The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 1997 Decided January 20, 1998
No. 97-3073
United States of America,
Appellee
v.
Angelo Valentino Garces, a/k/a Lolo,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00269-01)
Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for appellant.
Pamela S. Satterfield, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Mary Lou
Leary, U.S. Attorney, John R. Fisher, Thomas C. Black, and
Brenda Baldwin-White, Assistant U.S. Attorneys.
Before: Wald, Williams and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Randolph.
Williams, Circuit Judge: Angelo Valentino Garces was
convicted of violating 18 U.S.C. s 922(g)(1), which makes it a
crime for a convicted felon to possess a gun and ammunition.
In this appeal he challenges the admission of a car key and
related testimony. Officers found the key in a pair of pants
during a search of Garces's residence pursuant to a lawful
warrant and used it to open a green and white Cadillac
parked outside the residence and owned by Garces's aunt. In
the car, which they searched with the aunt's express written
consent, they found the gun and ammunition giving rise to the
charge. At trial the government offered the key (among
other things) to link Garces to the contraband.
The key was not among the items described in the warrant.
And its seizure did not fall within the "plain view" exception
to the Fourth Amendment's warrant requirement, says
Garces, because the officers lacked probable cause to think it
evidence of a crime until after they had searched the car.
Thus, he says, seizure of the key was illegal.
Because the only reasonable reading of the aunt's consent
to search the car is that it included consent to use the key, we
affirm.
* * *
On July 24, 1996 officers of the FBI and Washington
Metropolitan Police Department went to Garces's house with
a warrant for his arrest for the murder of Thomas Johnson,
and a warrant for search of the premises. The warrant
permitted them to search for and seize various items that
they had probable cause to believe were evidence or instru-
mentalities of the murder:
an auto-loading pistol and ammunition, a black mask, a
dark colored rain slicker and documentation (mail, tele-
phone bills, news clippings) demonstrating connections
between Mr. Garces and decedent, Johnson, which is [sic]
evidence of the crime of murder.
The police entered Garces's home and found him sleeping on
the couch. Though he initially gave a false name, Garces
identified himself when confronted by an officer who knew
him; the officers arrested him and removed him from the
premises. The police then conducted the search. Two offi-
cers, FBI Agent Bamel and another, went to the basement,
where they found a pair of camouflage pants neatly folded on
a chair. They searched the pockets of the pants and found an
identity card belonging to Garces and a key on a nylon key
chain, together with a photo of a young girl who turned out to
be Garces's daughter. The photograph of the key in the
record gives it the appearance of a car key, apparently to a
General Motors car though not necessarily a Cadillac. Agent
Bamel took the key and key chain and went upstairs and gave
them to the "seizing officer," Agent Bedford, who in turn
gave the key to Agent Buckley. Meanwhile, upstairs the
police found a green camouflage rain coat and a black mask in
the coat pocket, which they seized.
During the search the officers noticed a green 1970 Cadillac
with a white roof parked outside. (Tr. 1/6/97, p. 35.) The
officers phoned to find out who owned the car, and found it
registered in the name of a Sophia Garces, shown in the
registration as living at the same residence. Sophia Garces,
appellant's aunt, was in fact on hand. Agent Buckley asked
for her consent to search the car. She gave express written
consent to a search, and also told the officers that Angelo
Garces, known to her as Lolo, sometimes drove the car. (Tr.
1/6/97, pp. 64-66.) The validity of Sophia Garces's consent is
not challenged here.
Agent Buckley turned the key over to Detective Rivera to
use in searching the car. Rivera opened the car and in the
glove compartment found some papers with Garces's name on
them, and several cellular phones; more to the point, he
noticed a .45 caliber Colt semi-automatic pistol under the
front passenger seat. Rivera attempted to look in the trunk
but could not, since it was locked and could not be opened
even with the key from the pants. He left the items in the
car and then asked Sophia Garces whether there was another
key or set of keys for the car, to which she responded no.
(Tr. 3/12/97, p. 143.) The police then decided to have the car
towed to an FBI lot until they could get a warrant to search
it. When the warrant for the car was executed, the FBI
seized the gun from under the seat and various documents
from the glove compartment, some of which had Garces's
prints.
