United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-60561
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY NEELY,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Mississippi
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
After filing an unsuccessful motion to suppress clothing taken
from a hospital in which he was a patient, appellant Tony Neely
proceeded to trial on charges of bank robbery and carrying or using
a firearm during and in relation to a crime of violence. The jury
convicted him on both counts, and the district court sentenced him
to 380 months’ imprisonment and five years’ supervised release. He
now appeals the district court’s ruling on the motion to suppress
and certain sentencing issues. We agree with Neely that the
district court reversibly erred in denying the motion to suppress,
and therefore reverse his conviction and remand for a new trial.
I
Testimony presented at the hearing on the motion to suppress
revealed that on November 9, 2000, at 10:45 a.m., a man wearing a
red and white windsuit and a ski mask over his face and carrying a
.380 pistol walked into the Trustmark Bank in Southaven,
Mississippi, a town situated on the state line between Tennessee
and Mississippi and a suburb of Memphis, Tennessee. Upon entering
the bank he shot a single round from his weapon into the ceiling
and proceeded to the teller counter. He yelled to the lone teller
behind the counter, Glenda Wheeler, to get down on the floor, and
kicked in the gate accessing the area behind the counter. Once he
was behind the counter he located Wheeler’s teller drawer and
removed $17,097 in cash. Because the robber was covered from head
to toe Wheeler was unable to identify his race or other identifying
characteristics, nor were law enforcement officers who later viewed
the bank’s videotape of the robbery.
After recovering the money, the robber ran out of the bank and
jumped into the passenger side of a maroon Mazda 626 that had been
waiting for him in the bank parking lot. As the Mazda attempted to
pull out of the parking lot, a dye pack placed by the teller into
the wads of stolen money exploded. Eyewitnesses reported that,
after the dye pack exploded, both the driver and passenger of the
vehicle opened the car doors to let the smoke escape. As they did
2
so, the car hit a parked vehicle in the parking lot, and the jolt
caused the passenger to drop currency onto the ground. As he
leaned down to pick up the money, witnesses heard a pop and
observed the passenger grab his chest or stomach area. Then both
individuals exited the vehicle and ran across the lot to a waiting
black SUV and got into that car. The SUV left the lot and headed
north towards Memphis.
From the parking lot agents recovered several thousand dollars
with red stain on it. They also took samples from the interior of
the Mazda, which they observed was splattered with red dye. The
only evidence recovered from inside the bank was the bullet in the
ceiling, a small crowbar, and a .380 casing from the spent round.
A few minutes after the robbery a 911 call came in from the
Tulane Apartments in Memphis, roughly four and a half miles from
the bank. The caller reported that an individual in apartment two,
a second-story apartment, had sustained a gunshot wound to his
chest. An ambulance and police personnel responded to the call and
arrived to find Neely wounded and lying in the kitchen of the
apartment. The ambulance workers quickly secured Neely and
transported him the to Regional Medical Center, also known as “The
Med,” in Memphis. At the foot of the rear stairs leading to the
apartment police seized a banking bag and an empty plastic ice bag
both stained with red dye.
At The Med, emergency personnel rushed Neely to the Shock
Trauma Unit. During treatment the medical workers found it
3
necessary to remove Neely’s clothing, which included a royal blue
t-shirt and a pair of blue jeans. They placed the clothing in a
plastic bag. Kerry Kirkland, the patient care coordinator for The
Med’s 7 a.m. shift, testified that when someone such as Neely is
brought into the trauma unit suffering from a gunshot wound and
covered with blood, and medical personnel finds it necessary to cut
his clothing off of his body, it is inventoried, placed in a
plastic bag, and put into the clothing storeroom at back of the
unit. The clothing is maintained in the storeroom for five to six
days and, if the owner does not claim it, it is thrown away.
Kirkland further affirmed that the hospital considered such
clothing to belong to the patient even while in the hospital’s
possession; that the staff at The Med does not consider the
hospital to be an owner of the clothes.
While Neely was in surgery or shortly thereafter, a detective
captain at the Southaven Police Department, acting on information
from the Memphis Police Department, dispatched an officer to The
Med to retrieve Neely’s clothing. Although the officer had no
warrant for the clothing, and police were then in the process of
procuring an arrest warrant for Neely, medical personnel gave him
Neely’s clothes upon the officer’s request. Lab analysis of the
seized clothes revealed tear gas and red dye consistent with
substances deployed in a dye pack.
