United States v. Johnson ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8179
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SKIRVIN GEORGE JOHNSON,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
( February 28, 1994 )
Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit
Judges.
POLITZ, Chief Judge:
Skirvin George Johnson appeals his convictions for theft from
a federally funded program, 18 U.S.C. § 666, and money laundering,
18 U.S.C. § 1956(a)(1)(A)(1). For the reasons assigned we vacate
and remand for a new trial.
Background
From October 1984 to June 1988 Johnson was employed by the
City of Phoenix as a loan officer in the Community Development
Department which typically funded block grants from HUD to minority
businesses. In July 1988 Johnson went to work for the City of
Austin as Deputy Director of the Planning and Economic Development
Department, acting as a servicing officer in loan and grant
programs operated primarily with funds provided by HUD. During
Johnson's tenure with the City of Phoenix he made four suspicious
loans which, upon investigation, served as the basis for an Arizona
indictment and issuance of an Arizona arrest warrant. While
working for the City of Austin it appeared that Johnson authorized
another suspicious loan to Hillary Richard Wright Industries, Inc.
(HRW). It was alleged that money from that loan was used to pay off
some of the suspicious Phoenix loans. The convictions which are
the subject of this appeal pertain to alleged misappropriations
while Johnson was working for the City of Austin.
On May 16, 1990, Phoenix police officer Ron Sterrett,
accompanied by two Austin police officers and an Austin detective
sergeant, executed an Arizona arrest warrant on Johnson at his
place of employment with the City of Austin. Johnson was alone
when Officer Sterrett walked in and informed him that he was under
arrest based upon charges of fraudulent conduct related to his
employment with the City of Phoenix. Johnson was told to sit down
at his desk but got up two or three times. Officer Sterrett
testified on direct examination at the suppression hearing that
"After that situation was resolved and Mr. Johnson stayed in his
chair, we conducted a cursory search in the office and obtained
some evidence."
The office was approximately ten feet by twelve feet and
2
contained Johnson's work desk, a smaller desk, a computer terminal,
filing cabinets, and two chairs located near the office door.
Officer Sterrett noticed papers on top of Johnson's desk and
Johnson's briefcase on top of one of the chairs located
approximately eight feet from where Johnson was sitting. He also
saw a checkbook cover in the briefcase but could not tell if it
related to the Phoenix case without removing it from the briefcase.
He seized checks, bank account registers, business cards, wallets,
an empty envelope, and other documents found in the briefcase. No
weapons were found. The officer candidly testified that he looked
through the briefcase because he thought he would find evidence
relating to the Phoenix charges. Thereafter he searched the top
of Johnson's desk, seizing an Austin memorandum which contained
Johnson's handwriting sample, and then methodically searched the
filing cabinets and a coat hanging on a coat rack.
Johnson's arrest and the search of his office lasted between
20 and 30 minutes. Johnson was not handcuffed while in his office
nor was his clothing or body searched for weapons. At least one
police officer remained behind Johnson while Officer Sterrett
searched his office and briefcase, and the four officers remained
in the office, watching Johnson, during the entire period. Officer
Sterrett candidly acknowledged that he did not have probable cause
to search Johnson or his office and that he had no reason to
believe that Johnson would resist arrest, have a weapon, or try to
destroy evidence. Officer Sterrett stated that searching the
briefcase and other areas of the office was just "good police
3
work."
Johnson was transported to the Austin Police Department where
Officer Sterrett advised him of his Miranda1 rights. Although
Johnson claimed he requested an attorney, Officer Sterrett contends
that Johnson's request for counsel was limited to a desire to
discuss his immigration status. Thereafter Officer Sterrett
interrogated Johnson and elicited responses pertaining to the
Phoenix charges.
When the City Auditor became aware of Johnson's arrest she
assigned Larry Anderson to investigate the Austin loan files to
determine whether Johnson had misappropriated any Austin funds. On
the day of the arrest Anderson and his superior surveyed Johnson's
office to determine the number of auditors needed to inspect the
files. Anderson and several auditors returned the next day and
found seven computer disks, including one marked "HRW," inside a
folder near Johnson's computer. Anderson made a printout of the
disc and discovered incriminating letters from Johnson about some
Phoenix loans and HRW's articles of incorporation. Anderson
testified that when he entered Johnson's office he was not acting
on behalf of the police or any other law enforcement agency but,
rather, was acting upon direction from the City Auditor.
