United States v. Lynette Burnette, United States of America v. Theresa Burnette, United States of America v. Michael Curtis Burnette

1038 (1976). 401(1) See

employer. 39 U.S.C. § America, 242, 245, Burr, 60 UNITED STATES FHA v. Plaintiff-Appellee, 488, 490, (1940). The federal 84 L.Ed. consistently held that section courts have v. immunity from 401(1) waives Postal Service BURNETTE, Associates garnishment proceedings. state Defendant-Appellant. Robinson, 582 F.2d 1 Financial v. Services America, UNITED STATES of curiam); Beneficial Fi (5th Cir.1978) (per Plaintiff-Appellee, Dallas, (2d F.2d 125 Cir. nance Co. v. v. 1978); Corp. Electric Credit General v. Smith, (4th Cir.1977) cu (per 565 F.2d 291 BURNETTE, Theresa

riam); Furniture Co. United Goodman’s Defendant-Appellant. Service, (3d Postal 561 F.2d Cir. States America, STATES of UNITED 1977) curiam); May Department (per Stores Plaintiff-Appellee, Williamson, (8th Co. v. 549 F.2d Cir. Division, 1977); Oil American Oil Standard Cir.1975) Starks, (7th Co. v. 528 F.2d 201 BURNETTE, Michael Curtis Fashions, (per curiam). Sportique also See Defendant-Appellant. Sullivan, (9th Inc. v. 665 n. Nos. 81-1153 to 81-1155. Cir.1979) (dictum). Snapp v. United Cf. of Appeals, United States Court Service, Postal 664 F.2d 1329 States Ninth Circuit. Cir.1982) attempt by Postal (rejecting Ser enjoin garnishment); vice employee wage Argued April 1982. Submitted Long Island Trust v. United Co. States Decided Feb. Service, (2d Cir.1981) Postal 647 F.2d 336 amenability without discussion (assuming garnishment).

Postal Service statutory process ques- collection essentially garnishment proce-

tion here is why

dure. We are offered no reason Con-

gress would wish to treat Postal Service differently tax debts than it

employees’

treats their other debts. Nor are we of- any statutory languagе requiring

fered

such distinction.

I conclude that income tax California’s procedures pro-

collection do not offend the

visions of 5 and that their U.S.C. § re-

implementation this case Congress’

sult which furthers intent I private employer.