Neely argued that the clothing and the lab results were
inadmissible products of a warrantless search and seizure subject
4
to no exception to the warrant requirement. The Government did not
file a response to the motion,1 but at the hearing held by the
district court it argued that exigent circumstances – particularly
the police captain’s concern that the bloody evidence would
deteriorate or be contaminated while in the hospital’s possession
– justified the seizure, and that, alternatively, Neely lost his
privacy interest in the clothing by wearing them in front of
hospital personnel and police officers after he was shot.2 The
Government also suggested that the hospital was a joint possessor
of the clothing and therefore it had authority to give them to the
police, and that the seizure of the clothes was incident to Neely’s
arrest, since it closely preceded procurement of the arrest warrant
and for all practical purposes Neely was under arrest at the time
of the seizure since he was shackled to his bed.
After the hearing the district court, in a written opinion,
denied the motion to suppress, concluding that Neely had no
reasonable expectation of privacy in his clothes while they were in
1
Although the Government sought and was given an extension of
time in which to file the response, the docket sheet shows that it
never filed the response.
2
During oral argument the Government stated that it had
raised the plain view exception to the trial court, but we find no
explicit mention of plain view in the district court record.
However, the Government did argue to the district court that Neely
had no reasonable expectation of privacy in his clothing because
Neely displayed it to police and medical personnel, and defense
counsel conceded during oral argument that this could be read as an
argument for plain view. Therefore we will address the
Government’s plain view arguments.
5
the hospital’s possession, since he voluntarily submitted himself
to medical treatment wearing the bloody clothes. However, it
rejected the Government’s argument that possible deterioration of
the defendant’s clothes created exigent circumstances justified
seizing the clothes without a warrant. The trial court further
concluded that the forensic testing of the clothes constituted a
reasonable search incident to the defendant’s arrest. Neely now
appeals.
II
In reviewing a district court’s determination of a motion to
suppress, we accept the ruling unless clearly erroneous or
influenced by an incorrect view of the law, viewing the facts in
the light most favorable to the prevailing party, here the
Government.3 Neely argues that the district court erred in
focusing on whether he had a valid privacy interest in his clothing
at the time the police seized them, because the existence of a
privacy interest is relevant to the constitutionality of a search,
not a seizure. He urges that an illegal seizure can take place
even in the absence of a valid privacy interest in the seized item
as long as the defendant establishes that the seizure interfered
with his constitutionally protected possessory interests in the
property. Moreover, he argues, even if an officer would be
justified in a brief temporary search or seizure of property based
3
United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998).
6
on the theory that a defendant does not have a reasonable
expectation of privacy in the property, a permanent seizure such as
occurred in this case is not allowed without a warrant or without
proof by the Government that an exception to the warrant
requirement existed.
We find Neely’s arguments meritorious. The Government’s
contentions that Neely had no valid possessory interest in the
clothing because he abandoned that interest and that the hospital
was a joint possessor of the clothing are unavailing. Numerous
courts have held that an emergency room patient does not forfeit
his possessory rights to clothing simply by walking (or in many
cases being carried) through the hospital door.4 As one New York
state court has reasoned, “[o]nce the clothing is taken from the
patient and secured by the hospital, the hospital becomes a bailee
and the employees have no authority to permit the police to search
or test the clothes without the consent of the owner.”5 That
court, confronting a situation similar to this case, held that as
a bailee the hospital was required “to exercise ordinary and
reasonable care for defendant’s clothes,” and “had no authority to
4
See, e.g., Jones v. State, 648 So. 2d 669, 675 (Fla. 1994);
People v. Jordan, 468 N.W.2d 294, 298-301 (Mich. App. 1991); People
v. Yaniak, 738 N.Y.S.2d 492, 495-96 (Co. Ct. 2001); People v.
Hayes, 154 Misc. 2d 429, 432-34 (N.Y. Sup. Ct. 1992); People v.
Watt, 118 Misc. 2d 930, 931-34 (N.Y. Sup. Ct. 1983).