Johnson was charged in a three-count indictment with theft
from a federally funded program in violation of 18 U.S.C. § 666 and
two counts of money laundering in violation of 18 U.S.C. §
1956(a)(1)(A)(1), and was convicted. The district court imposed
1
384 U.S. 436 (1966).
4
three concurrent 60-month terms of imprisonment, 3 years supervised
release, a $143,499 fine, restitution in the amount of $190,998.11
plus interest, and $150 special assessment. Johnson timely
appealed.
Analysis
Johnson raises seven points on appeal, three of which involve
the denial of his motion to suppress evidence. On appeal from the
denial of a motion to suppress we review the district court's
factual findings under the clearly erroneous standard and its
conclusions of law de novo.2 Johnson first maintains that the
district court erred in denying his motion to suppress evidence
seized during the search of his Austin office. Specifically,
Johnson claims that the search of his briefcase and desk exceeded
the scope of a search incident to arrest. As the district court
correctly noted, Chimel v. California3 is the controlling
authority. We disagree, however, with the district court's
application of the Chimel teachings.
In Chimel, the Supreme Court held that a search incident to an
arrest is a reasonable search permitted by the fourth amendment,
even if the police do not have a search warrant.4 In a search
incident to arrest, the police may search the arrestee's person and
"the area 'within his immediate control' --construing that phrase
2
United States v. Diaz, 977 F.2d 163 (5th Cir. 1992).
3
395 U.S. 752 (1969).
4
Id. at 762-63.
5
to mean the area from within which he might gain possession of a
weapon or destructible evidence."5 Johnson was approximately eight
feet away from his briefcase, sitting in his chair with at least
one police officer standing behind him and three other officers in
the room. The testimony by Officer Sterrett makes clear that he
did not think that Johnson might gain possession of a weapon or
destroy any evidence in the briefcase. Johnson was not
handcuffed.6 Although the record indicates that Johnson stood up
two or three times, Officer Sterrett never felt threatened or
believed that Johnson was about to destroy evidence; Officer
Sterrett was concerned only with having Johnson sit down so that he
could proceed with his search of the office. More importantly, at
the time of both the arrest and search, the briefcase was not
within Johnson's area of immediate control.
An illuminating statement was made by Officer Sterrett in
response to defense counsel's question about his search of the
briefcase. Officer Sterrett responded, "When I found a checkbook
in there and opened it up, I believed that there could be other
evidence in the briefcase." Officer Sterrett was in search of
relevant evidence. The fourth amendment did not enter into the
equation. He conducted precisely the type of generalized,
warrantless search prohibited by Chimel. The Supreme Court there
5
Id. at 763.
6
United States v. Griffith, 537 F.2d 900, 904 (7th Cir. 1976)
(finding that the failure to handcuff defendant and allowing him to
walk around the room vitiated any contrived fear that defendant
would resist arrest or destroy evidence).
6
stated:
After arresting a man in his house, to rummage at will
among his papers in search of whatever will convict him,
appears to us to be indistinguishable from what might be
done under a general warrant; indeed, the warrant would
give more protection, for presumably it must be issued by
a magistrate. True, by hypothesis the power would not
exist, if the supposed offender were not found on the
premises; but it is small consolation to know that one's
papers are safe only so long as one is not at home.7
The same rationale applies to an office search. Such a callous
disregard for the fourth amendment cannot be countenanced.
As the Supreme Court acknowledged in Chimel, "[t]he search
here went far beyond the petitioner's person and the area from
within which he might have obtained either a weapon or something
that could have been used as evidence against him."8 Indeed, the
search conducted by Officer Sterrett was never purported to be a
search incident to arrest. To the very contrary, Officer Sterrett
directly refuted those purposes.9 Officer Sterrett never searched
7
Chimel, 395 U.S. at 767-68 (quoting United States v.
Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926)) (emphasis added).
8
Chimel, 395 U.S. at 768.
