Appeal from the United States District Court for the District of Oregon. D.C. No. CR-91-358-OMP. Owen M. Panner, Chief Judge, Presiding. This Opinion Substituted by Court for Withdrawn Opinion of January 8, 1993.
Before: Dorothy W. Nelson, Stephen S. Trott, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Trott.
Ralph G. Hatley appeals his conviction for three counts of distribution of cocaine and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). Hatley alleges on appeal that a search by police officers of an automobile that turned out to be inoperable violated his Fourth Amendment rights, and that the fruits of that search should therefore have been suppressed. Hatley also contends he was entitled to a two-level reduction under the Sentencing Guidelines for being a minor participant. United States Sentencing Commission, Guidelines Manual, § 3B1.2 (Nov. 1991).
The district court heard pretrial motions on December 12, 1991 and denied appellant's motion to suppress evidence. Appellant waived his right to a jury trial and the case was tried to the court on stipulated facts. The district court found appellant guilty on all four counts and sentenced him to 51 months in prison based on a Guideline range of 51 to 63 months.
An informant purchased one-sixteenth ounce of cocaine from appellant on three separate occasions. Following the three "controlled buys," the informant arranged to purchase one-half pound of cocaine from the appellant for $6,900.00. Appellant and the informant agreed that the appellant would deliver the cocaine to the informant's house on September 11, 1991.
Law enforcement officers surveilled appellant's residence and observed appellant retrieve a box from one of his cars, a Honda. Appellant took this box into his residence. He then returned outside to retrieve a second box from another of his cars parked in the driveway, a Corvair.
Following a telephone call from the informant to the appellant finalizing the details of the purchase, the officers observed appellant leave the residence with the two boxes. He placed one box in the Corvair and the second box in the Honda. Appellant then drove the Honda away from the house.
The officers stopped appellant, took him back to his home, and advised him of his Miranda rights. After a Discussion with Deputy Sheriff Susan Lambert in which she inappropriately threatened to take appellant's child into custody, appellant signed a consent form for police to search the two cars. Without a search warrant, law enforcement officers then seized eight ounces of cocaine from a closed container in appellant's Honda and 19 ounces of cocaine from a closed container in the Corvair. The Corvair was parked in the driveway of appellant's residence and according to appellant's testimony had been inoperable for four months. The officers were not aware that the Corvair was inoperable at the time they searched it.
In connection with a motion to suppress evidence seized from the automobiles, the district court held that because appellant believed his child would be taken into custody if he refused to consent to the search, the consent was not voluntary. The record fully supports this Conclusion. Deputy Lambert's manifestly improper behavior rendered defective the signed consent form as a basis for the admissibility of anything found in the defendant's cars. The court correctly held, however, that probable cause existed to search the cars independent of Deputy Lambert's misconduct, and the disputed evidence was admitted for all purposes. See United States v. Parr, 843 F.2d 1228, 1232 (9th Cir. 1988) ("police who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within the car may make a probing search of compartments and containers."); see also California v. Carney, 471 U.S. 386, 390, 85 L. Ed. 2d 406, 105 S. Ct. 2066 (1985) (vehicles subject to different treatment than fixed buildings); Murray v. United States, 487 U.S. 533, 537, 101 L. Ed. 2d 472, 108 S. Ct. 2529 (1988) ("'The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. . . .'" (quoting Nix v. Williams, 467 U.S. 431, 443, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984))).
Appellant contends the district court erred in refusing to suppress the cocaine seized from the Corvair. He argues that the vehicle exception does not apply because the Corvair was inoperable and on his property at the time of the search. The issue of the lawfulness of an automobile search is a mixed question of fact and law ...