Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1018 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Billy James TATE, Defendant-Appellant.

No. 90-10218.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1991.* Decided May 16, 1991.

Before FARRIS, BOOCHEVER and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Billy James Tate appeals the district court's denial of his motion to reopen his motion to suppress and the increase of his sentence after he withdrew a guilty plea and a jury convicted him. Tate argues that inconsistent testimony of the arresting officers and lack of probable cause justified suppression of seized drugs and that the sentence increase from thirty-six to fifty-two months was vindictive. We affirm.

BACKGROUND

On July 7, 1984, Sergeant Chin and Officer Teich of the Oakland Police Department responded to a complaint of drug trafficking involving a red Corvette at 2229 East 24th Street. The officers observed Tate at the back of a Cadillac passing a white paper bindle, which they knew was a common way to package cocaine, to Kevin Gilky while receiving a wad of money. The officers arrested Tate, discovering $850.00 and two sets of automobile keys in his pocket. One set of keys fit the Cadillac, in the trunk of which they found cocaine paraphernalia, guns, and ammunition. Through the window of a red Corvette parked two car lengths away, the officers observed a DMV notice addressed to Tate and a torn paper bag containing clear plastic bags of what appeared to be cocaine. The police used the other set of keys to open this car, and seized both items.

Judge Schwarzer denied Tate's motion to suppress the seized items. Thereafter, Tate pled guilty to possession with intent to distribute, conditional to his being allowed to appeal the district court's denial of his motion to suppress. Tate was sentenced to thirty-six months imprisonment to be followed by five years parole.

Upon Tate's appeal of the denial of the motion to suppress, we remanded for a further hearing and factual determination. United States v. Tate, No. 85-1285 (9th Cir. June 10, 1986). The district court again denied Tate's motion to suppress.

Tate moved for reconsideration of both the motion to suppress and an order denying Tate's motion to withdraw his earlier guilty plea. The district court denied both motions. On appeal this Court affirmed the district court's denial of the motion to suppress, but remanded on the motion to withdraw the guilty plea. United States v. Tate, No. 87-1320 (9th Cir. July 28, 1988).

On remand the district court granted Tate's motion to withdraw the guilty plea. Again, Tate filed a motion to reopen the motion to suppress, which the district court denied. Judge Schwarzer transferred the case to Judge Schnacke. Trial commenced, but two days later, Judge Schnacke declared a mistrial. Prior to the second trial, Tate filed another motion to reopen, which was denied. Shortly thereafter, a jury found Tate guilty of possession with intent to distribute cocaine. At the sentencing hearing, Judge Schnacke concluded Tate had "an extraordinarily high recidivism risk" which posed a "danger to the community" and sentenced him to a term of fifty-two months imprisonment with three years parole.

DISCUSSION

Motion to Suppress

As a threshold question, we are presented with the issue of whether the law of the case bars Tate's appeal of the denial of the motion to suppress. See United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986). The law of the case doctrine is discretionary, especially where " 'the evidence on a subsequent trial was substantially different....' " Houser, 804 F.2d at 567-68. (citation omitted).

Tate argues that discrepancies between the 1985 evidentiary hearing testimony of Officer Teich and the subsequent trial testimony of Officer Chin merit yet another review of the denial of his motion to suppress. Tate alleges that Chin's testimony discredits the factual finding that Tate was initially arrested for the sale of cocaine, and instead proves he was arrested for illegal possession of firearms only after the police searched the trunk of the Cadillac. Tate concludes the search of the Cadillac which led to the discovery of weapons therefore could not have been incident to an arrest, and hence was inproper. He further argues that the cocaine seized from the search of the Corvette was "fruit of the poisonous tree," citing Wong Sun v. United States, 371 U.S. 471 (1963).

While the law of the case probably applies, we shall exercise our discretion to rule on the motion to suppress issue. We find that the district court did not err in denying Tate's motion. The testimony of the officers which remained uncontradicted demonstrated probable cause. We review de novo a finding of probable cause for a search. United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989).

Here, the police observed Tate exchange narcotics for currency. This observation sufficed for probable cause to arrest Tate and to search him incident to arrest. "Whether an arrest has occurred 'depends on an evaluation of all the surrounding circumstances,' and not the subjective intent of the officers involved." United States v. Beck, 598 F.2d 497, 500 (9th Cir. 1979) (citations omitted). Thus, even if Tate was not arrested in form prior to the search of his person, his freedom of movement was curtailed and thus he was arrested in substance. Id. The police therefore discovered, pursuant to the search incident to arrest, the wad of money and keys to the Cadillac and the Corvette in Tate's pockets. The items seized from the trunk of the Cadillac were never introduced into evidence, nor was Tate charged with their possession, at the second trial. Hence the search of the Cadillac is irrelevant to this appeal.

As for the Corvette, the officers observed the DMV notice and open bag of what appeared to be cocaine in plain view from their lawful vantage point on the street. This, coupled with what they had learned during the initial detention, gave them probable cause to enter the car and seize the torn bag. United States v. Head, 783 F.2d 1422, 1427 (9th Cir.), cert. denied, 476 U.S. 1171 (1986). The officers thereby rightfully seized the cocaine under the plain view exception. The district court thus properly denied Tate's request to reopen the motion to suppress.

The Sentence Increase

Unless sentencing raises constitutional questions, it is left to the discretion of the district court and will be reviewed only for abuse of discretion. United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.) cert. denied, 488 U.S. 866 (1988). Tate argues that Judge Schnacke vindictively increased his thirty-six month pre-trial sentence to fifty-two months after trial, and must be punishing him for "exercising his rights in the two prior successful appeals and his two trials."

Tate recognizes that under Alabama v. Smith, 490 S.Ct 794, 797-98 (1989), he has the burden of proving actual vindictiveness and may not rest on a presumption of vindictiveness. Yet the only affirmative evidence Tate provides is Judge Schnacke's rationale for the increase stating that Tate's "conduct, even since his sentence ... by Judge Schwarzer, has not been exemplary." This evidence does not rise to a showing of vindictiveness. In passing sentence, Judge Schnacke had before him Tate's prior record which included an arrest for the possession of heroin with the intent to distribute. This arrest occurred between the time of his original and subsequent sentences. Judge Schnacke found that there was probable cause to believe that this event occurred. Finally, after the second remand by this court, Tate did not appear at trial and could not be located for nine months. The sentence increase was therefore justified.

CONCLUSION

The district court properly denied Tate's motion to reopen the motion to suppress. The sentencing judge did not vindictively increase Tate's sentence. We AFFIRM.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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