USA. v. Sparks

• Citation: 265 F.3d 825
• Decision Date: 07 September 2001
• Docket Number: No. 99-30389,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,99-30389
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. MARK LEROY SPARKS,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 825

265 F.3d 825 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MARK LEROY SPARKS, DEFENDANT-APPELLANT.

No. 99-30389

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 6, 2000

Filed September 7, 2001

[Copyrighted Material Omitted] Michael S. Taggart, Anchorage, Alaska, for the defendant-appellant.

Stephen Cooper, Office of the U.S. Attorney, Fairbanks, Alaska, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska James K. Singleton, District Court Judge, Presiding D.C. No. CR-99-00067-JKS

Before: Betty B. Fletcher and Raymond C. Fisher, Circuit Judges, and William W Schwarzer,^* District Judge.

B. Fletcher, Circuit Judge

Opinion by Judge B. Fletcher

Mark Leroy Sparks was convicted and sentenced following a bench trial. We must decide whether his prior criminal record qualifies him as an Armed Career Criminal. This is contingent on whether either a prior attempted burglary or a theft from storage lockers qualifies as a violent felony under 18 U.S.C. §§ 924(e). In respect to his current conviction, Sparks claims that the search of the car and his bag violated his Fourth Amendment rights. We affirm in part, reverse in part, and remand for resentencing.

I.

A. Facts

Mark Leroy Sparks ("Sparks") was accused of stealing two guns belonging to Raymond Fox ("Fox") in the early morning hours of March 28, 1999. Sparks was indicted on one count of being a felon and a career criminal in possession of a firearm, in violation of 18 U.S.C. §§§§ 922(g)(1) and 924(e), and on a second count of stealing a firearm, in violation of 18 U.S.C. §§ 924(l).

The facts read like the plot of a mystery novel. Fox returned to his home in Nenana, Alaska, after spending several hours in a local bar. He discovered that someone had forced open a front window and entered his home. A quick search of the house revealed that a black bag containing two handguns had been taken. A heavy snow was falling, and Fox could see a set of footprints leading across the street to an intersection. The footprints ended there, as the burglar had apparently been picked up by a passing vehicle. The tire marks from a single car could be seen heading north.

Fox returned home, dialed 911, and spoke to Officer Milton J. Haken ("Haken"). When Haken arrived at Fox's house, he found the scene--the window, the footprints, and the tire tracks--as Fox had described it. Fox also informed Haken that he had seen a stranger in the bar, had bought the stranger dinner, and then later had seen the same man successfully hitch a ride with a passerby precisely at the spot where the footprints ended. This stranger, Fox was sure, was the burglar.

Haken asked Fox to accompany him in Haken's car as he followed the tire tracks north, so that if they overtook the hitchhiker, Fox could identify him as the burglar. They followed the tracks on the Parks Highway for fifty miles to the town of Ester, Alaska, on the outskirts of Fairbanks. At Ester, a second set of tire tracks joined the first. Shortly thereafter, one set of tracks turned off the road into the Gold Hill Tesoro service station where a black Ford Explorer was being refueled. As they drove past the station, Fox noticed that the stranger he had seen was kneeling beside the car. Haken immediately turned around and returned to the station, and by that time, the kneeling man had reentered the car; Haken asked the man at the pump whether he had picked up anybody in Nenana. The man said he had, and Haken drew his weapon, opened the car door, and forced the suspect out.

The suspect was later identified as the defendant, Sparks. Haken handcuffed Sparks, and began to search his clothing. While Haken was searching Sparks, he told Fox to look and "see if his stuff was in the vehicle." Fox retrieved a green duffel bag from the car, which he searched. His black bag was inside, and contained the two missing handguns. Haken placed Sparks in his patrol car and took him back to headquarters.

B. Procedural History

After indictment, Sparks filed a Motion to Suppress Evidence in which he attacked the lawfulness of his arrest and search. The district court, in accordance with the Report and Recommendation of the magistrate judge, denied the motion.

