United States v. Kimball

842 F. Supp. 462, 1994 U.S. Dist. LEXIS 943, 1994 WL 26952
CourtDistrict Court, D. Kansas
DecidedJanuary 14, 1994
DocketCrim. A. No. 93-10063-01
StatusPublished

This text of 842 F. Supp. 462 (United States v. Kimball) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kimball, 842 F. Supp. 462, 1994 U.S. Dist. LEXIS 943, 1994 WL 26952 (D. Kan. 1994).

Opinion

MEMORANDUM AND ORDER DENYING MOTION TO SUPPRESS

BELOT, District Judge.

Before the court are defendant’s motion to suppress evidence and the government’s response in opposition thereto (Docs. 23 and 25). On December 20, 1993, the court held an evidentiary hearing at which FBI Special Agent Nolan Craig testified. The court is now prepared to rule on defendant’s motion.

On June 28,1993, the First National Bank of Hutchinson, Kansas was robbed by a man who threatened to detonate a bomb. Approximately $165,000 was taken in the robbery. According to an affidavit attached to the Information filed June 30,1993, a private citizen who learned of the robbery on a police scanner photographed defendant carrying a bulging satchel shortly after the bank robbery. Employees of the bank identified defendant from a photo-lineup and, in addition, authorities recovered a notepad from defendant’s motel room which bore an imprint of the note used to threaten bank personnel during the robbery. Other statements in the court file, as well as the testimony of Special Agent Craig, indicate that defendant had been released from the Hutchinson Correctional Facility only a few days prior to the robbery. At the time of his release defendant had a little over $370.

On September 23, 1993, based upon information that defendant would be on an Amtraek train, FBI agents went to the train depot in Albuquerque, New Mexico. The agents had an arrest warrant. They also had information that defendant had a long criminal record and that he threatened to use a bomb in the bank robbery. Although the agents did not have any specific information that defendant would be armed, Special Agent Craig testified that it was standard Bureau procedure to treat as “armed and dangerous” any individual with defendant’s criminal history. Prior to going to the depot, the agents talked with an FBI legal advisor who told them that upon arresting defendant, the agents could search defendant and any luggage in his possession.1

[463]*463The train arrived at the depot and the agents watched defendant disembark. They had photographs of defendant and information that he used various aliases. As defendant stood on the depot platform surrounded by numerous pieces of luggage, the agents approached him and Special Agent Craig placed defendant under arrest. Defendant was handcuffed and patted down. No weapons were found during the pat-down search. Defendant made no efforts to resist arrest or to flee.

While defendant was being arrested, handcuffed and patted down, other FBI agents simultaneously began searching defendant’s luggage for weapons. The agents did not request or receive permission to search. The luggage was not locked and bore identification tags using one of defendant’s aliases. Special Agent Craig testified that even though defendant was in custody and was not resisting arrest, the agents followed the FBI procedure in searching the luggage for weapons. He explained that agents do not know what can happen when an individual is arrested and just because an individual cooperates does not mean that the individual is not searched. Special Agent Craig stated that he had arrested cooperative individuals who nevertheless were found to be carrying weapons. He repeated that the agents knew that the defendant had a long criminal record and that he was accused of robbing a bank by threatening to use a bomb. He said that the agents did not know what defendant might do.

At some time during the arrest sequence, a commotion unrelated to the arrest occurred on the depot platform and defendant was moved to another platform some distance away. The luggage, however, remained in its original position. At the time defendant was moved, the search of the luggage was about over.2

The agents searching the luggage found a large amount of money in a green plastic garbage bag and a large amount of jewelry in several velvet and satin bags. No weapons were found in the luggage. When [464]*464agents later counted the money, it was over $20,000. When the jewelry was discovered, defendant volunteered that it belonged to a “lady friend” in California.3

Following defendant’s arrest at the depot, the agents took defendant downtown and made an inventory of the items found on his person. When defendant’s billfold was inventoried, it was found to contain a five hundred and a one thousand dollar bill. A day or so later, defendant’s luggage was inventoried. Special agent Craig testified that the inventory was not done immediately because of the quantity of items involved.4

Defendant contends that all evidence seized from his luggage must be suppressed because when the luggage was searched, he was already in custody, presented no threat to the arresting officers and was no longer in a position of immediate control over his luggage. Defendant relies on the following cases: Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and United States v. Bonitz, 826 F.2d 954 (10th Cir.1987).

This case involves a presumptively-valid arrest pursuant to a warrant and, indeed, defendant does not challenge the legality of the arrest. In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the court reaffirmed its holding in Chimel v. California, that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have been long considered valid because of the need “to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape” and the need to prevent the concealment or destruction of evidence. Id. at 457, 101 S.Ct. at 2862. The court held that when an officer has made a lawful custodial arrest of an occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile and the contents of any containers found within the passenger compartment if the containers are within reach of the person arrested. The court stated:

Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

Id. at 461, 101 S.Ct. at 2864.

New York v. Belton involved the search of containers found in the passenger compartment of an automobile and was followed in United States v. Cotton, 751 F.2d 1146 (10th Cir.1985). Nevertheless, the rationale of Belton has been applied to searches of luggage within the immediate control of a person arrested at a bus depot.

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Related

Wong Sun v. United States
371 U.S. 471 (Supreme Court, 1963)
Chimel v. California
395 U.S. 752 (Supreme Court, 1969)
United States v. Chadwick
433 U.S. 1 (Supreme Court, 1977)
Arkansas v. Sanders
442 U.S. 753 (Supreme Court, 1979)
New York v. Belton
453 U.S. 454 (Supreme Court, 1981)
Colorado v. Bertine
479 U.S. 367 (Supreme Court, 1987)
Florida v. Wells
495 U.S. 1 (Supreme Court, 1990)
United States v. Ingo Grill
484 F.2d 990 (Fifth Circuit, 1973)
United States v. Willie C. Cotton, Jr.
751 F.2d 1146 (Tenth Circuit, 1985)
United States v. George Robert Gorski
852 F.2d 692 (Second Circuit, 1988)
United States v. Julian Jorge Morales
923 F.2d 621 (Eighth Circuit, 1991)
United States v. Ruben Perea
986 F.2d 633 (Second Circuit, 1993)

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Bluebook (online)
842 F. Supp. 462, 1994 U.S. Dist. LEXIS 943, 1994 WL 26952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kimball-ksd-1994.