treat like a Service judgments. therefore reverse both

would

Norris, Judge, part concurred in Circuit part opinion. and filed

and dissented Tucson, Ariz., I. FACTS Frey,

Frank W. ette B. 24,1980, the afternoon of October On by Loan3 was robbed a lone Savings & Tucson, Ariz., for Theresa Alpert, Donn $5,049, in- gunman. black robber took B. previous- numerous “bait bills” with cluding ly recorded serial numbers. Removal Tucson, Ariz., for Mi- Zapata, Frank R. automatically trig- bills” also these “bait B. chael a surveillance camera in the gered Hawkins, Asst. Repp, Rhonda L. John G. photographed gunman Loan which & Ariz., Tucson, for U.S. Attys., robbery. the commission of the The robber was described various bank employees and customers as a slim approximately black male six feet tall. The wearing a robber was further described as sweatshirt, mask, jeans grey red ski blue or NORRIS, ELY and Circuit Before trousers, dark and tennis shoes. Because of BURNS,* Judge. Judges, and District mask, the ski witnesses to the gunman’s unable to describe the face. Pho- ELY, Judge: Circuit tographs taken the surveillance camera description corroborated the witnesses’ 24, 1980, University On October the robber. Savings & Loan Branch of Home Federal “Savings & Association bank, [hereinafter Loan”] As he left the the robber removed Tucson, Arizona, in was robbed. Subse- his ski mask and fled on foot. A bank Frank, сustomer, he gave Peter chase. As Burnette, Bur- quently, Lynette Michael robber, Frank and pursued the threw stones nette, and Theresa Burnette were arrested. motorist, passing shouted for assistance. A charged Michael was with armed bank rob- Hill, cries, heard Frank’s saw the Larry 2113(d).1 bery in violation of 18 U.S.C. § chase, driving his truck responded by and Lynette charged aiding with and abet- path. into This action forced the robber’s in of 18 ting armed bank violation in in pass the robber to front of Hill’s truck charged Theresa as an U.S.C. 2. § At this time flight. order to continue his after the fact to armed bank rob- accessory very opportunity Hill had a brief to see the in violation of 18 3. After a bery U.S.C. § joined robber. Hill then left his truck and trial,2 all three were jury guilty found Hill fleeing of the robber. As pursuit from his or her charged. appeals Each ap- them to closed the distance between the reasons set forth be- conviction. For feet, turned, the robber proximately four low, we affirm the convictions of Michael chrome-plated removed a revolver from the Lynette. bag carrying, but reverse that of he was and fired a shot at Theresa Burns, by dangerous weap- Judge, any person use of a life of *The Honorable James M. Chief device, United States for the District of District Court shall be fined not more than on or Oregon, by designation. sitting $10,000 twenty- imprisoned or not more than years, five or both.” 2113(a) provides: 1. 18 U.S.C. § Whoever, violence, by by force and or intimi- 2. Because certain evidence was admissible from, dation, takes, attempts or to take against Lynette, juries empaneled. two person presence any property or of another jury charged of render- One with the task money any thing belong- or or other of value ing a as to Michael and Theresa. verdict to, care, control, ing custody, or in man- solely Lynette. jury with other was concerned of, agement, any savings possession or ... association; and loan . shall fined not .. be trial, stipulated that Home Federal At it was imprisoned $5000 more more than or savings and loan and Loan is a federal twenty years, than or both. meaning 2113(g). of 18 U.S.C. § within the 2113(d) provides pertinent part: 18 U.S.C. § jurisdiction Accordingly, the rob- federal over “Whoever, committing, attempting or in to bery was established. commit, (a) any in subsection offense defined ., jeopardy person, рut .. assaults or He was later ground alleyway. hiding to the found in a quickly dropped Hill. Hill falling nearby dumpster. to Theresa remained near missed. Prior and the bullet there. however, opportuni- apprehended an the car and was At the Hill had ground, arrest, her Theresa had in her approxi- pos- face for time of to view the robber’s ty key to Room 123 of the Tucson Inn session four seconds. mately two screws that fit the rear license and saw the pursuit Frank continued his Lynette bracket of the Buick.4 start- plate waiting occupied automobile robber enter a complex. Upon ed to leave the motel see- Frank, black by persons. two other this, Sgt. descrip- Hallums broadcast a ing mechanic, the vehicle automobile described Lynette along request tion of with model, “white over blue” Buick. as a late stopped. she be fleeing car for a short Frank ran after Williamson, distance, shouting passing motorists and James also of the Officer pedestrians requesting they Department, note Police had been moni- Tucson Evelyn of the vehicle. toring the license number radio broadcasts and had and respondеd heard Frank’s shouts Sgt. description Lynette Cline heard Hallums’ white and blue Buick. by following the and his account of her activities. Officer plate able to see the license and, Cline was pursuant saw Williamson car and made a written notation instructions, Sgt. stopped Hallums’ her. was issued plate number. The license Upon being stopped, Lynette spontaneously and bore the number the state Nevada just purse.” that “I found this stated Offi- robber, description 162.” A “TFG Williamson then asked for iden- cer car, number was broad- and the license pocket the side tification. From cast over the radio. found, just claimed have purse she produced ette a traffic court summons bear- bearing the above described The Buick “Lynette the name Burnette.” Officer ing one approximately was seen plates license then asked for identifi- Williamson Sgt. Inn Paul hour later at the Tucson bearing photograph. Lynette cation Department. the Tucson Police Hallums of that her identification was in her stated Hallums saw two approached, Sgt. As he wallet was in “her wallet and that her One, near the car. later iden- black females Lynettе Williamson asked purse.” Officer Burnette, was near the Lynette tified as purse in a that how her wallet came to be brushing to be appeared driver’s door and “just Lynette replied she had found.” that female, later the door handle. The other the wallet into the “just slipped” she had Burnette, was near identified as Theresa Williamson, point, At this Officer purse. to be appeared the rear of the car and conduct, and fear- noting Lynette’s furtive removing plate. Sgt. the license Hallums run, her about to ordered ing that she was to a concealed location in order then went her under placed to sit on the curb and to further the actions of observe and Officer Wil- Lynette complied arrest. they ap- After a short time and Theresa. photo- for request liamson renewed his his and walked peared presence to notice Lynette started to graphic Tucson Inn. One identification. toward Room 123 of the quickly closed it. open Room 123 then She stepped of them inside briefly officer, stood, from the away then turned both walked back towards and then thereafter, again began open fol- to they were and once Shortly Buick. Williamson, fearing male later identified as Officer lowed a black weapon, withdraw a attempting to Michael Burnette. Michael started toward around, into an to see what she car, looked and then ran moved around Immediately objects present. after trans- key Room 123 and the screws were 4. The Theresa, again police porting re- actually the officer once seat of the found under rear key screws were transport the seat and the and Theresa to the Tucson moved car used to testimony clearly charged at trial The officer’s with the found. Police Station. The officer could have se- operation Theresa the rear seat established of that car had removed key day transporting and under the seat. prior creted the screws Theresa and saw her doing. something He withdraw that the handcuffed man at the Inn was “small purse and black” from the and also the person who had shot at him. Hill then purse “obviously noticed accompanied Bagley to the Tucson Police money. stuffed” station, with Officer Williamson they Station. When arrived at thе placed seized the and purse Lynette in Hill saw a handcuffed black male seated in Officer handcuffs.5 Williamson then hand- the rear of a police patrol car. Without ed the purse to another Tucson offi- prompting or questioning by Bagley, Hill scene, cer on the who arrived Officer immediately recognized this man as per- completed Strickland. Officer Strickland son who had shot at him earlier in day. the opening and found it to juries.8 The case went to trial before two Later, contain large money. sum at All three defendants were guilty found station, the was more thor- charged. appeals. Each Michael contends and oughly searched its contents invento- that the District Court erred in denying his ried. The was found to contain suppress motion to the identification testi- $5,048. Among money found in the mony of Hill. Larry Lynette contends that: purse were the bills” “bait taken from the (1) The District denying Court erred in her Savings & Loan. motion to suppress the evidence ‍​‌‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌​‌​‌​​​‌​‌‌‌​​‌​​‌‌‍seized from purse; (2) and

