Filed: April 20, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4169
(3:08-cr-00190-RLW-1)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO EDWARD BATTLE,
Defendant - Appellant.
O R D E R
The court amends its opinion filed March 16, 2010, as
follows:
On page 2, second paragraph, line 6; page 3, first
full paragraph, lines 2 and 3; and page 12, first paragraph,
line 8 -- “February 28, 2008” is corrected to read “February 28,
2007.”
On page 2, second paragraph, line 7 – “occurring the
day after” is corrected to read “occurring a year after.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO EDWARD BATTLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00190-RLW-1)
Argued: January 27, 2010 Decided: March 16, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Michael Ronald Gill, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Patrick L. Bryant, Research and Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Dana J. Boente, United States Attorney, Alexandria, Virginia,
Richard Daniel Cooke, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Battle (“Battle”) was indicted on five counts
of manufacturing counterfeit United States currency in violation
of 18 U.S.C. § 471 and two counts of passing counterfeit
currency in violation of 18 U.S.C. § 472. After a jury trial,
Battle was convicted on all seven counts. Battle appeals,
arguing that the district court erred in denying his motion to
suppress evidence and in entering separate (though concurrent)
sentences on the five manufacturing counts. For the reasons
that follow, we affirm.
I.
Battle does not challenge the sufficiency of the
evidence to support his convictions and so we briefly summarize
the facts. The manufacturing counts of the indictment arose from
the seizure of documents containing computer-generated images of
United States currency from Battle’s backpack after a traffic
stop on February 28, 2007. The passing counts arose from events
occurring a year after the traffic stop, February 29, 2008, and
on March 16, 2008, when Battle used counterfeit $100 notes to
make purchases at Wal-Mart. Battle was identified as the person
passing the notes at Wal-Mart through an internal investigation,
which included examination of cash register tapes in conjunction
with video surveillance from security cameras. In addition,
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Battle’s criminal agency was confirmed by the cashier who
handled the March transaction, Desdemona Garrison, who had been
dating Battle’s son for three years. Garrison thought that the
notes looked and felt “funny” but Battle told Garrison that the
money was stiff because it was tax rebate money. Garrison
accepted the notes, believing that Battle would not give her
counterfeit currency.
II.
A.
Prior to trial, Battle moved to suppress the
counterfeit notes found in his backpack during the February 28,
2007, traffic stop. After an evidentiary hearing, the district
court denied the motion to suppress, inter alia, based on its
finding and conclusion, announced from the bench, that the
seizure resulted from a proper inventory search of the vehicle.
J.A. 78-84. Battle contends that the district court erred in
denying the motion.
When considering a district court’s ruling on a motion
to suppress evidence, we review the district court’s finding of
facts for clear error and its legal conclusions de novo. United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). Because
the district court denied Battle’s motion to suppress, we
construe the evidence adduced at the suppression hearing in the
3
light most favorable to the government. United States v.
Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
B.
Battle was the front seat passenger in a vehicle
driven by his nephew Laron Battle (“Laron”) in Richmond,
Virginia. Richmond Police Officer Scott Campbell (“Officer
Campbell”) recognized the vehicle from a previous incident and
believed from that encounter that the driver’s license had been
suspended. Officer Campbell also observed that one of the car’s
brake lights was inoperative. He initiated a traffic stop.
During the traffic stop, Laron failed to produce a driver’s
license, registration, or proof of insurance. Officer Campbell
then determined that Battle could not lawfully operate the
vehicle because his driver’s license also had been suspended.
Officer Campbell, intending to impound the vehicle, had both men
exit the vehicle and called a towing company. Before the traffic
stop was completed, a backup officer, Kevin Hughes (“Officer
Hughes”), also arrived at the scene.
Officer Campbell knew from his experience and training
that he needed to conduct an inventory search to document the
presence of any high-value personal property or contraband in
the vehicle before it was towed away. He told Laron and Battle
they were free to leave, but both men elected to remain on the
scene during the inventory search. Officer Campbell asked Laron
4
if there was anything in the vehicle that the officers needed to
know about, and Laron replied “no.” J.A. 54. Laron also
voluntarily consented to a search of the vehicle.
