U.S. v. Staller

• Decision Date: 14 May 1980
• Docket Number: No. 79-5332,79-5332
• Citation: 616 F.2d 1284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Davida Ross STALLER and David Owen Saunders, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1284

616 F.2d 1284

UNITED STATES of America, Plaintiff-Appellee, v. Davida Ross STALLER and David Owen Saunders, Defendants-Appellants.

No. 79-5332.

United States Court of Appeals, Fifth Circuit.

May 14, 1980.

Howard F. Husum, New York City, for Staller.

Mark C. Menser, Fort Lauderdale, Fla., for Saunders.

Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before MORGAN, ANDERSON and RANDALL, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Appellants David Saunders and Davida Staller were found guilty by a jury of knowingly passing and possessing counterfeit twenty dollar ($20) Federal Reserve Notes in violation of 18 U.S.C. § 472 and 18 U.S.C. § 2. On appeal, both appellants contend that the district court erred in admitting certain evidence seized during a warrantless search of Saunders' automobile and in refusing to grant a mistrial following a reference at trial to Saunders' post-arrest silence. In separate arguments, Staller contends that there was insufficient evidence adduced at trial to support her conviction, that a limiting instruction following the testimony of two government witnesses was prejudicial and confusing, that the court erred in refusing to grant her motion for severance, and that the government's attempt to introduce certain evidence prejudiced her defense. We find no error requiring reversal and therefore affirm the district court.

I.

The facts, considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), reveal that on August 24, 1978, appellants were customers at the J. C. Penney store located in the Gateway Shopping Center, Jacksonville, Florida. ¹ While in the store's toy department, Davida Staller purchased two toy cars for $.97 apiece and paid for her purchase with a $20 bill. When the Penney's sales clerk received Staller's payment he noticed that the bottom edge of the $20 bill was torn in an unusual manner. Following the sale, the clerk notified his supervisor that he thought he had received a bad bill. The clerk described Staller as wearing a white T-shirt with a distinctive sliced watermelon design printed on the front.

At approximately the same time that Staller was in the Penney's toy department, appellant Saunders attempted to make a purchase in the store's record album department. When Saunders tendered a $20 bill in payment for his purchase, the sales clerk discovered that she had insufficient change to make the sale. The clerk then told Saunders that he could either wait at that register until a supervisor could bring change or come back later. Saunders replied that he would return later and walked away. The clerk observed Saunders approach the store's cosmetic counter where a woman wearing a T-shirt with a watermelon design on the front was making a purchase. Following the completion of the sale, the clerk saw the woman and Saunders leave the store together.

Shortly after appellants had departed, the J. C. Penney security officer determined that the store had received three counterfeit $20 bills. He then alerted store personnel that $20 bills having identical serial numbers had been passed in the store and informed the local Secret Service office of the incident. In addition, the security officer telephoned other J. C. Penney stores in the vicinity, including the stores in Daytona Beach, Florida, and gave them a description of the counterfeit bills and of a white female wearing a T-shirt with a unique watermelon design.

The Fifth Avenue Card Shop, another store in the Gateway Shopping Center, is located within 100 feet of the J. C. Penney store. During the noontime hour of August 24 Staller entered the card shop, selected an item, and handed the proprietor a $20 bill. Upon feeling the bill, the proprietor told Staller that someone had given her a bad bill and that he could not accept it. Staller took back the $20 bill and paid for her purchase with other money she had in her purse.

At about this same time, Saunders entered the Murphy Mart store also located in the Gateway Shopping Center. While in the store Saunders attempted to make a small purchase using a $20 bill as payment. Suspicious of the bill because it "looked funny," the cashier called the assistant manager to her register. The assistant manager, upon examining the bill, informed Saunders that the bill was not genuine and that the store could not accept it. He also advised Saunders to take the bill to a nearby bank where it could be checked out. Saunders then paid for his purchase with other money he had on his person and left the store with the questioned $20 bill in his possession.