5
Yaniak, 738 N.Y.S.2d at 495-96.
7
allow them to be taken without a warrant.”6 It further explained
that since the hospital had no authority to hand over the clothes,
the only way the police could have legally taken them without a
warrant – absent application of a recognized exception to the
warrant requirement – was if the prosecution presented “evidence
that [the] defendant determined permanently to discard his
clothes.”7 The court found no evidence supporting such a
conclusion, instead noting that “the placing of the garments in the
green plastic bag by hospital employees evinced an objective belief
on their part that the items were still the personal property of
the defendant and that, when he felt better, they would be returned
to him.”8
The Florida Supreme Court reached the same conclusion in Jones
v. State, in which it held that officers violated a defendant’s
Fourth Amendment rights by seizing clothes that were in his
hospital room.9 Jones clarified that what was at issue was a
seizure, not a search, and therefore it was to be measured not by
whether the defendant had a reasonable expectation of privacy in
this clothes, but rather by whether the seizure “interfered with
6
Id. at 932.
7
Id.
8
Id.
9
Jones v. State, 648 So. 2d 669, 675 (Fla. 1994).
8
[the defendant’s] constitutionally protected possessory
interests.”10 The Jones Court reasoned:
We agree with other jurisdictions that have addressed the
issue. Because Jones never voluntarily abandoned either
his clothing or other effects, he had no reason to
believe that his belongings would be turned over to
police without his authorization. Even though hospital
staff generally has joint access to and control of
personal effects [of a patient], the staff cannot consent
to the search or seizure of the effects because it has no
right to mutual use of a patient’s belongings ....11
We adopt this reasoning, and hold that Neely did not forfeit
his possessory interest in his clothing by entering The Med and
that the officers presumptively violated his Fourth Amendment
rights in retrieving the clothes from the hospital. The Government
presented no evidence indicating that Neely had done anything to
suggest he had given up the possessory interest in his clothes, and
the hospital’s policy of placing the clothing in a bag and putting
it in a locker in the clothing storage room suggested that it was
holding the clothes for him until he recovered. The Government’s
theory that the hospital jointly possessed the clothing and
therefore had authority to hand them over to the police upon
request also fails because the patient care coordinator called at
the hearing testified that the hospital considers such clothing
items the patient’s possessions and does not consider itself an
owner of the clothes. She further explained that clothing such as
10
Id.
11
Id.
9
Neely’s, even when covered with blood, would be stored for the
patient and only discarded if the patient or a family member did
not attempt to retrieve the clothing after five to six days. The
Government presented no evidence at the suppression hearing that
hospital staff did not follow this procedure with regard to Neely’s
clothes. Therefore we find that Neely retained a sufficient
possessory interest in the clothes to complain of this seizure and
that, absent application of an exception to the warrant
requirement, we must hold the seizure unreasonable under the Fourth
Amendment.
III
The Government asserts that we should affirm the district
court’s ruling on the basis that police legally seized the clothes
pursuant to the plain view doctrine. It contends that Neely’s
bloody clothes, evidence of a possible crime, were in plain view of
the Memphis officers who accompanied the medical personnel into
Neely’s apartment, as well as to the hospital staff who treated
Neely upon arrival at The Med. The argument is that the Memphis
officers could not have seized the clothes while they were actually
in plain view because it would have interfered with Neely’s medical
treatment, so it was only reasonable for them to alert the
Southaven police so that they could retrieve the clothing after
Neely arrived at the hospital.
As Neely points out, the difficulty with the Government’s
argument is that the plain view doctrine requires both that the
10
object be in plain view at the time of seizure and that the officer
have a lawful right of access to the object.12 If accepted, the
Government’s line of reasoning would permit seizure of items that,
while previously in plain view, are no longer in plain view at the
time of seizure, and may not even be in a place lawfully accessible
to the officer. The practical implication of this argument is that
the Government will be free to seize any object officers have
previously seen in plain view. In Neely’s case the Southaven
officer seized the clothing after the Memphis officers saw it in
plain view at the apartment, and the officer who retrieved the
clothes did not have a lawful right of access to the storage room
or the plastic bag in which the hospital had stored Neely’s
clothing. These facts do not fit within the four corners of the
plain view doctrine.