The Richmond Police Department (“RPD”) has an
established policy relating to the inventory of impounded motor
vehicles. The policy commands a search of any location within
the vehicle in which personal property or hazardous materials
“may reasonably be found, including but not limited to, the
passenger compartment, trunk, containers, and glove
compartment.” J.A. 27. In accordance with the RPD policy,
Officer Campbell commenced a systematic search of the vehicle.
Officer Campbell found a backpack on the backseat of
the vehicle. When Officer Campbell picked up the backpack,
Battle approached him and identified the bag as his property. 1
Officer Campbell then offered to search the bag outside the
vehicle, where Battle could watch. Inside the backpack, Officer
Campbell found a tan envelope containing ten sheets of paper.
Each sheet of paper had two or more images of United States
currency (tens and twenties) printed on it, with the backs of
the notes aligned to match the fronts. Officer Campbell seized
1
Officer Campbell testified that Battle, somewhat agitated,
“approached at a charge,” although Officer Hughes did not notice
any unusual behavior by Battle. In any event, to relieve the
tension, Officer Campbell offered to search the backpack outside
the vehicle within view of Battle.
5
the documents and completed his inventory. The backpack did not
contain any weapons or hazardous materials.
Officer Campbell returned the backpack to the vehicle
and asked Battle about the counterfeit notes. Battle told the
officer that he had printed the notes using a computer “to see
what it looked like” and “to show it to people.” J.A. 62. At
the time of the inventory search, Officer Campbell did not
realize that he was authorized to effect an arrest for
possession of counterfeit United States currency and he did not
arrest Battle. The next day, Officer Campbell contacted the
United States Secret Service, learned that he could have
arrested Battle, and obtained a warrant for Battle’s arrest.
C.
The Fourth Amendment generally requires police to
secure a warrant before conducting a search. Maryland v. Dyson,
527 U.S. 465, 466 (1999); United States v. Currence, 446 F.3d
554, 556 (4th Cir. 2006). A warrantless search, however, may be
valid if the search “‘falls within one of the narrow and well-
delineated exceptions’ to the Fourth Amendment’s warrant
requirement.” Currence, 446 F.3d at 556 (quoting Flippo v. West
Virginia, 528 U.S. 11, 13 (1999)). An inventory search is one
such exception to the Fourth Amendment warrant requirement.
South Dakota v. Opperman, 428 U.S. 364, 374 (1976); United
States v. Banks, 482 F.3d 733, 738-39 (4th Cir. 2007). Thus,
6
evidence recovered from a lawful inventory search is admissible
in a criminal proceeding. Opperman, 428 U.S. at 373-75.
For an inventory search of a vehicle to be lawful, the
vehicle searched must first be in the lawful custody of the
police. United States v. Murphy, 552 F.3d 405, 412 (4th Cir.
2009). Here, Battle concedes that Office Campbell had lawfully
stopped his nephew’s car based on the inoperative brake light;
he also had the authority to impound the vehicle. Appellant’s
Br. 18.
If a vehicle is in lawful police custody, then a valid
inventory search must be conducted pursuant to standardized
police procedures. Its purpose must be to identify and secure
personal property inside the vehicle and not to gather
incriminating evidence against the vehicle’s occupants. United
States v. Brown, 787 F.2d 929, 932 (4th Cir. 1986); see also
Colorado v. Bertine, 479 U.S. 367, 372 (1987) (“inventory
procedures serve to protect an owner’s property while it is in
the custody of the police, to insure against claims of lost,
stolen or vandalized property, and to guard the police from
danger”); Florida v. Wells, 495 U.S. 1, 4 (1990) (“[t]he
individual police officer must not be allowed so much latitude
that inventory searches are turned into ‘a purposeful and
general means of discovering evidence of crime’”) (quoting
Bertine, 479 U.S. at 743). The existence of a standardized
7
police procedure may be proven by reference to either written
rules and regulations or testimony regarding standard practices.