At the suppression hearing Garces focused on a claim that
the car search was illegal. But nested within that contention
was a claim that the seizure of the key itself was illegal; that
illegality supposedly invalidated the aunt's consent to the car
search. (Tr. 3/7/97, pp. 21-23.) As to the key, he argued
first that it fell outside the scope of the search warrant, and
furthermore that it was outside the "plain view" exception to
the warrant requirement because its incriminating nature was
not "immediately apparent." Coolidge v. New Hampshire,
403 U.S. 443, 466 (1971). See also Arizona v. Hicks, 480 U.S.
321, 326 (1987) (specifying that under the plain view doctrine
the officers must have probable cause to believe that the item
is incriminating). Here he no longer claims that illegalities in
the key's seizure undermined the aunt's consent, only that the
seizure of the key itself, and thus its later admission, were
invalid.
The government also focused on the car search during the
suppression hearing. In response to Garces's claims about
the key, the government appeared to assert that the key's
incriminating nature was "immediately apparent," but the
government never clearly explained why this was so. It
referred to evidence that the officers knew Garces used the
Cadillac when he made an illegal threat to potential wit-
nesses. In fact, though, the only knowledge of Garces's car
use shown by the testimony at the suppression hearing was
knowledge (acquired by the officers from Sophia Garces) that
he drove it, so far as appeared, for innocent purposes. The
judge ruled from the bench that the officers' use of the key in
searching the car was reasonable, given the link between
Garces and the car. "[I]f there had been no key they could in
due course have obtained one, and it also appears that they
could have opened the car without a key, or they could have
called a locksmith to make one. The consent not the key was
the key to the solution." (Tr. 3/7/97, p. 25.) Implicitly, the
judge seems also to have regarded as reasonable the seizure
of the key and its introduction as evidence, for the same
reason.
At trial the key acquired a greater significance than the
passing attention given to it in the suppression hearing might
have suggested. During its deliberations the jury sent back
to the judge a query asking whether "if someone has ... sole
control of the only key of the car, does that person have
constructive possession of everything in the car?" (Tr.
3/14/97 (a.m.), p. 2.) With both counsels' consent, the judge
declined to answer; the jury convicted.
* * *
The first question is whether the key can in fact be deemed
"seized" during the time between its discovery in the base-
ment and the gun-revealing search of the Cadillac.1 Here we
divide the process into two periods: the carrying of the key
from the basement up to the "seizing officer," and then its use
outside the house to open the car. The first was not a
seizure. In Arizona v. Hicks, where officers who had entered
an apartment because of exigent circumstances moved a
stereo set enough to be able to read its serial numbers, the
Court found no seizure (beyond that covered by their exigent
circumstances entry), on the ground that merely moving the
equipment around enough to spot the serial numbers did not
__________
1 The search of the pants pockets was plainly legitimate, since
items named in the search warrant, ammunition and documents,
could easily have fitted inside the pants pockets. See, e.g., United
States v. Jenkins, 901 F.2d 1075, 1082 (11th Cir. 1990); United
States v. Martinez-Zayas, 857 F.2d 122, 133 (3d Cir. 1988).
subject the defendant's "possessory interest" to any "mean-
ingful interference" beyond that occasioned by the warranted
search itself, 480 U.S. at 324-25. See also United States v.
Jacobsen, 466 U.S. 109, 113 (1984); Soldal v. Cook County,
506 U.S. 56, 61 (1992).2 Similarly, in United States v. Menon,
24 F.3d 550, 560-61 (3d Cir. 1994), the court found no seizure
in a searching officer's carrying a document from where he
found it to a more knowledgeable officer in the next room,
because moving the document did not meaningfully interfere
with the defendant's possessory interest in it any more than if
the more knowledgeable officer had been brought to the
document.
Although Garces's brief framed his argument about the
movement of the key as a case of unlawful seizure, at oral
argument he seemed to pursue the theory that it was a new
search. He invoked Hicks's finding that the officers' move-
ment of the stereo equipment initiated a new search because
it exposed serial numbers not otherwise accessible, and thus
"produce[d] a new invasion of respondent's privacy unjustified
by the exigent circumstances." 480 U.S. at 325. But Menon
rejected an attempt by the defendant to extend Hicks, similar
to what Garces may be claiming here. Menon argued that
the more knowledgeable officer's review of the documents
constituted a new search because his more complete under-
standing of the case's background enabled him to spot incrim-
inating aspects of the papers imperceptible to the first officer.
The Third Circuit denied the defendant's claim, relying on the
concept of collective knowledge: in determining whether offi-
cers have probable cause to believe an item qualifies as
evidence, the court must look to the aggregate knowledge of
the searching officers. More pragmatically, the court rea-
soned that a contrary ruling would just force law officers to
__________
2 Actually, the Court in Hicks said only that "the mere recording
of the serial numbers did not constitute a seizure," 480 U.S. at 324,
which leaves open the possibility that the separate moving of the
equipment, which constituted a search, also constituted a seizure.
