Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^* 

Montoto appeals from his conviction on numerous firearms counts. Following a car accident, Montoto was found with an arsenal of illegal weapons. State charges were dismissed after the trial judge suppressed all the evidence. Two years later, Montoto was tried on federal gun charges. Almost none of the evidence was suppressed and Montoto was convicted. He argues: (1) the federal prosecution was vindictive and (2) most of the evidence used at trial was the product of illegal warrantless searches.

We examine both questions de novo. United States v. Martinez, 785 F.2d 663, 665-66 (9th Cir. 1986) (vindictive prosecution); United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988) (denial of motion to suppress).

Vindictive Prosecution

Montoto contends the federal charges were the result of vindictive prosecution stemming from his successful motion to suppress in the earlier state court prosecution. The federal prosecution was delayed over two years after the failed state prosecution and increased Montoto's potential jail sentence from 30 years to 90 years (although his actual federal sentence was six months).

If the circumstances pose a realistic likelihood of vindictiveness, the trial court must presume vindictiveness. The burden shifts to the prosecution to rebut the presumption. United States v. Goodwin, 457 U.S. 368, 373-80 (1982). Absent a basis for a presumption, the defendant must prove actual vindictiveness. Id. at 384.

Montoto's argument that vindictiveness should be presumed is weakened by the fact two independent sovereigns are involved. United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981). The subsequent federal prosecution vindicates legitimate and independent federal interests. See United States v. DeMichael, 692 F.2d 1059, 1062 (7th Cir. 1982) (normal prosecutorial discretion where prosecutor decides to proceed in second case if inadequate result in first). The government asserts it decided to prosecute Montoto because it "felt that the state charges had been dismissed as a result of an erroneous state trial court decision interpreting federal constitutional law regarding search and seizure." Brief for the United States 16. The government was also concerned Montoto may have been planning an attempt on the President's life. Id. at 17. Neither of these motives reflects "a desire to punish him for doing something that the law plainly allowed him to do," Goodwin 457 U.S. at 384, and no evidence indicating actual vindictiveness was offered.

The Police Car Searches

a. The Handguns. Montoto showed Officer Palmer four handguns and placed them on the back seat of the police car in plain view. We agree with the district court that in these circumstances Montoto abandoned any reasonable expectation of privacy with respect to the guns and could not object to a routine police check of their serial numbers. Since Officer Palmer "lawfully possessed the [guns, they] could be examined for serial numbers." United States v. Mines, 883 F.2d 801, 804 (9th Cir. 1989).

b. The Containers. Montoto himself placed his duffle bag and other luggage in the patrol car. The district court found Montoto "may have had a reasonable expectation of privacy in the contents of the containers up until he left the vehicle," but held the later search of those containers permissible to assure the safety of the officer and because of exigent circumstances.

Montoto argues neither of the district court's rationales justifies the search. He also argues neither the plain view nor inventory exception to the warrant requirement applies.

We conclude Montoto had no reasonable expectation of privacy in the contents of the containers once he put them in the police car and left them there, and neither a warrant nor an exception to the warrant requirement was necessary to justify Officer Palmer's "peek" into the duffle bag and the subsequent search of the remaining containers.

We agree with the district court " [n]either the defendant's possessory nor his privacy interests are strong under the facts." Before leaving his luggage in the police car, Montoto had displayed an array of guns and an "assassin's briefcase" from which the submachine gun it was designed to conceal was missing. A reasonable person would have expected a police officer to take the precautions Officer Palmer took, including looking into the containers, both to inventory the contents and as a safety precaution.

AFFIRMED.