United States v. Bain

UNITED STATES COURT OF APPEALS
Filed 12/27/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 95-6419
v. (D.C. No. CR-95-79-A)
(W.D. Okla.)
LAWRENCE ALAN BAIN,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before EBEL, HOLLOWAY, and HENRY, Circuit Judges.

Defendant Lawrence Bain brings this timely direct appeal from his conviction on four

counts arising from a bank robbery. The charges in the indictment were robbery of a

federally insured financial institution (18 U.S.C. § 2113(a) and (d)); knowingly using and

carrying a firearm during and in relation to commission of a crime of violence (18 U.S.C.

§ 924(c)(1)); possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)); and

knowing possession of an unregistered 12-gauge shotgun having a barrel length less than

*
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. This court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.
18 inches (26 U.S.C. §§ 5841 and 5861(d)). Defendant was convicted on a jury verdict of

guilty on all four counts. Defendant was sentenced to 117 months in prison.

I

Bank IV of Edmond was robbed on May 24, 1995, at about 2:05 p.m. by a man

dressed in a button down shirt over a tee shirt, with his face concealed by a hat, glasses, and

a mask. Witnesses could not even tell the race of the robber because he was so completely

covered, but said that he “sounded” like a white man. The robber had a sawed-off shotgun

and a sack into which he ordered two employees to put money. The robber took $11,515.00

and two dye packs. The descriptions given by bank employees had some discrepancies, and

the videotape from the surveillance camera did not show the robber’s face because of the

mask. The robber fled the bank in a blue car. An employee saw pink smoke coming from

the car as the robber drove away, indicating that at least one of the dye packs had exploded.

The dye packs contained tear gas as well as dye. A customer at the drive-in window saw the

robber leaving the bank and believed that the car he was driving was a 1983 or 1984 blue

Oldsmobile. He saw the car go south on Bryant Street and turn right on 9th Street. Another

driver passed a car with pink smoke coming out the window and saw it turn off Bryant onto

9th Street.

Officer Adrian Neal had just parked his car at the police station and started to enter

the building when he heard on his radio that a robbery had occurred. As he drove toward the

bank he heard a report that a light blue, four door car, possibly an Oldsmobile, had been seen

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leaving the bank and turning onto 9th from Bryant. Going south down Boulevard Street, near

where the getaway car had last been seen, Officer Neal saw a light blue four door car coming

towards him, driven by a man in a white tee shirt with a baseball cap. Neal turned around

and followed. He saw the car make another turn and continued following. He estimated that

he lost sight of the car for no more than 20 seconds. When he next saw the car, it was parked

at the library. From one-half block away, Neal saw a white man in a white tee shirt and a

baseball cap near the car. The man resembled the man Neal had seen driving the car, and he

was walking into the library. As the officer approached the library, the man entered the

library through the front door.

Officer Neal parked behind the blue car. Looking into the car, he saw an object

wedged in the crack between the split bench style front seat. Protruding up from the seat

Neal saw what looked like the grip of a gun, and what appeared to be the end of a gun barrel

was partly visible on the underside of the seat. Moments later Detective Mize arrived. Mize

stayed with the car while Neal went into the library. Mize also could see what looked like

a gun. He began taking pictures and opened the unlocked car door to facilitate his

photography.

Officer Neal was joined inside the library by Officer Fees and others. Neal testified

that a woman leaving the library told him she had just seen a man run into the bathroom.

When no one was found in the bathroom, another officer pointed to a large man wearing a

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hat and a white tee shirt. Neal said that was the man, and defendant was arrested. He was

turned over to FBI agent Jeff Jenkins.

Jenkins told defendant he was under arrest for bank robbery and would be taken to the

FBI office. He told defendant that he did not want to hear a word from him. Agent Jenkins

did not advise defendant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In the

agent’s car on the way to the FBI office, defendant started to talk. He said that he did not rob

a bank, that it is too hard to rob a bank in Edmond because there’s no place to park.