But Justice Powell's dissent, id. at 332, confirms a reading of the
majority's opinion that the movement of the equipment was a
Fourth Amendment search but not a seizure.
have the most informed officer do all the searching. 24 F.3d
at 561-63. We agree. Thus, assuming any variation in the
scope of the various officers' knowledge, we find neither
search nor seizure in their carrying the key about the house
to determine its evidentiary value.
As for the use of the key outside the house to open the
Cadillac, we find it unnecessary to address whether this
action represented a seizure. A warrantless seizure may be
validated by the consent of someone with authority over the
property, United States v. Matlock, 415 U.S. 164, 170-71
(1974), and, as we explain below, Sophia Garces supplied that
consent.
Sophia Garces not only gave consent to the search of her
car, but at the same time said that Angelo drove it. From
Ms. Garces's statements that she owned the car driven by
Angelo, the officers could reasonably have inferred: (1) that
as the car's owner, Sophia Garces was the owner of a key
which the police had found in Angelo's pants and which they
reasonably thought would fit her car; (2) that as the car's and
key's owner, Ms. Garces was legally capable of authorizing
the police to use the key to search the car; and (3) that her
consent to search the car in fact exercised that authority.
Since Ms. Garces was the sole registered owner of the car, it
was a fair inference that she would be the owner of any keys
that opened it. One can, of course, imagine scenarios under
which she might have given her nephew more than mere
possession, e.g., some "estate for years" in the key (which
simply means an estate for a fixed period of time), see
Restatement (First) of Property s 19 cmt. a (1936), but in
judging what is reasonable officers can expect property rela-
tionships to be the normal or customary ones, not the unusual
or outr, at least until they are presented with contrary
information. See United States v. Jenkins, 92 F.3d 430, 437
(6th Cir. 1996). On the natural assumption that Sophia
Garces was simply allowing Angelo the use of her car, she
would normally have the power to revoke her consent to his
possession of the key. We may assume, without deciding,
that she could not herself have lawfully burrowed into his
trouser pockets in order to effect a transfer of possession to
the officers. But no such burrowing was necessary; the
officers had already lawfully secured possession of the key.
Finally, a reasonable reading of Sophia Garces's grant of
consent was that she implicitly exercised her power to autho-
rize use of the key to facilitate the search. Common sense
strongly supports that inference. While the officers could
have effected the car search by jimmying the lock or securing
the aid of a locksmith, that course offered her no advantage.
It would have carried some risk of injury to the car, and it
would have extended the period in which her own access to
the car was suspended. Thus, although we assume that
Garces had a sufficient possessory interest in the key to
entitle him to raise the Fourth Amendment issue, see Soldal,
506 U.S. at 61-62, the seizure (if any) was reasonable because
authorized by a party with apparently superior title.
Although Sophia Garces's consent legitimated the use of
the key to open the car, there is, of course, no reason to
suppose that it legitimated the officers' carrying away of the
key after the car search. (We assume arguendo that the
carrying away at that time played a causal role in the key's
availability for use at trial.) We conclude, however, that the
carrying away was lawful because, once the key was used to
open the car, its incriminating nature was "immediately ap-
parent." Coolidge, 403 U.S. at 466.
If the plain view doctrine's immediate apparency require-
ment were taken literally, it would mean that unless search-
ing officers had probable cause to grasp the incriminating
character of an item not specifically covered by a search
warrant at the precise moment they first spotted it, its seizure
would become unlawful for the duration of the search, regard-
less of information lawfully acquired later in the search.
Such an approach would condition the lawfulness of a seizure
on the fortuity of whether the item was discovered early or
late in the search: if officers entered premises under a
warrant, and first saw a kitchen knife and then a corpse with
its throat slit, they could not take the knife; but they could if
the sequence were reversed. Thus, although the phrase
"immediately apparent" sounds temporal, its true meaning
must be that the incriminating nature of the item must have
become apparent, in the course of the search, without the
benefit of information from any unlawful search or seizure.3
Cases interpreting the immediate apparency requirement
of the plain-view doctrine are few and mixed. Menon, dis-
cussed earlier, clearly takes the view that in assessing compli-
ance with the "immediately apparent" criterion, post-
discovery steps needed to establish the papers' incriminating
character "count" so long as they themselves are legitimate.