IV
We similarly reject the Government’s argument that the seizure
of the clothes was incident to arrest. Neely contends that this
was not a seizure incident to arrest because that exception applies
only to a search of his person or the area immediately around him,
12
See United States v. Paige, 136 F.3d 1012, 1023 (5th Cir.
1998) (“[T]he Supreme Court has identified several conditions that
must be satisfied before a plain view seizure of an object is
upheld: (1) the officer conducting the seizure must lawfully arrive
at the position from which the object is plainly seen; (2) the
object must be in plain view; (3) the object’s incriminating
character must be immediately apparent – i.e., the officer must
have probable cause to believe the object is contraband or evidence
of a crime; and (4) the officer must have a lawful right of access
to the object itself.”)..
11
but here the officer seized the clothing from a completely
different area of the hospital than where Neely was located.13 The
Supreme Court’s decision in Chimel v. California, which held that
officers’ search of the defendant’s entire house during an arrest
did not escape the warrant requirement, supports Neely’s argument.14
In that case the Court reasoned that during an arrest it is
reasonable for the arresting officer “to search the person arrested
in order to remove any weapons the latter might seek to use to
resist arrest or effect his escape,” and to “search for and seize
any evidence on the arrestee’s person in order to prevent its
concealment or destruction.”15 It continued,
[T]he area into which an arrestee might reach in order to
grab a weapon or evidentiary items must, of course, be
governed by a like rule. A gun on a table or in a drawer
in front of one who is arrested can be as dangerous to
the arresting officer as one concealed in the clothing of
the person arrested.16
Although “ample justification” supports “a search of the
arrestee’s person and the area ‘within his immediate control,’”
meaning “the area from within which he might gain possession of a
weapon or destructible evidence,” the Chimel Court explained that
no justification exists “for routinely searching any room other
13
United States v. Helmstetter, 56 F.3d 21, 23 (5th Cir.
1995).
14
Chimel v. California, 395 U.S. 752 (1969).
15
Id. at 762-63.
16
Id.
12
than that in which an arrest occurs,” or even “for searching
through all the desk drawers or other closed or concealed areas in
that room itself. Such searches, in the absence of well-recognized
exceptions, may be made only under the authority of a search
warrant.”17 Applying Chimel, in United States v. Johnson we held
that officers illegally searched a defendant’s briefcase during his
arrest when the briefcase rested eight feet away from the defendant
– not “reaching distance” and therefore not “under his immediate
control.”18
Under Chimel and Johnson we cannot say that the seizure of
Neely’s clothing was incident to his arrest because the clothing
was far removed from Neely, and there are no indications that he
could have attempted to destroy the clothing, given that, at the
time it was seized, he was either in surgery or shackled to his
17
Id.
18
United States v. Johnson, 16 F.3d 69, 71-73 (5th Cir. 1994).
13
hospital bed.19 This exception simply does not apply to the facts
of this case.20
V
The Government has conceded that harmless error does not
apply, and that we should remand it for a new trial if we find the
motion to suppress should have been granted. We find the district
court erred in denying Neely’s motion to suppress, REVERSE Neely’s
conviction, and REMAND for a new trial. We do not reach the other
points of error.
REVERSED and REMANDED.
19
See, e.g., People v. Hayes, 154 Misc. 2d 429, 433 (N.Y. Sup.
Ct. 1992) (Holding in a nearly identical case that “[t]he search by
scientific testing, as well as the seizure of the clothing which
allowed for that testing, were not incident to defendant’s arrest.
The arrest ... occurred when the police posted a guard in Hayes’
hospital room. His clothing was seized later, on another floor,
from a hospital attendant. The seizure was not contemporaneous
with arrest, either spatially or temporally. Accordingly, the
rationale for a warrantless seizure and search incident to arrest
– to prevent the use of an available weapon or the destruction of
evidence – is unavailing in this case.” (citing Chimel, 395 U.S. at
763)).
20
The district court rejected the Government’s argument that
exigent circumstances warranted seizure of Neely’s clothing at the
hospital, and on appeal the Government does not reurge that exigent
circumstances applies. Therefore, we do not address whether the
evidence presented to the district court would have supported a
finding of exigent circumstances.
14