United States v. Hope ( 1997 )


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  •                        UNITED STATES COURT OF APPEALS
    
                                    FOR THE FIFTH CIRCUIT
    
    
    
                                           No. 95-11053
    
    
    
    
    UNITED STATES OF AMERICA,
                                                                             Plaintiff-Appellee,
    
                                              versus
    
    DENNIS WAYNE HOPE,
                                                                           Defendant-Appellant.
    
    
    
                            Appeal from the United States District Court
                                for the Northern District of Texas
    
    
                                        December 10, 1996
    Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.
    
    POLITZ, Chief Judge:
    
             Dennis Wayne Hope appeals his convictions for carjacking,1 robbery,2 using
    
    a firearm during the commission of a crime of violence,3 and illegally possessing
    
    
    
       1
           18 U.S.C. § 2119.
       2
           18 U.S.C. § 1951(a).
       3
           18 U.S.C. § 924(c)(1).
    a firearm.4 At trial he admitted to all charges except the two firearm counts but he
    
    appeals all counts, contending that he did not have a fair trial because he was
    
    shackled in the presence of the jury and because the prosecution made improper
    
    statements in the presence of the jury. In addition, the firearm counts were
    
    challenged for being based on evidence which should have been suppressed as the
    
    product of an illegal inventory search. Concluding that Hope was not denied a fair
    
    trial we affirm his convictions on the six counts which he admitted. Concluding
    
    that the court erred in admitting evidence obtained in an illegal inventory search
    
    of Hope’s vehicle, we reverse the convictions on the two firearm counts.
    
                                           Background
    
             On November 26, 1994 Hope escaped from Texas state prison where he was
    
    serving an 80-year sentence for aggravated robbery. Several days later he stole a
    
    car at knife point from 83-year-old Elvin Mitchell. In the process, Hope severely
    
    cut Mitchell by yanking the knife away when, in his fright, Mitchell grabbed the
    
    blade. After dropping Mitchell off bleeding on the side of the road, Hope set out
    
    to rob the same stores he previously had been convicted of robbing.
    
             Between December 1, 1994 and January 16, 1995 Hope robbed four
    
    Albertson’s grocery stores in the Dallas area. He admits to the robberies and
    
       4
           18 U.S.C. §§ 922(g)(1) and 924(e)(1).
                                                   2
    admits to using a gun in the commission of one. During the course of his crime
    
    spree he set up camp in Memphis, Tennessee at a boarding house owned by James
    
    Money. On February 2, 1995 Texas Department of Criminal Justice officers, FBI
    
    agents, and Memphis police officers arrested Hope at the Denim and Diamonds
    
    Nightclub in Memphis. While conducting an inventory search of a Jaguar driven
    
    by Hope to the nightclub, Memphis police officers found a loaded 9 millimeter
    
    Taurus handgun and a police scanner.
    
          The following day, two officers of the Texas Department of Criminal Justice
    
    determined where Hope had been staying and proceeded to Money’s boarding
    
    house. Three Memphis police officers also arrived to assist with the investigation.
    
    While the officers were there, Hope telephoned Money from prison and told him
    
    not to allow the police to search his room or his Honda CRX that was parked on the
    
    front lawn. Money, however, consented to a search of Hope’s room and requested
    
    that the police tow the car off his property. The police made a warrantless search
    
    of the room and found a loaded .45 caliber handgun and $14,000. The Memphis
    
    police officers inventoried and impounded the Honda, discovering partially full
    
    boxes of 9 millimeter and .25 caliber ammunition, a BB gun with the barrel bored
    
    out, and other miscellaneous items. They turned over this evidence to the Texas
    
    officers.
    
                                            3
           At the pretrial suppression hearing the district court excluded the evidence
    
    found in Hope’s room but denied the motion to suppress the objects found in the
    
    Honda. During the course of the trial, the government introduced into evidence the
    
    contents of the Honda. Hope’s counsel did not object to the introduction of the .25
    
    caliber ammunition and stated “no objection” when the other items were offered.
    
