U.S. v. Tate, 86-2122

• Decision Date: 02 July 1987
• Docket Number: No. 86-2122,86-2122
• Citation: 821 F.2d 1328
• Parties: 23 Fed. R. Evid. Serv. 925 UNITED STATES of America, Appellee, v. David C. TATE, a/k/a Matthew Mark Samuels, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1328

821 F.2d 1328

23 Fed. R. Evid. Serv. 925

UNITED STATES of America, Appellee, v. David C. TATE, a/k/a Matthew Mark Samuels, Appellant.

No. 86-2122.

United States Court of Appeals,

Eighth Circuit.

Submitted February 11, 1987.

Decided July 2, 1987.

R. Steven Brown, Springfield, Mo., for appellant.

Robin James Aiken, Springfield, Mo., for appellee.

Before ROSS and BOWMAN, Circuit Judges, and NANGLE, District Judge. ^*

ROSS, Senior Circuit Judge. ^**

Defendant David C. Tate appeals his conviction by a jury of fourteen counts of federal weapons violations under 26 U.S.C. Secs. 5861(d) and 5871 (1982). On appeal Tate argues that the district court ¹ erred by failing to exclude evidence of firearms seized from his vehicle without a warrant, and by admitting evidence of defendant's related state law crime. For the reasons set forth below, we affirm.

I.

On April 15, 1985, a Missouri State Highway Patrol mobile traffic check was set up on Highway 86 in Taney County, Missouri, by two state highway patrol troopers for the purpose of checking for driver's license, vehicle safety and vehicle registration violations. Appellant's vehicle was stopped by the state troopers and a driver's license check revealed that Tate's license contained an alias and that Tate was wanted by the State of Washington on weapons charges. As the two state troopers approached Tate's van to confront him with this information, Tate opened fire on the troopers with an automatic weapon, killing one officer and severely wounding the other. Tate immediately fled the scene on foot, abandoning the vehicle.

During an initial investigation at the crime scene, Sergeant Tom Martin of the Missouri Highway Patrol discovered through the windows of the van a "Mack 10" type machine gun with shell casings, a box of ammunition, and numerous cartons, boxes and bags all lying in plain view. The officers at the scene were aware that Tate was a member of "the Order," a white supremacist group, and that Tate was known to carry weapons and was considered to be very dangerous. After the initial investigation at the crime scene, Tate's van was towed to the Taney County, Missouri, sheriff's office where a warrantless search of the van revealed numerous automatic weapons, ammunition, hand grenades, and kinetic explosives. Following an extensive one week manhunt, Tate was captured several miles from the scene of the shootings.

Tate was subsequently tried and convicted of murder and assault in state court in connection with the attack on the two state troopers. He was also indicted by a federal grand jury on fourteen counts of federal weapons violations as a result of the firearms and explosives found inside his van. Following a jury trial, Tate was convicted on all fourteen counts of the indictment.

II.

Appellant argues that the district court erred in overruling his motion to suppress evidence of the firearms taken from his van without a search warrant. Tate first argues that the warrantless search was illegal under Missouri law, MO.REV.STAT. Sec. 43.200 (1986), which limits the warrantless search and seizure power of a member of the state highway patrol except when incident to an arrest. Tate argues that because no arrest was made in connection with the search of the van, the search was conducted in direct contravention of state law and the evidence should therefore have been suppressed.

Appellant's reliance on state law is unfounded. In a federal prosecution, the legality of a search and seizure is not determined by reference to a state statute, but rather is resolved by fourth amendment analysis. Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967). In United States v. Ross, 713 F.2d 389, 393 n. 7 (8th Cir.1983), this court held that the question "[w]hether evidence obtained by state officers and used against a defendant in a federal trial was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers." Moreover, in United States v. Eng, 753 F.2d 683, 686 (8th Cir.1985), this court held that a search and seizure in violation of MO.REV.STAT. Sec. 43.200, the statute at issue here, did not require the exclusion of the evidence seized.

Applying constitutional analysis, the district court in the instant case rejected appellant's allegations of fourth amendment violations stating that appellant had abandoned his expectation of privacy in the van and its contents when he fled from the scene of the shootings leaving the van on a public highway with the windows down and the doors unlocked.

Before a party can claim the protections of the fourth amendment, he must establish a legitimate expectation of privacy in the object searched. Although once having had that expectation, it may later be abandoned. United States v. Biondich, 652 F.2d 743, 745 (8th Cir.), cert. denied, 454 U.S. 975, 102 S.Ct. 527, 70 L.Ed.2d 395 (1981). The Eighth Circuit has ruled on similar facts that a suspect who flees an unlocked vehicle parked on a public roadway thereby abandons his expectation of privacy. United States v. Walton, 538 F.2d 1348, 1354 (8th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 647, 50 L.Ed.2d 628 (1976). Appellant, in the instant case, had denied any ownership of the van. Neither the vehicle identification number nor the license plates on the van indicated that the van or its contents belonged to Tate. When Tate fled the scene of the murder, leaving the van unoccupied and unlocked, he abandoned his expectation of privacy in the van and its contents.

The government also argues that even if Tate had an expectation of privacy in the van and its contents, the search was reasonable under the fourth amendment. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court held that once officers have probable cause to believe a vehicle contains contraband, they may conduct a search of the vehicle, including containers therein, that is as broad, and no broader, than the scope of a search which would be authorized by a warrant issued on probable cause. Id. at 823, 102 S.Ct. at 2172.

Here, as in Ross, the police had probable cause to search the vehicle itself. The evidence showed that when the officers arrived at the scene they observed the assault which had occurred. They were aware the appellant, armed with a machine gun and silencer, had abandoned the van. They observed in plain view inside the van another machine gun, ammunition and shell casings. The officers knew that appellant was wanted by the State of Washington on felony charges and was a member of "the Order," a violent group known to carry weapons and explosives. Clearly, under these facts, the officers had probable cause to search the van.

Finally, appellant argues that even if a search of the van would have been reasonable at the scene of the crime, the actual search which took place at the county sheriff's office five hours later was too remote in time and was therefore unreasonable. The Supreme Court, however, has held that "when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody." Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080, 73 L.Ed.2d 750 (1982).

Under any one of these legal theories, the warrantless search of appellant's van was not conducted in contravention of the fourth amendment. ²

III.

As a separate basis for relief, appellant argues that the district court erroneously denied his motion to exclude from the trial evidence of the state trooper's murder. Appellant contends that the district court erroneously admitted evidence of "other crimes" tending only to show bad character. Appellant argues the evidence of the shootings was cumulative and irrelevant and because its probative value was outweighed by its prejudicial effect, the evidence should have been excluded under either FED.R.EVID. 404(b) or 403.

FED.R.EVID. 404(b) states that evidence of "other crimes, wrongs, or acts" is not admissible to prove character, but is admissible "for other purposes, such as...