Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Harvey Ernest MATHNAY, Defendant-Appellant.

No. 89-30054.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1990.Decided Feb. 22, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


MEMORANDUM* 

We must decide whether the district court properly found probable cause for a warrantless arrest and properly justified a warrantless seizure. We also address defendant's sentence enhancement under 18 U.S.C. § 924(e) (1), the Armed Career Criminal Act (ACCA). We affirm the warrantless arrest and seizure but reverse the sentence enhancement.

FACTS

Defendant Harvey Mathnay was on parole from a state court conviction during the spring and summer of 1987. He had been convicted on a total of five counts of burglary in the second degree on four separate occasions prior to 1987. During the summer of 1987, he cooperated with the Multnomah County Sheriff's Department in its investigation of a large fencing operation. He assisted in solving 26 burglaries by admitting his involvement in exchange for the department's promise not to seek prosecution. The police warned him that they would prosecute future burglaries that he might commit.

In late August 1987, a man identifying himself as Harvey Mathnay sold an air compressor to a local pawnshop. The air compressor's serial number matched that of one stolen from a dentist's office. On September 4, 1987, the defendant sold a quantity of dental gold to detectives at another pawnshop opened by the police as part of an undercover sting operation.

During the night of September 7, 1987, a series of burglaries occurred at the Parkway Medical Building. During the next afternoon, the defendant walked into the police-operated resale shop. He was carrying a blue athletic bag from which he produced a quantity of dental gold that he sold to undercover agents. He took other items from the bag and discussed possible sales to agents. Meanwhile, one of the undercover agents called local police. They arrived in time to observe Mathnay leaving the vicinity of the resale shop with the blue bag attached to the back of his motorcycle.

A short time later, one of the officers observed the defendant talking with his girlfriend in her front yard. The motorcycle, with the blue bag still attached, was parked in the driveway 20 yards from the street. The police arrested Mathnay, seized the blue travel bag, and advised him of his Miranda rights.

At the sheriff's office, the police advised Mathnay again of his Miranda rights and he signed a waiver. The police asked him if they could search the blue bag and he consented, telling the police that they would find a gun. The police later determined that both the blue bag and the gun were stolen in the Parkway Building burglaries.

Before trial, the defendant moved to suppress evidence of the gun and his oral admissions, arguing that these were illegally obtained because the police lacked probable cause to arrest him or seize the bag. The court denied the motions finding that (1) probable cause existed for the arrest; and (2) seizure of the bag was justifiable under an inventory theory. A jury returned a guilty verdict for a violation of 18 U.S.C. § 924(g) (1) ex-felon in possession of a firearm which had previously moved in interstate commerce. Before sentencing, Mathnay moved to preclude application of the ACCA. The motion was denied and he was sentenced to a minimum of 15 years under that Act.

ANALYSIS

Mathnay alleges that the police lacked probable cause to believe that he had committed a crime. Probable cause determinations are subject to de novo review. United States v. Smith, 790 F.2d 789 (9th Cir. 1986).

"The test for probable cause is whether the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime." United States v. Hoyos, 868 F.2d 1131, 1135 (9th Cir. 1989). A court may consider both the experience and collective knowledge of all officers involved in the investigation and their respective levels of expertise. Id. A court may also consider any reasonable inferences drawn from the officers' collective knowledge. Id. at 1136.

The police had probable cause to believe that Mathnay had committed a crime. The arresting officers were aware of his prior criminal record, including five convictions of burglary. He also had admitted his involvement in 26 other burglaries while he was cooperating with the police. In the weeks prior to Mathnay's arrest, one identifying himself as Mathnay sold an air compressor, stolen from a dental office, to a local pawnshop. A few days before his arrest, Mathnay sold dental gold to undercover agents. The day after the Parkway Building had been burglarized, he sold more dental gold to undercover agents. He was arrested shortly after this final sale. We conclude that "the facts and circumstances within the arresting officer's knowledge [were] sufficient to warrant a prudent person to believe a suspect has committed ... a crime." Id. at 1135. The police had probable cause to arrest Mathnay.1 

THE DEFENDANT CLAIMS HIS FOURTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE POLICE SEIZED THE BLUE BAG FROM HIS MOTORCYCLE WITHOUT A WARRANT.2  A DISTRICT COURT DETERMINATION OF A WARRANTLESS SEIZURE IS SUBJECT TO DE NOVO REVIEW. UNITED STATES V. LICATA, 761 F.2d 537, 540 (1985).