United States v. Matthews, 591 F.3d 230, 235 (4th Cir. 2009).
“‘A single familiar standard is essential to guide police
officers, who have only limited time and expertise to reflect on
and balance the social and individual interests involved in the
specific circumstances they confront.’” Illinois v. Lafayette,
462 U.S. 640, 647 (1983) (quoting New York v. Belton, 453 U.S.
454, 458-60 (1981)).
The RPD has a written set of standard procedures for
seizing and towing vehicles, spelling out the procedures for
inventory searches of seized vehicles. J.A. 25-37. Battle
argues that the inventory search here was not valid because
Officer Campbell deviated from these procedures. We disagree.
Under “Towing and Storage of Vehicles for Traffic
Violations,” the RPD policy establishes standard procedures to
be followed prior to towing. Section II.C.2 states: “The
officer shall inventory for all valuables left in the vehicle.
Any money, drugs, weapons or other valuable item such as
jewelry, tools, etc., excluding clothes, shall be turned in to
Property and Evidence Unit.” J.A. 27. Here, Officer Campbell
did just that: he took inventory of all valuables left in the
vehicle, while conducting the inventory in a methodical manner,
from left to right, front to back.
8
Battle argues that Officer Campbell deviated from the
RPD policy because he failed to afford either himself or Laron
an opportunity to remove any valuables from the vehicle before
conducting an inventory search. For support that the RPD policy
requires officers to allow passengers to remove valuables before
towing, Battle points to Section III.B.2.b of the RPD policy,
which provides that, “Prior to towing, the officer shall . . .
Ask the owner or operator of the vehicle to remove, if possible,
all valuables from the vehicle prior to impoundment . . .” J.A.
26-27. Even if we credit Battle’s reading of the policy,
Officer Campbell was not required to follow the RPD procedures
word-for-word. 2 Items seized during a legal inventory search may
be admissible as evidence because “reasonable police regulations
2
It is worth noting that the language Battle relies on in
the RPD policy in support of his argument that Officer Campbell
was absolutely required to turn over the backpack to him before
(or in lieu of) searching it also supports the government’s view
that the policy simply allowed Battle to reclaim his backpack
after the inventory search, but before the vehicle was towed.
The policy states, “[p]rior to towing, the officer shall . . .
[a]sk the owner or operator of the vehicle to remove, if
possible, all valuables from the vehicle prior to impoundment .
. .” J.A. 26-27 (alterations and emphases added). The specific
language of the policy does not require an officer to allow the
passengers to retrieve their valuables before the inventory
search.
Manifestly, allowing a motorist to retrieve containers
before the completion of an inventory search would defeat one of
the purposes of the search: the protection of an officer. See,
e.g., United States v. Murphy, 552 F.3d 405, 408 (4th Cir. 2009)
(officer found a “dagger-type weapon” in a duffle bag during an
inventory search of a vehicle).
9
relating to inventory procedures administered in good faith
satisfy the Fourth Amendment, even though courts might as a
matter of hindsight be able to devise equally reasonable rules
requiring a different procedure.” Bertine, 479 U.S. at 374
(emphasis added); see also Banks, 482 F.3d at 739
(“[s]tandardized search procedures must be ‘administered in good
faith’ for their attendant searches to satisfy the Fourth
Amendment”) (quoting Bertine, 479 U.S. at 376). The Fourth
Amendment is satisfied so long as Officer Campbell conducted the
inventory search and followed the procedures in good faith.
We conclude without hesitation that the district
court’s finding and conclusion that Officer Campbell properly
conducted the inventory search should be affirmed. In conducting
his search, Officer Campbell did not rummage for evidence of
crimes. Rather, he acted in good faith as he undertook to
identify, secure and protect valuable property. The discovery of
the backpack and the counterfeit notes within the envelope in
the backpack was an unsurprising result of the inventory search,
and in fact, shows that the search that Officer Campbell
conducted served its lawful purpose. 3 Therefore, because Officer
3
The propriety of Officer Campbell’s examination of the
contents of the envelope is made plain if one hypothesizes that
the counterfeit notes had been “real money.” It would not be
surprising to discover that individuals might secret cash in
(Continued)
10
Campbell conducted the inventory search following the RPD
standard procedures, the district court correctly denied
Battle’s motion to suppress evidence of the counterfeit notes
found in his backpack during the search.