Defendant said he had been at the “bank -- library” at 1:45 checking out a book. He said that

someone must have stolen his car, used it in a robbery and parked it in its original spot again.

He said that he normally left his keys in his car. The FBI agents did not ask any questions

or say anything to defendant after Agent Jenkins originally warned him not to say anything.

Agent Jenkins took notes of defendant’s statements in the car.

Defendant refused to consent to the search of his car. After his arrest, the car was

impounded and inventoried. Among the things found were a shotgun loaded with a single

shell, a wallet, sunglasses, a baseball cap, a sack containing $11,398.00 ($117 less than was

reported taken in the robbery) and red dye, gloves, a mask, a shirt, a notebook that belonged

to defendant which had notes about recent bank robberies in the area, and a stolen license

plate with duct tape on it, on which defendant’s fingerprint was found. No fingerprints were

found on the gun, the shell, the sunglasses, the currency or the sack. Most of the hairs found

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in the car were not suitable for comparison. A hair believed to be from a black person was

found on the mask, and a hair consistent with defendant’s was found on the shirt.

Other evidence was later found at the library. Less than an hour after defendant’s

arrest, a library patron found a set of car keys lying on the floor near where defendant had

been arrested. The keys were found to be for defendant’s car. The next day, another patron

found four shotgun shells on a book shelf in the area near where the arrest had been made.

Defendant was well known at the library. He went there every day, sometimes several

times in a day. He had told an acquaintance in the library that he was going to rob a bank.

This conversation was about two months before the robbery at issue. Several library

employees saw defendant on the day of his arrest, but none saw him during the time of the

robbery. One employee said she saw him just before his arrest and he appeared to be in a

hurry, although he typically was very slow moving. Another observed that his eyes were red

just before his arrest (which could have been from the tear gas in the dye pack). No testing

for traces of red dye was done on defendant’s clothes, which had no dye visible on them.

More than two months after the robbery, Detective Mize and Officer Neal went to

defendant’s home and asked defendant’s wife for permission to search. She said she did not

want the officers to come into the house, but she consented to their search of the yard and

garage. Within the garage was a small room which defendant had formerly used as an office

for his business. Detective Mize opened a filing cabinet in the office and found thirteen

shotgun shells. One of these shells was similar to the one which had been found in the

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shotgun in defendant’s car immediately after the robbery, in that it appeared not to have been

a new shell but one which had been reloaded. One of the four shells which had been found

in the library the day after defendant’s arrest also had similar characteristics.

II

Defendant alleges error in the district judge’s refusal to grant two separate motions

to suppress evidence. We first address defendant’s contention that the search of his car

violated his Fourth Amendment rights and that the evidence found there should therefore

have been excluded. Review of the district court’s findings of fact on a motion to suppress

is under the clearly erroneous standard, but the ultimate question of the reasonableness of a

search is a legal one subject to de novo review. E.g., United States v. Chatman, 994 F.2d

1510, 1514 (10th Cir. 1993).

The search of the car was without a warrant and without consent. The district judge

found that probable cause to arrest defendant was established when the officers saw the butt

of the gun in the car. Although the judge’s oral findings and conclusions do not specifically

so state, it is clear that he found that search of the car was also supported by probable cause.

The judge stated: “I find that there was probable cause for the actions done at the library

. . . .” II R. at 46. The search was also held to be a valid inventory search after the valid

arrest. The court also supported the ruling by reliance on the mobile nature of the

automobile, citing Carroll v. United States, 267 U.S. 132 (1925).

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 Defendant argues that the search began before his arrest and so was not an inventory

search. This contention is based on the fact that Detective Mize had already opened the car

door to get a better look at the gun before defendant was arrested. Officer Neal had not seen

anyone get out of the car, defendant maintains, so his observations do not provide grounds

for the search, and cannot cure the illegality of Detective Mize’s actions. The subsequent

inventory search, defendant urges, was tainted by Mize’s illegal search. Defendant also

contends that no exigency justified the search, because his arrest precluded him from using

the car to escape and the car was safely located in the library parking lot where it posed no

hazard.

