United States of America, Plaintiff-Appellee-Cross-Appellant v. Felix Nicholas Medina, Defendant-Appellant-Cross-Appellee

181 F.3d 1078, 99 Cal. Daily Op. Serv. 4887, 99 Daily Journal DAR 6307, 1999 U.S. App. LEXIS 13673, 1999 WL 415346

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 1999
• Docket: 97-50148, 97-50149
• Status: Published

Opinions

LEAVY, Senior Circuit Judge:

Felix Nicholas Medina appeals his conviction for armed bank robbery and using a firearm while committing a violent crime in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c). Medina contends that the district court erred in denying his request for an evidentiary hearing to determine whether evidence was lawfully seized. The government cross-appeals, arguing that the district court erred by imposing concurrent rather than consecutive sentences for six of Medina’s ten convictions under 18 U.S.C. § 924(c). We affirm the district court’s denial of an evidentiary hearing, reverse its imposition of concurrent sentences, and remand for resentenc-ing.

I.

In 1990, Medina pled guilty to armed bank robbery and was sentenced to 63 months in prison. After his release from prison, he was deported to Mexico. However, within months of deportation, Medina returned to the United States and embarked on a bank robbery spree for which he now stands convicted.

Medina committed ten separate armed bank robberies in an eight-month period between September 1995, and May 1996. Prior to trial, Medina moved to suppress evidence which included a .25 caliber handgun and a .38 caliber handgun. These two guns linked Medina to at least six of the ten bank robberies. The guns had been seized in two separate searches as described below.

In December 1995, Medina checked his luggage at a ticket counter at the Los Angeles airport. His luggage was x-rayed and a handgun was discovered. Medina was paged to return to the ticket counter, but he did not return. The airport police removed a .25 caliber handgun from Medina’s luggage and turned it over to the Los Angeles Police Department.

About one month later, in January 1996, Medina was stopped by the Los Angeles police because the registration tags on the car he was driving had apparently expired. Because Medina was unable to provide proof of a driver’s license, the car was impounded and searched. During the search, the police found a .38 caliber revolver. This revolver was booked into evidence at the Los Angeles Police Department. Medina was arrested and charged with being a felon in possession of a firearm. Those charges were dismissed after a municipal court judge granted Medina’s motion to suppress. The judge determined that the police did not have reasonable suspicion to stop the ear Medina was driving. The revolver, however, remained in the custody of the Los Angeles police.

About four months later, in May 1996, Medina was identified by federal investigators as a possible suspect in a string of armed bank robberies. One of the robbery victims had described a car and gun similar to the car and gun involved in Medina’s January 1996, traffic stop. Following this lead, the federal investigators retrieved Medina’s .38 caliber revolver which was still in the custody of the Los Angeles police. The federal investigators conducted ballistics tests and discovered that the revolver was the gun that had fired a shot in one of the robberies. Medina was arrested on the bank robbery charges on May 29,1996.

After his arrest, Medina described the various guns he had used in the bank robberies. He told the investigators that he had lost the .25 caliber gun when he had tried to take it on an airplane flight. The investigators followed up on this information and retrieved the .25 caliber gun which was still in the custody of the Los Angeles police.

At the hearing on Medina’s motion to suppress, Medina argued that the two searches were warrantless and without probable cause. He requested an eviden-tiary hearing on the legality of the searches. The district court denied the motion to suppress without holding an evi-dentiary hearing and without a determination whether the searches were lawful. The district court reasoned that even if the guns had been unlawfully seized, they were not subject to suppression because at the time of the searches, the local law enforcement authorities did not have the federal investigation within their “zone of primary interest.” Medina contends that this ruling is in error under Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

II.

The question presented is whether the Fourth Amendment requires an assessment of the legality of the two searches to determine the admissibility of the evidence in Medina’s bank robbery trial. We reject Medina’s argument that Elkins requires such an assessment.

In Elkins, state officials obtained a search warrant based on information that the defendants possessed obscene motion pictures. The search revealed no obscene pictures, but wiretap paraphernalia was found and seized. The defendants were indicted in state court on wiretap charges, but the state court held the search unlawful and the evidence inadmissible, so the indictment was dismissed. Shortly thereafter, federal officers used the wiretap-evidence to bring federal wiretap charges against the defendants. The Supreme Court rejected the so-called “silver platter doctrine,”¹ and held that “evidence, obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” El-kins, 364 U.S. at 223-24,.80 S.Ct. 1437.

Medina argues that Elkins mandates an assessment of the legality of the two searches because the searches were conducted by state and local officials and the evidence seized was subsequently used in a federal criminal trial. Medina overextends the Elkins holding.

In Elkins, the Supreme Court invoked its “supervisory ppwer over the administration of criminal justice in the federal courts” to exclude evidence obtained in an unlawful state search. Elkins, 364 U.S. at 216, 80 S.Ct. 1437. The Court stated that the test of the legality of the state search “is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Elkins, 364 U.S. at 223-24, 80 S.Ct. 1437. One year later, the Court decided Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Edüd 1081 (1961), which established the exclusionary rale as a constitutionally required remedy for. unlawful searches at both the state and federal level.² Thus, under Mapp, the identity of the sovereign (state, or federal) conducting the search is irrelevant to the application of the exclusionary rule. Nevertheless, the Elkins holding rejecting the “silver platter doctrine” is still valid. See United States v. Perez-Castro, 606 F.2d 251, 252 (9th Cir.1979) (“The Government may not successfully assert that the illegal act was done'by state or local officers and therefore the statements subsequently taken are admissible in a federal prosecution, without concern as to the method by which they were obtained.” (citing Elkins, 364 U.S. at 223, 80 S.Ct. 1437)). Stated another way, El-kins continues to forbid the federal government from making the argument that another sovereign conducted the search, therefore it can ignore the methods by which the search was conducted.

