No. HBN 577." " 'When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue.' " United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir.1985) (quoting James v. United States, 418 F.2d 1150, 1151 (D.C.Cir.1969)). Under the totality of the circumstances, see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the magistrate had an adequate basis for finding probable cause to search the jeep independent of allegations stemming from Freiberg's opportunity to view the jeep in the police parking lot.

C) ADMISSION OF TESTIMONY CONCERNING FREIBERG'S GUILTY PLEA

Twice during direct examination Freiberg testified that he had pleaded guilty to the offense for which Smith was being tried. Despite his failure to object on either occasion, Smith contends that admission of this testimony requires reversal.

Freiberg's first reference to the guilty plea was not evoked intentionally by the prosecutor. It prompted no limiting instruction from the trial court. Freiberg's second reference to his guilty plea came in response to a direct question from the prosecutor. The court immediately delivered a limiting instruction:

All right. Those last three questions, ladies and gentlemen, was exactly what I had forewarned the jury about with respect to anything that affects this defendant's guilt should in no way be used and held against Mr. Smith. The fact that both of them were...

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