Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

MEMORANDUM^* 

Donald Larry Abbott appeals his conviction, after a jury trial, of armed robbery.

Abbott's first assignment of error was that the court improperly admitted into evidence a gun that was seized from his automobile following a warrantless search.

Approximately one month after the robbery, two police officers noticed an automobile parked on land owned by the Seattle-Tacoma International Airport. The car windows were covered with cardboard. The officers knocked on the window and asked the occupant, Mr. Abbott, to present his driver's license and registration. The officers then called in a criminal history check. When they discovered that Abbott had an extensive criminal record, one of the officers requested permission to search the vehicle for weapons.

Abbott and the United States agree that Abbott initially denied permission to search, and that upon further questioning, he stated that he had a knife in the car but no other weapons. The parties further agree that after further questioning, Abbott agreed to let the officers conduct some sort of search for weapons.

The parties disagree about the scope of Abbott's consent to search. Abbott claims that he gave the officers permission only to retrieve the knife from the glove compartment. The United States asserts that Abbott consented to a general search of the vehicles for weapons. According to the United States, once the defendant admitted having two knives in the vehicle, the officer asked if Abbott would mind "if I take a look?" Abbott replied, "Yeah, sure, go ahead."

The officer then entered the vehicle from the driver's side, leaned across and removed two knives from the glove compartment. While exiting the vehicle, the officer felt what appeared to be a pistol in a cloth bag under the driver's seat. The officer seized the bag and discovered that it contained a pistol. The court received the pistol into evidence.

Abbott argues that the search under the driver's seat and the palpation of the bag exceeded the scope of his consent to search. The question whether a search exceeded the scope of consent is a factual question. The trial judge framed his finding as one of credibility. The only issue at that point was the scope of consent. However, the court made no express finding on the scope of consent. The court merely concluded that the search was valid under both Terry and Portillo.

The officers' knowledge of Abbott's criminal record, combined with Abbott's admission that his car contained weapons, gave the officers reasonable suspicion to check the vehicle for weapons under Terry v. Ohio, 392 U.S. 1 (1968). Under the circumstances, the search of the bag was proper under United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980), cert. denied, 450 U.S. 1043 (1981) (search of bag found in automobile was proper where officer felt something he believed was a gun). The trial judge properly held the evidence admissible as the product of a Terry search.

Accordingly, the ambiguous finding on consent was immaterial and will be disregarded.

Abbott next alleges that an in-court identification by two bank tellers was improperly tainted by an earlier suggestive photo identification.

Approximately one month after the robbery, an FBI agent displayed a montage of six photographs to two bank tellers who had been present and witnessed the robbery. One teller stated that the robber could have been the man in either one of two photographs. One of those photographs was of Abbott. The second teller identified Abbott's photograph as that of the robber.

A pre-trial photographic identification proceeding may be "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). In that case, an identification at trial by a witness who had previously seen the suggestive photograph display would be impermissible. Id.

Abbott alleges that the photo montage was "unfair," and that therefore the court should have excluded evidence of the photo identifications and should not have permitted the tellers to make in-court identifications. However, Abbott has made no specific allegations about why he believes the photo display was unfair.

The district court found no taint in the photo display. The photos were all black and white, and all were of white males. The receipt of the identification evidence was not error.

AFFIRMED.