We find defendant’s arguments unconvincing. The undisputed evidence was that

portions of the sawed-off shotgun were visible through the car window and were in fact

observed by Officer Neal and Detective Mize without entering the vehicle. We agree with

the district judge’s conclusion that the combination of the description of the getaway car

provided by witnesses at the bank, Officer Neal’s observation of the car en route to the

library, and observation of the gun in plain view within the parked automobile provided

sufficient probable cause for any search of the car. Under the circumstances, no further

justification was required for the very limited search effected by Detective Mize opening the

car door. United States v. Crabb, 952 F.2d 1245 (10th Cir. 1991); see also United States v.

Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993).

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 Equally important, we believe, is the fact that all of the items seized from the car, with

the exception of the gun, were found in the subsequent inventory search, which we hold was

proper. Defendant does not dispute that the car was inventoried pursuant to police policy.

His only challenge to the inventory search is based on his contention that the inventory was

a result of a prior unlawful search, that being Detective Mize’s opening of the car door to

facilitate his photography. As we have just explained, we do not agree that Detective Mize’s

actions were improper. Even if they had been, however, it is simply not correct that the

inventory was the “fruit” of this entry. Detective Mize’s actions resulted in no additional

information being obtained by the authorities, just better pictures. We would see no reason

to condemn the inventory of the car’s contents on the basis of the detective’s having

previously opened the car door, even if we were to conclude that the detective acted

improperly, because the defendant’s arrest and the subsequent inventory search were clearly

the result of all of the other information the authorities had obtained and not at all the result

of Detective Mize having opened the car door.

III

We next consider defendant’s argument that the shotgun shells found in the search of

his home, with his wife’s consent, should have been suppressed. Defendant contends that

the search of the filing cabinet in the office within his garage exceeded the scope of the

permission given by defendant’s wife. This is so, he contends, because Mrs. Bain did not

have authority to consent to the search of either the office or the filing cabinet. Defendant’s

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argument thus tends to conflate two separate issues: whether Mrs. Bain had authority to

consent to the search of the office and the filing cabinet and, if so, whether she did in fact

consent to search of those areas. As we shall explain, another issue may arise from

consideration of these, and that is what the officers would have reasonably understood to be

the extent of Mrs. Bain’s authority and of her consent.

As we have already noted, review of the district court’s findings of fact on a motion

to suppress is under the clearly erroneous standard, but the ultimate question of the

reasonableness of a search is a legal one subject to de novo review. United States v. Mains,

33 F.3d 1222, 1227 (10th Cir. 1994) (applying these standards to the issue of the scope of

consent to search). The government has the burden of showing that the consent was effective

to make the search a reasonable one. United States v. Salinas-Cano, 959 F.2d 861, 864

(10th Cir. 1992).

The district court found that Mrs. Bain had equal access to the interior office in the

garage and defendant had made no attempt to exclude her from it. Mrs. Bain testified at the

suppression hearing that she considered the room defendant refers to as his office as merely

part of the garage. The office and filing cabinet had been used by defendant when he had

been operating a contracting business out of the home, but Mrs. Bain testified that for at least

several months prior to defendant’s arrest “things had been slow . . . . He hadn’t done much

work.” III R. at 86. The desk which defendant had formerly used in the office had been

moved into the house in October, months before his arrest. Mrs. Bain did not use the filing

9
cabinet. Although defendant had told the children to stay out of the office, they had been

playing there since he had been in jail awaiting trial. Mrs. Bain seldom went into the office,

although defendant had never told her not to do so, and she occasionally had entered it in the

past because two refrigerators were kept there. At the time of the search, the refrigerators

were not in use. In response to a question by the court, Mrs. Bain said that her husband had

never told her to stay out of the office or out of the filing cabinet. III R. at 87.