    Hope timely appealed.
    
                                            Analysis
    
           1. Wrongfully seized evidence
    
           We first address Hope’s contention that the district court erred in failing to
    
    suppress the items obtained in the search of the Honda. Hope claims that the car
    
    was impounded illegally and inventoried in violation of the fourth amendment. We
    
    review the district court’s fact finding for clear error and its conclusion as to the
    
    reasonableness of the search de novo,5 reviewing the evidence at both the
    
    suppression hearing and trial in the light most favorable to the prevailing party. 6
    
           The police may impound vehicles for public safety and community
    
    caretaking.7 Because Hope would be returned to serve his 80-year sentence in
    
    
       5
        United States v. Andrews, 
    22 F.3d 1328
     (5th Cir.), cert. denied, 
    115 S. Ct. 346
     (1994).
       6
        United States v. Ponce, 
    8 F.3d 989
     (5th Cir. 1993).
       7
        South Dakota v. Opperman, 
    428 U.S. 364
     (1976).
                                                4
    Texas state prison, the police acted properly in complying with Money’s request
    
    to remove the car from his property. Hope had no right to leave his car on Money’s
    
    property indefinitely while he served his prison sentence.8
    
           An inventory search is reasonable and, thus, not violative of the fourth
    
    amendment if it is conducted pursuant to standardized regulations and procedures
    
    that are consistent with (i) protecting the property of the vehicle’s owner,
    
    (ii) protecting the police against claims or disputes over lost or stolen property, and
    
    (iii) protecting the police from danger.9 At the pretrial suppression hearing the
    
    district court ruled that the inventory search of the Honda was valid because the
    
    only evidence before the court was the testimony of an officer that he believed an
    
    inventory search was performed. We cannot accept the district court’s finding
    
    because, as a matter of law, the officer’s testimony was insufficient to prove that
    
    the police had in fact followed standard procedures or guidelines in conducting the
    
    inventory search of the Honda. We have held that a police officer’s unrebutted
    
    
    
       8
        See United States v. Gravitt, 
    484 F.2d 375
     (5th Cir. 1973) (explaining that the
    expectation that owners of the car would be in custody made it reasonable to seize and
    conduct inventory search of car), cert. denied, 
    414 U.S. 1135
     (1974); United States v.
    Kelehar, 
    470 F.2d 176
     (5th Cir. 1972) (holding that police could impound arrestee’s car
    located in restaurant parking lot with the consent of manager).
       9
        Opperman; United States v. Privett, 
    68 F.3d 101
     (5th Cir. 1995), cert. denied, 
    116 S. Ct. 1862
     (1996).
                                              5
    testimony that he followed standard procedures was sufficient to validate an
    
    inventory search.10 But even that minimal threshold was not met in the case at bar
    
    where we find no testimony that referred to Memphis police department guidelines,
    
    or that they were followed, but only the statement by the officer that, “I believe the
    
    Memphis police did inventory the vehicle.”
    
            The record is devoid of any evidence that standard inventory procedures were
    
    in place and were, in fact, followed by the Memphis police when they searched the
    
    Honda. The searching officer turned over the evidence found to the Texas officers
    
    and did not bag and tag same as the search procedures prescribed. It is beyond
    
    serious debate that the prosecution bears the burden of establishing that any
    
    evidence submitted, which resulted from an inventory search, was the result of a
    
    search conducted in accordance with known, established police procedures. That
    
    did not occur herein and the evidence found in the search of the Honda should not
    
    have been admitted in evidence.
    
            The government maintains that Hope’s attorney waived the right to object
    
    to the evidence by stating “no objection” when the items were offered at trial. We
    
    have held, however, that where there has been a pretrial motion to suppress, the
    
    
    
       10
        United States v. Bullock, 
    71 F.3d 171
     (5th Cir. 1995), cert. denied, 
    116 S. Ct. 1365
    (1996).
                                              6
    “failure to reiterate the objection [does] not waive it.”11 Nor may the mere stating
    
    “no objection” be taken as an affirmative waiver absent convincing indication that
    
    counsel was doing more than just recognizing that the district court had already
    
    ruled on the issue in limine.12
    
            Finally, the government contends that the illegal search was harmless error.
    
