United States v. Johnson

Opinion

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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