9
Although United States v. Robinson provides that the
"authority to search the person incident to a lawful custodial
arrest, while based upon the need to disarm and to discover
evidence, does not depend on what a court may later decide was the
probability in a particular arrest situation that weapons or
evidence would in fact be found upon the person of the suspect,"
414 U.S. 218, 235 (1973), and that rationale was extended to
searches within an arrestee's area of immediate control in New York
v. Belton, 453 U.S. 454, 461 (1981), see United States v. Johnson,
846 F.2d 279, 282 (5th Cir.), cert. denied, 488 U.S. 995 (1988),
Officer Sterrett's sworn statements leave us without doubt that the
purposes were never served. Thus an inquiry into the probability
that the purposes were being served is unnecessary in light of the
record and Supreme Court precedent and unnecessary for resolution
of this case.
7
Johnson's person, nor did he search the area within Johnson's
immediate control. Instead, Officer Sterrett proceeded to conduct
a search of the office for relevant evidence relating to the
Phoenix charges. Contrary to Officer Sterrett's stated
observation, this was not "good police work" but, rather, was a
search in blatant contravention of the fourth amendment.10
We decline the government's request to extend New York v.
Belton11 to office searches. Belton makes clear that its holding
is limited to its facts and merely serves as an explication of
Chimel with respect to interior searches of an automobile.12 The
government's citation to our decision in United States v. Johnson,13
is likewise not persuasive; that case is factually distinct. In
Johnson, we upheld the search and seizure of a zipper-type
briefcase on a desk between postal inspectors and a post office
employee because it was "beyond doubt that the briefcase was within
[the employee's] reaching distance, and, therefore, under his
10
This is not to say that Officer Sterrett's improper intent
in pursuing the search incident to arrest would invalidate an
otherwise valid search. See United States v. Causey, 834 F.2d 1179
(5th Cir. 1987). Here, the search was invalid because it occurred
outside the area within Johnson's immediate control.
11
453 U.S. 454 (1981).
12
See Belton, 453 U.S. at 460 n.3:
Our holding today does no more than determine the meaning
of Chimel's principles in this particular and problematic
content. It in no way alters the fundamental principles
established in the Chimel case regarding the basic scope
of searches incident to lawful custodial arrests.
13
846 F.2d 279 (5th Cir.), cert. denied, 488 U.S. 995 (1988).
8
immediate control."14 Here the record makes clear that at the time
of the arrest and search Skirvin Johnson was approximately eight
feet away from his briefcase, sitting in his chair with at least
one police officer standing behind him and three other police
officers around him. The briefcase was beyond Skirvin Johnson's
immediate control, and thus the motion to suppress evidence
obtained from the briefcase should have been granted.15 We
conclude, however, that the Austin memorandum found on top of
Johnson's desk was within Johnson's area of immediate control and
properly was not suppressed.
Secondly, Johnson claims that the district court erred in
denying his motion to suppress his inculpatory custodial statements
made after he invoked his right to counsel. The government
maintains that after Johnson was given the Miranda warnings he
indicated a desire to consult with an attorney regarding
immigration only; that at no time did he indicate he wished to
remain silent and to be free of interrogation until an attorney was
present. Johnson argues that consultation about his immigration
status necessarily would involve consultation about the criminal
offense and vice versa. This argument fails to persuade. The
district court found for the government on this issue and that
14
Id. at 283.
15
The government cites United States v. De Leon-Reyna, 930 F.2d
396 (5th Cir. 1991)(en banc) for the alternative proposition that
this search fell within the good faith exception to a warrantless
search. Good faith is not an apt description of what occurred in
the case at bar; thus we find the government's contention
meritless.
9
finding must be accepted unless it is clearly erroneous or
influenced by an incorrect view of the law.16 We find no clear
error on the part of the district court in its findings that
Johnson only invoked his right to counsel with respect to his
immigration status. We remand to the district court to consider,
however, whether any statements concerning the Phoenix-related
documents seized from Johnson's briefcase are fruit of the
poisonous tree.17
Johnson also contends that the district court erred in denying
his motion to suppress computer disks seized from his office.
Johnson maintains that seizure of his personal computer disks was
unreasonable because the disks were not physically part of the City
of Austin files nor were they in the cabinet with the files.