After being informed that a Penney's store in Jacksonville had received counterfeit bills, the manager of the J. C. Penney store located in the Volusia Mall, Daytona Beach, Florida, posted the serial number of the bogus $20 bills at cash registers throughout his store. During the late afternoon of August 24, appellant Staller, still wearing the watermelon-design T-shirt, entered the Penney's Volusia Mall store. At the store's cosmetic counter Staller offered a $20 bill as payment for a $1.25 item she had selected. During the course of this transaction the sales clerk compared the serial number of the $20 bill with the serial number that had recently been posted at her register and found that the numbers were identical. Realizing she should not accept this bill, the sales clerk stated that she did not have sufficient change and asked if Staller had any bills of a smaller denomination. When Staller said that she had no smaller bills, the sales clerk called her supervisor, who left with the bill ostensibly for the purpose of getting change.

While Staller was waiting at the cosmetic counter, Saunders entered the store's automotive center and purchased a $1.79 can of car wax, paying for his purchase with a $20 bill. Noticing that the $20 bill was faded on one side and "looked funny," the sales clerk at first refused to accept the bill. Saunders then produced a $50 bill and a $100 bill and offered to pay for the merchandise with one of them. Having insufficient change for either of these bills, the clerk accepted the $20 bill and gave change to Saunders, who then departed.

Meanwhile, the Penney's personnel director had stationed himself at the store's front door where he could observe Staller's actions. From this vantage point he saw a yellow Cadillac park in a space near the front door of the store. The man who got out of the car and came into the store was the appellant Saunders. When the personnel director asked if he could be of assistance, Saunders replied that he was looking for his wife who, he said was wearing a T-shirt with a watermelon design on the front. The personnel director then deliberately directed Saunders away from the cosmetic counter to look for his wife.

While Saunders was thus occupied, the manager asked Staller to accompany him to the store office. Once in the office Staller informed the manager that she was expecting to meet someone and that she had other money in her purse which he was welcome to inspect. The manager looked through this money and saw several smaller bills but no $20 bills. Within a few minutes, Saunders entered the manager's office escorted by an officer of the Daytona Beach Police Department who had been called to the store. After discussions between police officers and store personnel, one of the officers advised both Staller and Saunders of their Miranda ² rights. At this point Saunders stated spontaneously, "The girl didn't have anything to do with it. It is my fault, and I just picked her up for taking a trip." ³

The police officers placed appellants under arrest for uttering a forged note in violation of Florida law. During a pat-down search of Saunders, the officers found a $20 bill bearing the same serial number as the questioned bills, some other currency and coins, and a set of car keys. Before departing the J. C. Penney store on route to the police station, Saunders delivered the car keys to one of the arresting officers.

The officers, pursuant to police department policy, proceeded to inventory the contents of Saunder's car prior to its being towed away by a private wrecker service. In a map compartment on the passenger side of the front seat an officer discovered a roll of five $20 bills; a search of the trunk revealed a plastic bag contain 88 $20 bills. The serial numbers of these bills were identical to each other and to the serial numbers of the bills passed inside the J. C. Penney stores. The officers also inventoried a number of shopping bags from different stores, each bag containing one or two small items of merchandise. ⁴

Staller and Saunders were named defendants in each count of a four-count indictment. ⁵ Count One charged appellants with passing counterfeit $20 bills at the Gateway Shopping Center in Jacksonville. Counts Two and Three charged appellants with passing counterfeit bills at the Volusia Mall in Daytona Beach. Count Four charged appellants with knowingly possessing five counterfeit bills. At the conclusion of appellants' joint trial the jury found Saunders guilty on all four counts charged in the indictment. The jury acquitted Staller on Count One but found her guilty on the remaining three counts. ⁶

II.

A. Inventory Search. ⁷

Both appellants argue that the evidence uncovered during a warrantless search of Saunder's car was seized in violation of the Fourth Amendment and therefore should not have been admitted at trial. Although appellants recognize that routine inventory searches of vehicles lawfully within police custody have often been upheld, they maintain that a warrantless inventory search is unconstitutional where the automobile is legally parked in a commercial parking lot during trade hours and there is ample time to procure a warrant...