    A conviction will be reversed only if the tainted evidence substantially affected the
    
    verdict.13 As to the first firearm count, the government asserts that the exclusion
    
    of the .25 caliber ammunition would have had no substantial impact on the verdict.
    
    We are not persuaded. The only physical evidence linking Hope to the use of a
    
    small caliber, semiautomatic handgun, was the seized ammunition.
    
            Nor can we say that the use of the BB gun seized from the Honda, which
    
    factored heavily into impeaching Hope, was not significant evidence in the case as
    
    presented. We cannot conclude that the use of that illegally seized evidence was
    
    merely harmless error.
    
    
       11
        United States v. Cruz, 
    581 F.2d 535
    , 542 (5th Cir. 1978), overruled on other grounds
    by United States v. Causey, 
    834 F.2d 1179
     (5th Cir. 1987).
       12
         Compare United States v. Mireles, 
    570 F.2d 1287
     (5th Cir. 1978) (holding that where
    court had not yet ruled on motion to suppress and defendant’s counsel stated “no objection”
    to previously objected-to evidence, defendant was deemed to have abandoned the motion to
    suppress).
       13
        United States v. Gadison, 
    8 F.3d 186
     (5th Cir. 1993).
                                                7
            2. Shackling
    
            Hope maintains that the district court deprived him of a fair trial by shackling
    
    him throughout the trial. We review a district court’s decision to shackle a
    
    defendant for abuse of discretion.14
    
            The Supreme Court has labeled shackling an inherently prejudicial practice
    
    that should be allowed only if it is justified by an essential state interest.15 We have
    
    elaborated on the essential interests that justify shackling a defendant:
    
            While a criminal defendant is entitled to the physical indicia of
            innocence, a court is justified in ordering him handcuffed and shackled
            during trial where there is a danger of escape or injury to the jury,
            counsel, or other trial participants.16
    
    We have also held that the district court is required to state reasons on the record,
    
    outside the presence of the jury, why it has chosen to shackle a defendant. 17
    
            In the instant case, defense counsel objected to the shackling of Hope at the
    
    beginning of the trial. The objection was overruled. The district court assigned no
    
    reasons. This failure to assign reasons was error, but under the specific facts of this
    
       14
        United States v. Weeks, 
    919 F.2d 248
     (5th Cir. 1990), cert. denied, 
    499 U.S. 954
    (1991).
       15
        Holbrook v. Flynn, 
    475 U.S. 560
     (1986).
       16
         Wilkerson v. Whitley, 
    16 F.3d 64
     (5th Cir.), rehearing en banc on other grounds, 
    28 F.3d 498
     (5th Cir. 1994), cert. denied, 
    115 S. Ct. 740
     (1995).
       17
        United States v. Theriault, 
    531 F.2d 281
     (5th Cir.), cert. denied, 
    429 U.S. 898
     (1976).
                                                8
    case we need not remand for the assignment of those reasons. They are readily
    
    apparent to us from the record. Hope not only had been sentenced previously for
    
    aggravated robbery, but he was an escapee from prison, thus posing both the threat
    
    of injury to individuals in the courtroom and the threat of escape. We perceive no
    
    reversible error in the trial court’s decision to shackle Hope.
    
          3. Statements by the prosecutor
    
          Hope challenges certain questions asked and statements made by the
    
    prosecutor, claiming that they were improper. Our review of the record, in light of
    
    the contention made in the brief, discloses no merit in this assignment of error.
    
    
    
          The convictions and sentences on all counts, other than Counts Three and
    
    Six, are AFFIRMED; the convictions on Counts Three and Six are REVERSED
    
    and the sentences thereon are VACATED.
    
    
    
    
                                             9