Johnson also maintains that the reference to "HRW" on one of the
disks did not support the inference that it would contain some
portion of the HRW loan file and that seizure of the other disks
which were without any reference to HRW and printing out their
contents was unreasonable. These arguments are unconvincing.
In O'Connor v. Ortega18 the Supreme Court held that "public
employer intrusions on the constitutionally protected privacy
interests of government employees for non-investigatory, work-
related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness
16
United States v. Gallo, 927 F.2d 815 (5th Cir. 1991).
17
Brown v. Illinois, 422 U.S. 590 (1975).
18
480 U.S. 709 (1987).
10
under all the circumstances."19 Both the inception and the scope
of the intrusion must be reasonable.20 We find that the search of
Johnson's office by Auditor Anderson was the result of an internal
investigation by the City of Austin directed at uncovering work-
related employee misconduct and was therefore reasonable under the
circumstances. No law enforcement agency requested the Audit
Department to search Johnson's office. It was reasonable to infer
that the disk marked "HRW" would contain information relating to
the HRW loan file and that the other disks would contain
information involving other loans administered by Johnson.
Because of our resolution of the first three issues regarding
Johnson's motion to suppress, we do not address the asserted errors
regarding Johnson's motion in limine to exclude evidence of the
four Phoenix loans, the challenge to the sufficiency of the
evidence, denial of Johnson's motion for continuance, and alleged
improper remarks by the prosecutor during closing argument.
The convictions are VACATED and the matter is REMANDED for
further proceedings consistent herewith.
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
The majority concludes that "[t]he briefcase was beyond
Skirvin Johnson's immediate control, and thus the motion to
19
Id. at 725-26.
20
Id. at 726.
11
suppress evidence obtained from the briefcase should have been
granted." Because this conclusion rests on a selective reading of
parts of Officer Sterrett's testimony,21 I cannot concur that the
district court's finding))that the briefcase five to six feet from
where Johnson was sitting was within Johnson's immediate
control))was clearly erroneous.22
This was not a situation where "law enforcement officers have
reduced property not immediately associated with the person of the
arrestee to their exclusive control, and there is no longer any
danger that the arrestee might gain access to the property to seize
a weapon or destroy evidence." United States v. Chadwick, 433 U.S.
1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538 (1977). Officer
Sterrett testified that: (1) Johnson was not handcuffed; (2)
Johnson got up two or three times from his chair; and (3) "when
[Johnson] got up, he was right next to the briefcase. He could
have put his hand in the briefcase." Second Supplemental Record on
Appeal at 38. Based on these facts))and that the briefcase was
only five or six feet away from Johnson))the district court's
finding that the briefcase was within Johnson's immediate control
was certainly plausible.
"[A]n appellate court is not free to reweigh the evidence or
21
For example, the majority states that "Johnson was approximately
eight feet away from his briefcase." Sterrett testified, however, that Johnson
was six to eight feet away; Johnson testified that he was five to six feet away.
Whether Sterrett may have had an improper intent in searching the briefcase is,
as the majority concedes, irrelevant to the issue of immediate control.
22
See Amadeo v. Zant, 486 U.S. 214, 223, 108 S. Ct. 1771, 1777, 100 L.
Ed. 2d 249 (1988) ("If the district court's account of the evidence is plausible
in light of the record viewed in its entirety, [this Court] may not reverse it
even though convinced that had [we] been sitting as the trier of fact, [we] would
have weighed the evidence differently." (attribution omitted)).
to . . . substitute for the district court's reasonable factual
inferences from the evidence other inferences that the reviewing
court may regard as more reasonable." Glass v. Petro-Tex Chem.
Corp., 757 F.2d 1554, 1559 (5th Cir. 1985) (citing Pullman-Standard
v. Swint, 456 U.S. 273, 284, 102 S. Ct. 1781, 1788, 72 L. Ed. 2d 66
(1982)). Accordingly, I respectfully dissent from that part
of the majority's opinion. See Chimel v. California, 395 U.S. 752,
763, 89 S. Ct. 2034, 2040, ___ L. Ed. 2d ___ (1969); United States
v. Johnson, 846 F.2d 279, 283 (5th Cir. 1988).
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