24 F.3d at 560-63. The First Circuit has described the onset
of probable cause in the plain-view context as a cumulative
process, using the metaphor of a light bulb: "The sum total of
the searchers' knowledge must be sufficient to turn on the
bulb; if the light does not shine during the currency of the
search, there is no 'immediate awareness' of the incriminating
nature of the object." United States v. Rutkowski, 877 F.2d
139, 142 (1st Cir. 1989) (emphasis added). And just last
month the Fourth Circuit held that the plain-view doctrine
validated a seizure of drug paraphernalia, despite the fact
that the searching officer did not recognize the incriminating
nature of the paraphernalia until he had left the room and
__________
3 Such unlawful search might, of course, include search of the
object itself. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)
("If ... the police lack probable cause to believe that an object in
plain view is contraband without conducting some further search of
the object ... the plain-view doctrine cannot justify its seizure.").
But any subsequent legitimate steps in the search process are as
effective as prior steps in supplying the requisite knowledge.
returned to view it a second time. United States v. Jackson,
1997 WL 780240 at *1, *4 (4th Cir., Dec. 19, 1997).
On the other hand, the Sixth Circuit has enunciated the
doctrine that the officers must have probable cause to believe
the item incriminating "at the time of discovery." See, e.g.,
United States v. Szymkowiak, 727 F.2d 95, 98 (6th Cir. 1984);
United States v. Beal, 810 F.2d 574, 577 (6th Cir. 1987). The
latter case, however, is quite reconcilable with our view.
Officers discovered fountain pens that they suspected were in
truth guns and seized them; only later, after disassembly and
lab analysis, did they raise their knowledge from mere suspi-
cion over the probable cause threshold. Id. at 576. Szym-
kowiak explains that the purpose of the temporal immediacy
rule is to "obviate prolonged, warrantless rummaging." 727
F.2d at 98. But as long as any "rummaging" must be lawful
for its yield to qualify (as under our view), it is unclear how
the Szymkowiak rule provides any additional deterrence to
prevent officers from unlawful invasions of privacy or posses-
sory interests. Just as searching officers "are not limited by
the fortuity of which officer first happened upon the evi-
dence," Menon, 24 F.3d at 561-62, we believe they should not
be limited by the fortuity of which piece of evidence they
happen upon first.
Our reasoning here may differ in detail from that of the
trial court and from the theories pressed by the government,
and we are mindful of the resulting risk of prejudice to the
defendant, see United States v. Dawkins, 17 F.3d 399, 408
(D.C. Cir. 1994) (citing Giordenello v. United States, 357 U.S.
480, 488 (1958)). But, as we observed before, at the suppres-
sion hearing the defendant did not focus attention on the
admissibility of the key. The lawfulness of the seizure of the
key was indeed at issue, but mainly as part of the challenge to
the car search. Thus the district court's aphoristic disposi-
tion of the issue ("The consent not the key was the key to the
solution") was a completely understandable telescoping of
issues presented by the defendant. If defendant had been
troubled by the ambiguity as to whether the finding of
consent encompassed use of the key, the burden was on him
to demand clarification. United States v. Mitchell, 951 F.2d
1291, 1299 (D.C. Cir. 1991); United States v. Caballero, 936
F.2d 1292, 1296 (D.C. Cir. 1991).
* * *
Garces raises two evidentiary points. He moved in limine
to exclude evidence of threats made by him with a gun that
looked like the weapon found in the Cadillac. The court ruled
that the victims of these threats could testify to seeing Garces
six days before the seizure and could describe the weapon he
had in hand, but that they could not speak of the threats. At
trial things did not work out exactly as intended. The threat
victims blurted out the threats, saying that Garces had said
he was "going to shoot" them. (Tr. 3/10/97, pp. 78, 149.)
While Rule 404(b) of the Federal Rule of Criminal Proce-
dure generally excludes evidence of "other crimes, wrongs, or
acts ... to prove the character of a person in order to show
action in conformity therewith," it permits such evidence for
such purposes as proving "motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of mistake or
accident." Appellant does not appear to claim here, however,
that the threat testimony was inadmissible under Rule 404(b),
but only that in admitting it the trial court abused its
discretion under Rule 403, because of its unduly prejudicial
effects. The "emotionally compelling" nature of the "death
threats" testimony was by itself enough to overwhelm deliber-
ative consideration of the "abstract," colorless charge of con-
structive possession of a firearm.
The judge was clearly aware of the potentially prejudicial
nature of the witnesses' references to the threats, and indeed
ruled them out. They were not directly elicited by the
prosecutor's questions, and there is no indication in the
record that the prosecutor encouraged the lapse. Indeed,
one of the blurtings occurred in response to a question by
defense counsel on cross-examination. (Tr. 3/10/97, p. 113.)