We find it helpful to consider separately the reasonableness of the search of the garage

office generally and the search of the filing cabinet. As to the garage office, the district

judge’s conclusion that the search did not exceed the scope of Mrs. Bain’s consent was based

on the facts summarized above, which fact findings we cannot hold to be clearly erroneous

because they are supported by the evidence. Based on these facts, the judge’s conclusion is

correct. We also agree with the conclusion, which is implicit in the judge’s oral ruling, that

these facts establish that Mrs. Bain had the authority to consent to the search of the garage

office.

We read the judge’s ruling, which was delivered orally at the close of the evidence at

the suppression hearing and after argument by counsel, as applicable also to the search of the

filing cabinet within the garage office. Defendant, however, argues that the officers should

not, in any event, have opened the filing cabinet. He asserts that only when “a legitimate

search is under way, and when its purpose and its limits have been precisely defined . . . .”

may a search of containers within the room be valid, relying on United States v. Ross, 456

10
U.S. 798, 821 (1982), and United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992).

Defendant apparently contends that the purpose and limits of the search were not precisely

defined. We find it unnecessary to address the issue as framed by the defendant, however,

because we believe that the search was reasonable even assuming, arguendo, that

Mrs. Bain’s actual authority did not extend to the filing cabinet.

Even if Mrs. Bain’s authority did not extend to the filing cabinet, the search is

nevertheless reasonable if the officers reasonably believed that she had authority to consent

to its search. See Salinas-Cano, 959 F.2d at 865; Illinois v. Rodriguez, 497 U.S. 177 (1990).

The test is what a reasonable person would have understood was the extent of the permission

granted. United States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994).

The evidence was that Mrs. Bain readily consented to the search of the garage.

Officer Mize testified that when the search was conducted, the door to the office was open.

V. R. at 326. With two refrigerators in the small room, there is no indication that the room

itself would have appeared to the officers to have been anything other than an area of

common access for the family. The filing cabinet was the only object in the room that would

have suggested use of the room as an office, and the presence of the refrigerators would have

dispelled such an impression. The filing cabinet was not marked in any way to indicate

whether it was used by Mr. Bain exclusively, or even that it was used by him at all.

As the Supreme Court has often emphasized, Fourth Amendment questions such as

this depend on all the relevant facts and circumstances in the individual case. We

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acknowledge that a relevant factor is whether the container in issue is the type which

“historically command[s] a high degree of privacy,” Salinas-Cano, 959 F.2d at 864, and that

filing cabinets in general must be considered as having such a high degree of privacy. Under

the specific circumstances confronting the officers in this case, however, we believe that

there was little, if anything, to indicate that this filing cabinet was the private domain of

Mr. Bain individually, as opposed to the Bain family. Therefore, we hold that it was

reasonable for the officers to believe that Mrs. Bain’s consent extended to the cabinet and

to act accordingly.

IV

We turn next to Mr. Bain’s contention that the evidence of statements he made to the

FBI agents after his arrest should not have been admitted. Bain does not contest the factual

findings underlying the district court’s denial of his motion to suppress. Thus, we deal only

with the legal issue of the voluntariness of defendant’s statements, which we review de novo.

See United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir. 1993).

It is undisputed that defendant was in custody when the statements were made.

Nevertheless, the fact that defendant had not yet been advised of his rights under Miranda

v. Arizona, 384 U.S. 436 (1966), is material only if the statements were the result of

interrogation. Defendant relies on Rhode Island v. Innis, 446 U.S. 291, 301 (1980), and its

holding that any activity by law enforcement officers “reasonably likely to elicit an

incriminating response,” constitutes interrogation and so requires Miranda warnings. He

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contends that the agents’ conduct in this case was reasonably likely to elicit an incriminating

response due to the fact that he had just been arrested and told that he was being held for

bank robbery charges. This contention is meritless.