III.
Battle also challenges his 60-month concurrent
sentences on the manufacturing counts, arguing that they
constitute multiple sentences for the “same crime.” The question
of whether charges in an indictment are multiplicitous is
generally reviewed de novo. United States v. Leftenant, 341
F.3d 338, 343 (4th Cir. 2003). Because Battle failed to raise
the issue in district court, however, our review is only for
plain error. Fed. R. Crim. P. 12(e); United States v. Dawson,
587 F.3d 640, 648 (4th Cir. 2009). Thus, Battle must show that
(1) an error occurred, (2) that the error was plain, and (3)
that the error substantially affected his rights. United States
v. Bennafield, 287 F.3d 320, 323 (4th Cir. 2002). We find that
the district court did not commit error at all when it imposed
concurrent sentences on Battle for five counts of manufacturing
counterfeit notes.
envelopes that are placed in backpacks that are placed in motor
vehicles.
11
We have held that the imposition of multiple sentences
is improper when the counts of conviction amount to one unit of
prosecution. Bennafield, 287 F.3d at 322-34; United States v.
Dunford, 148 F.3d 385, 389-90 (4th Cir. 1998). Battle argues
that Leftenant barred his conviction and sentencing on multiple
counts in this case because his convictions were based on
possession of all the currency at a single time and in a single
place, i.e., during the February 28, 2007, traffic stop.
Battle’s reliance on Leftenant is misplaced. In
Leftenant, we found that the defendant could not be charged with
six separate counts of possession of counterfeit currency
because the items of contraband were seized on a single
occasion. 341 F.3d at 347-48. The decision was based on the
premise that possession of multiple counterfeit notes at one
time was no different from possession of multiple packages of
drugs or multiple firearms. Id. at 348; see also Bennafield,
287 F.3d at 232-24 (holding that a defendant could only be
convicted of a single act of possession for simultaneous
possession of multiple packages of cocaine); Dunford, 148 F.3d
at 389-40 (holding that a defendant could only be convicted of a
single act of possession for multiple firearms that were seized
from one location at the same time).
Unlike the defendant in Leftenant, Battle was not
charged with possession of counterfeit currency, but with
12
manufacturing counterfeit currency. J.A. 8-6 (“At some point
prior to on or about February 28, 2007 . . . Antonio Edward
Battle, with intent to defraud, did falsely make, counterfeit,
and forge obligations of the United States, that is falsely
made, forged, and counterfeited Federal Reserve Notes in the
denominations set forth below, each constituting a separate
charge in this indictment . . .”). Battle was charged with five
counts of manufacturing — one count for each serial number
denomination of the notes found in his backpack. The offense of
manufacturing counterfeit currency under 18 U.S.C. § 471 is
distinct from the possession of counterfeit notes under 18
U.S.C. § 471. Evidence that each note with a unique serial
number was different established that the notes with different
serial numbers required separate manufacturing acts by Battle.
The government was also very careful to charge Battle with
manufacturing only groups of counterfeit notes identified by
unique denominations and serial numbers — not with each note
recovered. Since the manufacturing charges were for notes that
could be uniquely set apart by different serial numbers, each of
the manufacturing charges comprised a separate unit of
prosecution. Accord United States v. LeMon, 622 F.2d 1022, 1024
(10th Cir. 1980); see also Castaldi v. United States, 783 F.2d
119, 121-23 (8th Cir.) (each denomination of postage stamp
counterfeited was separate violation of statute that made it
13
crime to counterfeit "any postage stamp"), cert. denied, 476
U.S. 1172 (1986). The district court did not err when it
sentenced Battle on each count of conviction.
IV.
For the foregoing reasons, we affirm Battle’s
convictions and sentence.
AFFIRMED
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