The judge took reasonable precautions to minimize the risk of
any misuse, instructing the jury that the threat incident
testimony was admitted only "for the limited purpose of
aiding you to decide whether the defendant possessed the gun
recovered by the police...." (Tr. 3/13/97, p. 64.) He went
on to caution them that they may not consider the testimony
about the threats "as evidence that the defendant had a bad
character or that the defendant has a criminal personality."
Id. Accordingly, we find no abuse of discretion in letting the
jury, properly instructed, proceed to judgment. Further-
more, any possible prejudice from the references to the
threats was well within the threshold of harmless error, given
the overwhelming strength of the case against Garces.
Garces also sought protection from being linked to the
Thomas Johnson murder for which the arrest warrant was
issued. The court ruled that the government could introduce
evidence of the warrant, execution of which had led to seizure
of the car and its contraband, as part of the explanatory
background, but said that the government witnesses must not
refer to the warrant's being for the crime of murder. At
trial, though the murder charge was not specifically men-
tioned, some witnesses referred to "homicide" investigators.
Garces argues that even the reference to the arrest warrant
was a violation of Rule 404(b), on the theory that the search
warrant alone adequately explained the officers' appearance
at Garces's house, while the homicide references improperly
linked him to a murder investigation.
Although the search warrant would have explained the
officers' presence in Garces's home on July 24, it would not
have explained what happened on their finding him there--
his arrest. Yet that was part of the story explaining the links
among Garces, the key and the car. So we reject Garces's
404(b) argument. That the investigators' homicide specialty
came out produced some but by no means all of the taint that
would flow from mention of arrest for murder; jurors would
reasonably suppose that homicide investigators must some-
times arrest for lesser crimes. Thus we find no abuse of the
court's discretion under Rule 403 to balance probative value
against prejudicial effect.
The judgment of conviction is
Affirmed.
Randolph, Circuit Judge, concurring: It should have been
simple enough to explain why the officers' seizure of the car
key complied with the Fourth Amendment. Sophia Garces'
consent to the search of her car carried with it her consent to
using the key to open the car door. See Florida v. Jimeno,
500 U.S. 248, 250 (1991). The officers had already lawfully
discovered the key in the defendant's clothing during the
search authorized by the warrant. When the officers opened
the car with the key, they found a gun. Upon completing
their search of the car, they relocked the door, had the car
towed to an FBI lot, and seized the key.
It does not take any intricate analysis to conclude that in
addition to towing the car away, the officers could take the
key as well. They could lawfully seize both items for the
same reason: the car and the key were plainly evidence of
defendant's criminal activity. Warden v. Hayden, 387 U.S.
294, 307 (1967), is directly on point. As the Court put it in
Soldal v. Cook County, 506 U.S. 56, 65-66 (1992), a plain view
seizure is valid so long as the probable cause standard is
met--it was here--and so long as the seizure is "unaccompa-
nied by unlawful trespass"--which it was in view of Sophia
Garces' consent to the search. Other decisions sustaining
seizures of the sort we have in this case are cited in 3 Wayne
R. LaFave, Search and Seizure s 8.1(c), at 623-24 (3d ed.
1996).
The majority gets itself into an unnecessary tangle by
supposing that the validity of the seizure of the key rests on
"the consent of someone with authority over the property.
United States v. Matlock, 415 U.S. 164, 170-71 (1974)." Maj.
op. at 7. In the first place, Matlock dealt only with the
validity of a search not a seizure. In the second place, the
legality of the seizure of the key (or the car for that matter)
rested on the principles explained in Soldal, not on Sophia
Garces' consent. Her permission enabled the officers to look
for evidence of criminal activity without getting a warrant,
but once they discovered such evidence, they did not need her
consent to seize it.
One other point is worth mentioning. I entirely agree that
the officers had not seized the key within the meaning of the
Fourth Amendment during their search of the premises, even
though they had removed it from its original location. It is
true that the Supreme Court has defined a Fourth Amend-
ment seizure as a "meaningful interference" with an individu-
al's possessory interests. E.g., United States v. Jacobsen, 466
U.S. 109, 113 (1984). But I do not believe the Court meant
this test to apply while a lawful search is ongoing. Whenever
federal officers conduct a search of premises pursuant to a
warrant, there is "a meaningful interference with" everyone's
"possessory interests" in everything in the line of the search.
Those present must stand aside. Until the search has ended,
they cannot grab things, proclaim "these are mine," and walk
away with the objects. If they tried anything of the sort,
they could be prosecuted. See 18 U.S.C. s 2231. The
"meaningful interference" test should be applied only after
the search has ended and the officers have taken property
away or have "secured" the premises from entry. This of
course means that the key was not seized until after the
officers used it to open the car door, at which point its
evidentiary value was plain.