A command by officers to an arrestee not to speak, after which the officers say no

more, cannot possibly be construed as interrogation. To hold otherwise would require

Miranda warnings in virtually every case immediately upon arrest and effectively eliminate

the requirement of interrogation from the Miranda analysis. The Supreme Court has given

no indication that the interrogation requirement should be so jettisoned.

Comparison of the facts of this case with those of Innis further reveals the weakness

of defendant’s argument. The Court there stated the abstract rule on which Mr. Bain relies --

that Miranda applies not just to interrogation per se but to other words or conduct reasonably

likely to elicit an incriminating response -- but found that the officers discussion of the

potential tragedy which might befall an innocent, handicapped child did not constitute the

type of conduct which would amount to interrogation. If that conversation in Innis did not

meet the standard of being reasonably likely to elicit an incriminating response, then certainly

the agents’ silence in this case does not.

Here, the officers did nothing except remain silent (after first warning defendant not

to talk), while defendant apparently gushed forth in his anxiety. The statements were

voluntary and so properly admitted.

V

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 Bain argues that the evidence was insufficient to support his convictions. We review

the evidence de novo, in the light most favorable to the government, and all reasonable

inferences to be drawn from the evidence, to determine if a rational jury could have found

the defendant guilty beyond a reasonable doubt. United States v. Voss, 82 F.3d 1521,

1524-25 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996).

Defendant relies on the fact that none of the witnesses at the bank was able to identify

him and on certain discrepancies in their descriptions of the robber’s attire. He also

emphasizes differences in the clothing worn by the robber, as seen on the bank’s security

camera, and the clothing he was wearing at the time of his arrest. Thus, on the bank’s

videotape, the robber appears to be wearing dark shoes and dark pants. One witness said the

robber was wearing cowboy boots. When he was arrested, Bain was wearing light colored

sneakers and cut-off jeans. No red dye was found on the clothes he was wearing when

arrested, nor on his person. His fingerprints were not found on the paper bag in which the

money was found or on the shotgun, but the evidence was that the robber had worn gloves

like those found in the car. Bain also points out that there was a discrepancy in the amount

of money reported stolen and the amount recovered, which is not resolved by the amount that

he had in his possession when he was arrested. Finally, Bain points to certain inconsistencies

in the testimony of Officer Neal and a library patron concerning a conversation that Neal

testified he had just before entering the library. From this inconsistency, Bain argues that

Neal’s testimony was “contrived” and must be disregarded.

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 We dispose of the last mentioned contention first. We are not at liberty to resolve

discrepancies in evidence, nor to declare that the jury should have disregarded a witness’s

testimony. See United States v. Torres, 53 F.3d 1129, 1134 (10th Cir.), cert. denied, 115

S. Ct. 2599, 116 S. Ct. 220 (1995). Indeed, much of Bain’s attack on the sufficiency of the

evidence consists of identifying discrepancies which the jury could have resolved in his favor

but, evidently, did not. We need say no more on these portions of the argument but that our

role as an appellate court does not permit us to second-guess the jury’s resolution of issues

properly put to it.

The evidence is overwhelming that it was defendant’s car which was used in the

robbery. The only possible inference other than that the defendant committed the robbery

is that, as defendant claimed in his voluntary statements immediately after his arrest,

someone had stolen his car and returned it to the library. Because Officer Neal followed the

getaway car to the library only seconds behind it, the actual perpetrator, if not defendant,

would have had to make a very quick escape, after going through the library to dispose of the

keys to the car. Although this is a possible inference, the mere possibility of an inference

other than guilt does not mean that the jury’s verdict should, or even may, be overturned. To

the contrary, “the evidence required to support a verdict need not conclusively exclude every

other reasonable hypothesis and need not negate all possibilities except guilt.” United States

v. Mains, 33 F.3d 1222, 1228 (10th Cir. 1994) (quoting United States v. Parrish, 925 F.2d

1293, 1297 (10th Cir. 1991)); see also United States v. Hager, 969 F.2d 883, 888 (10th Cir.