Warrantless seizure of property is per se unreasonable unless the seizure falls within one of the exceptions to the warrant requirement. Thompson v. Louisiana, 469 U.S. 17, 20-21 (1984). The district court based its decision on the inventory exception. We reject use of that exception3  but find that the seizure is justifiable under the exigent circumstances exception. Under this exception, police may seize a container without first obtaining a warrant if the police have probable cause to believe the container holds evidence of a crime and exigencies exist in the circumstances that demand immediate action. United States v. Place, 462 U.S. 696 (1982). We address these requirements separately.

An officer must have probable cause to believe that a container holds evidence of a crime. United States v. Licata, 761 F.2d 537, 540 (1985). A court must analyze the totality of circumstances in making probable cause determinations. Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause does not require that the officer's belief be "correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1982).

These officers had probable cause to believe that the blue bag contained evidence of a burglary.4  One detective in the resale shop testified that Mathnay carried a blue, athletic type bag.5  He sold dental gold, as well as displaying to the detectives other items for possible sale. He took the gold and other items from the blue bag, and returned to it those items not sold. The local police, after being notified by the detectives, arrived in time to see Mathnay drive off with the blue bag attached to his motorcycle. It is reasonable to conclude that the local police were informed about events occurring in the resale shop. These factors considered together establish that the officers had probable cause to believe that the blue bag contained evidence of a crime.

Exigencies must exist that demand immediate warrantless seizure. United States v. Licata, 761 F.2d 537 (9th Cir. 1985). Exigent circumstances are those that would cause a reasonable person to believe that prompt action is necessary to prevent "physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the defendant, or some other consequence improperly frustrating law enforcement efforts." United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1984). The court must examine the totality of circumstances in deciding whether exigencies existed. Id. Specific facts must exist which, when taken together with rational inferences, demonstrate an exigency supporting the warrantless intrusion. Id. at 543.

Prompt action was necessary here to prevent the destruction of evidence. The blue bag was strapped to the back of Mathnay's motorcycle, which was parked in his girl friend's driveway 20 yards from the street. That friend, or other friends, could easily have removed the bag or sorted through its contents had the blue bag remained in the driveway. The warrantless seizure of the blue bag was proper.6 

Finally, were the Oregon second degree burglary convictions a proper basis for sentence enhancement under the ACCA? We review this issue de novo. United States v. Chatman, 869 U.S. 525 (9th Cir. 1989).

As the government concedes, this issue is controlled by United States v. Cunningham, 878 F.2d 311, 312 (9th Cir. 1989), and United States v. Chatman, 869 F.2d 525. In Cunningham, this court held that an Oregon state conviction of second degree burglary cannot serve as a basis for sentencing enhancement. 878 F.2d. at 312.

The government urges that Cunningham and Chatman were wrongly decided.7  We decline the invitation to so declare. Landreth v. Commissioner, 859 F.2d 643, 648 (9th Cir. 1988) (absent en banc review or an intervening Supreme Court decision, a three judge panel's decision is binding). Under Cunningham and Chatman, we vacate the sentence and remand for resentencing.8 

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Mathnay argues that the oral admissions were tainted because the arrest was illegal. As we find that the arrest was legal, defendant's argument is without merit. Also without merit is defendant's unsupported argument that the oral admissions were made under a belief that the police would provide a significant benefit for his cooperation

 2

The government asserts that the defendant lacks standing to challenge the seizure because the bag was stolen property. Under our decision in Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), however, the defendant's ability to challenge a warrantless seizure does not turn on his ownership of the property. Although Cotton has been criticized by the Supreme Court as "inexplicable", Rakas v. Illinois, 439 U.S. 128, 141 n. 9 (1978), it is still the law in this circuit

 3

This exception is normally used to justify searches where a police department has an established, administrative inventory procedure that is followed when an arrested person is jailed. Illinois v. Lafayette, 462 U.S. 640 (1983). Neither the district court's opinion nor the record reflects evidence that such a procedure was followed

 4

The district court found, and we agree, that the police did not know at the time of seizure that the bag was stolen. We are disturbed by the government's assertion that the officers knew the bag was stolen. The record clearly supports the district court's finding

 5

We recognize that this testimony was not available to the district court at the time of the suppression hearing. However, our review allows us to examine the entire record. A district court's decision may be affirmed on any ground supported by the record. United States v. County of Humboldt, 628 F.2d 549 (9th Cir. 1980). We also note that Fed. R. Crim. P. 12(e) allowed the district court to defer its ruling on the motion to suppress until trial testimony was heard

 6

Because Mathnay consented to the subsequent search at the police station, and does not now challenge the validity of that consent, we do not need to address the legality of the search

 7

The government also urges us to distinguish the holding in Chatman from what they regard as dicta. This argument was recently rejected in United States v. Harkey, 890 F.2d 1082 (9th Cir. 1989)

 8

We need not address Mathnay's constitutional challenges to the ACCA