The Supreme Court has stated that the exclusionary rule is a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); accord, United States v. Raftery, 534 F.2d 854, 856-57 (9th Cir.1976). See also United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978) (“Recognizing not only the costs, which are often substantial, of the exclusionary rule, we have said that ‘application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,’ [citing Calandra].”). Therefore, the inquiry is whether the connection between the searches and the instant proceeding is such that suppression of the evidence would result in appreciable deterrence. See United States v. Basinger, 60 F.3d 1400, 1407 (9th Cir.1995); United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir.1984).

The officers who performed the airport search and the vehicle search in the instant case had no knowledge or anticipation of Medina’s subsequent prosecution for armed bank robbery. In other words, they did not have the bank robbery charges within their zone of primary interest. See Lopez-Martinez, 725 F.2d at 476. There is no suggestion of collusion between the officers who conducted the searches and the investigators who subsequently located the unclaimed guns. See Basinger, 60 F.3d at 1407 (“Here, as in Lopez-Martinez, ‘there is no suggestion ... of any bad faith or collusion’ by the officers involved in the 1991 and the instant cases; ‘the [officer] in [1991] did not have the [instant] proceedings in [his] zone of primary interest’ ” (omitting additional citations)). In this case, the record indicates that it was the thorough investigative work by the investigators (rather than collusion with the officers who conducted the searches) which led them to the discovery of the guns which were still in the custody of the Los Angeles police.

Absent any threshold showing of a connection or “nexus” in time, place, or purpose between the searches and the subsequent prosecution, there is no appreciable deterrent purpose in suppressing the evidence.³ Moreover, it is irrelevant to this inquiry whether the evidence is seized by one sovereign and utilized by the same or a different sovereign. See Lopez-Martinez, 725 F.2d at 476 (Statements made in a 1974 arrest by federal officers were admissible in a 1982 federal trial because the agents in 1974 did not have the later 1982 proceedings in their “zone of primary interest.”). Accordingly, because there is no showing that the officers conducting the airport and traffic searches had the present proceeding within their zone of primary interest, the district court did not err in refusing to hold an evidentiary hearing on the lawfulness of the searches.

III.

In its cross-appeal, the government contends that the district court erred in imposing concurrent sentences for three or more convictions under 18 U.S.C. § 924(c)(1). We agree that the district court erred in the sentencing.

Section 924(c)(1) provides, in relevant part:

Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence ... in which the firearm was used or carried.

The district court interpreted this statute to require a five-year consecutive sentence on the first section 924(c) conviction and a single twenty-year consecutive sentence of all “second or subsequent” section 924(c) convictions. In other words, the district court interpreted the statute to permit concurrent sentences for any third or subsequent conviction under section 924(c). We reject this interpretation because the language of the statute requires the imposition of a twenty-year consecutive sentence for each “second or subsequent” conviction.

The plain language of section 924(c) specifically prohibits concurrent sentences “notwithstanding any other provision of the law.” The Supreme Court held that the language of section 924(c) indicated Congress’s intent to make section 924(c) enhancements run consecutively to all other prison terms, whether state or federal. See United States v. Gonzales, 520 U.S. 1, 11, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997).

Medina argues that section 924(c) only prohibits sentences under that section to run concurrently with non-section 924(c) sentences. We rejected this argument in United States v. Fontanilla, 849 F.2d 1257, 1258 (9th Cir.1988), where we stated, “Nothing in the statute, or its legislative history, indicates one section 924 sentence can be made to run concurrently with another section 924 sentence.” Id.

We AFFIRM the district court’s refusal to hold an evidentiary hearing on the suppression issues, REVERSE the imposition of concurrent section 924(c) sentences, and REMAND for resentencing.

1 . The phrase "silver platter doctrine” was used by Justice Frankfurter in Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), and refers to the procedure whereby evidence illegally seized by state officers could be admitted in federal court so long as federal officers did not participate in the illegal seizure. The state officers were said to hand over the illegally seized evidence on a "silver platter." See United States v. Romero, 585 F.2d 391, 397 n. 6 (9th Cir.1978).

2 . See Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum. L.Rev. 1365, 1379-80 (1983).

3 . The inquiry is similar to the inquiry under the "attenuated basis” exception to the "fruit of the poisonous tree” exclusionary rule. See United States v. Smith, 155 F.3d 1051, 1060 (9th Cir.1998) ("[T]he taint inquiry is more akin to a proximate causation analysis. That is, at some point, even in the event of a direct and unbroken causal chain, the relationship beLween the unlawful search or seizure and the challenged evidence becomes sufficiently weak to dissipate any taint resulting from the original illegality.”); United States v. PerezCastro, 606 F.2d 251, 253 (9th Cir.1979) (statements given by defendant to border patrol agents following an illegal arrest by local police "were not sufficiently attenuated from the arrest to purge them of the taint of the illegal arrest”).