15
1992). We are not convinced that the inference that defendant would have us draw is a

reasonable one in view of the evidence as a whole, but defendant’s argument is unavailing

in any event.

Moreover, we conclude that the discrepancies identified by defendant were easily

susceptible of resolution by the jury by drawing reasonable inferences other than those

suggested by Mr. Bain. For example, some minutes elapsed between the time Officer Neal

arrived at the library and the time that Bain was first seen in the library, which could have

enabled him to complete the change of clothing which he apparently had begun before, when

he removed and left in the car the outer shirt worn during the robbery. Discrepancies

between the witnesses’ descriptions were not material, and not inconsistent with the

inference that Bain was indeed the robber. We do not believe it necessary to set out with

specificity the fairly obvious, adverse inferences which the jury evidently drew with respect

to the other evidentiary matters Bain discusses in his brief. Suffice it to say, we find the

evidence sufficient to support the jury verdict of guilty on all the counts under our standards

for review set out above.

VI

Finally, we consider defendant’s argument that the stolen license plate found in the

trunk of his car at the library after his arrest should have been excluded under Fed. R. Evid.

404(b). We review the district court’s evidentiary ruling for abuse of discretion. United

States v. Reddeck, 22 F.3d 1504, 1509 (10th Cir. 1994). Our abuse of discretion review

16
under Rule 404(b) follows the four-step procedure established by Huddleston v. United

States, 485 U.S. 681, 691-92 (1988):

(1) [T]he evidence must be offered for a proper purpose under Rule 404(b);
(2) the evidence must be relevant; (3) the trial court must make a Rule 403
determination that the probative value of the [other crimes, wrongs, or acts]
evidence is not substantially outweighed by its potential for unfair prejudice;
and (4) under Rule 105, the trial court must, upon request, instruct the jury that
the evidence of similar acts is to be considered only for the proper purpose for
which it was admitted.

United States v. Joe, 8 F.3d 1488, 1495 (10th Cir. 1993).

The district court held that the stolen license plate was relevant because it was more

likely that a person with a stolen license plate, double taped, bearing his fingerprint, robbed

the bank than a person who did not have such an item in his car. The court held that the

probative value of this evidence was not outweighed by the potential for unfair prejudice.

Defendant argues that the evidence was not relevant and it was unfairly prejudicial.

Mr. Bain contends that because there was no evidence that the license plate was actually used

in the robbery, the license plate had no relevance to the only issue -- the identity of the

robber. He asserts that this evidence was used as a character attack, to try to get the jury to

convict because he was a bad person. Thus, Mr. Bain challenges the first three of the four

factors set out above for our review.

The government responds that the evidence was indeed relevant and was admissible

under Rule 404(b) to show intent, preparation, or plan. The license plate had been taped on

the back so that it could be quickly placed over another plate. Detective Mize testified that

17
it was common for robbers to use a stolen vehicle or to use a changed or stolen license plate

on their own vehicle. The presence of the license plate was particularly relevant, the

government says, in view of defendant’s statement that someone must have stolen his car and

used it in the robbery. The government argues, and cites supporting testimony by Detective

Mize, that a criminal using a stolen car would not ordinarily also use a stolen license plate.

The government also says that the evidence about the plate was not unfairly

prejudicial and cites the district judge’s observation that the gun, the money, the ski mask and

other items found in the search of the car would have more impact on the jury than this item,

which is not inflammatory and not the type of thing that would tip the scales in a close case.

We agree that the evidence was relevant to show preparation or planning by the

defendant and, because we do not believe the probative value of the evidence was

outweighed by the relatively slight possibility of unfair prejudice, we certainly see no abuse

of discretion in the district judge’s ruling.

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 VII

Having found no merit in any of Mr. Bain’s contentions, we AFFIRM his conviction

and sentence.

Entered for the Court

William J. Holloway, Jr.
Circuit Judge

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