Defendant waived his right to a jury and was tried on stipulated facts. The unresolved issue at trial was whether the government could prove that Sparks had committed at least three prior violent felonies to mandate application of the Armed Career Criminal Act ("ACCA"). After the trial and further briefing, the district court decided that the government had proved three qualifying predicate convictions and thus sentenced Sparks as an Armed Career Criminal to 180 months on count one, and a concurrent 92 month sentence on count two, followed by a five-year period of supervised release.

II.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291. Whether probable cause supports a warrantless search of an automobile and containers within it are questions of law reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). Motions to suppress are reviewed de novo. United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000).

A trial court's conclusion that a prior conviction may be used for purposes of a sentencing enhancement is reviewed de novo. United States v. Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998).

III.

Sparks raises two arguments challenging the legality of the search of the car and his duffel bag: (1) Officer Haken did not have probable cause to search the car; and (2) even if he had probable cause, the manner in which he conducted the search was unreasonable, because he commissioned Fox to carry out the search.

A. Probable Cause

Probable cause is measured by looking at the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983) (describing the test as involving "a practical, common-sense decision whether, given all the circumstances . . . including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place").

We conclude Haken had probable cause to arrest Sparks and to search the vehicle and contents within for the stolen guns. The district court judge classified this as a"perfect circumstantial evidence case that Sparks had means, motive and opportunity." The victim, Fox, was able to identify Sparks at every critical stage. He met Sparks at the bar and bought him dinner. He recognized Sparks as the hitchhiker he had seen from across the street and had waved at. He described what Sparks had been wearing when Officer Haken arrived on the scene to investigate. Finally, he recognized Sparks when he saw him kneeling alongside the car at the gas station as the same person he had met in the bar and had seen hitchhiking.

Fox and Haken tracked the footprints starting from the broken window, crossing the street, to the point where Fox had seen Sparks flag down and enter a passing car. Sparks argues that the footprint evidence was obscured by the footprints that Fox had left while first investigating the scene, but Officer Haken testified that he could make out two, and only two, distinct sets of prints.

Fox and Haken testified that they tracked a lone set of tire tracks, through the freshly fallen snow, most of the way to Ester. Only on the outskirts of town did they encounter another set of tracks. Even though Haken originally drove past the service station, he testified that Fox immediately noticed Sparks near a Ford Explorer, and immediately told Haken to return to the station.

We are not convinced by any of Sparks' arguments challenging his identification. First, Fox's credibility was not seriously in dispute. This was not an unreliable criminal informant, but a complaining victim who had no apparent reason to lie. See generally, Wayne R. LaFave, 3 Search & Seizure §§ 3.4. He had consumed a few beers over the span of several hours, but there is no evidence that he was impaired. Furthermore, Haken verified the physical evidence of a breakin and the footprint tracks leading to the road. Second, it does not matter that an additional pair of tire tracks entered the road near Ester, nor that Haken initially drove past the service station. Haken noticed that two other cars were on the road in Ester, past the service station, and he quickly determined that both were taxicabs. Furthermore, as soon as Fox identified Sparks kneeling beside the Explorer, Haken turned his car around to investigate.

Based on the totality of the circumstances, we conclude that Officer Haken had probable cause to arrest and to search.

B. Fox's Role in the Search

Even if Haken had authority to search the car and the duffel bag, Sparks argues that Haken unreasonably exercised that authority when he told Fox to perform the search. ¹ The government does not dispute that Fox acted as Haken's agent--and thus as an agent of the state--when he conducted the search. No one argues that this was a private search. See generally Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971); United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir. 1995).

Sparks does not argue that the manner in which Fox conducted the search itself was unreasonable; presumably, if Haken had retrieved and opened the duffel bag, exactly as Fox did, Sparks would not have complained. Instead, Sparks claims that Haken acted unreasonably by delegating to Fox the task of searching. Sparks cites Tennessee v. Garner, 471 U.S. 1, 7-8 (1985), for the proposition that the reasonableness of the manner in which a search is conducted is measured for possible abuses of Fourth Amendment rights, even when probable cause to search has been established. He does not cite any authority, however, that precludes the police from delegating authority to conduct a warrantless search to a private citizen. On the other...