Search warrants were District Court erred obtained for the failing jury Buick instruct the that she used in the commission of could the rob- aiding not be convicted of bery abetting and Room 123 of the Tucson Inn. armed unless she knew A search of that Mi- Room 123 disclosed a chrome- chael was armed.9 Theresa contends that: plated .357 revolver containing four live (1) The District Court erred in permitting rounds and one spent cartridge, money Sgt. testify Hallums to that Theresa was Loan, bands taken from & “removing” plate the rear license from the two plates Nevada license bearing the num- Buick; (2) the evidence was insufficient ber A pair “TFG 162.”6 of white surgical establish that she was accessory an gloves similar to those used the robber the fact to (3) armed bank robbery; was found in the Buick. District improperly instructed the Upon learning that a suspect had been jury regarding the elements of apprehended, FBI Agent Bagley Lawrence accessory after the fact to armed bank rob- contacted Hill Larry and asked Hill if he bery. could identify the man who had fired at him. Hill stated that he agreed could and II. DISCUSSION to accompany Bagley to the Tucson Inn to A. Appeal Michael’s view the suspect. Upon Inn, arrival at the Hill saw a black man in handcuffs.7 Hill Michael’s sole appeal contention on was not asked to identify this man but later is that the District denying Court erred in testified that he was immediately aware his suppress motion to the pretrial and in- pretrial 5. robbery 2113(a), Officer Williamson at a testified hear- of unarmed bank under § see ing Lynette placed Faleafine, that 18, under arrest at the United States v. 23-25 time he ordered her to sit on (9th Cir.1974), the curb. jury’s finding the that robbery aided and abetted armed bank neces- Washington, D.C., plates 6. Two license sarily finding guilty included a that she was of also found in Room 123. robbery. unarmed bank Id. does not contend that the evidence was insufficient 7. The handcuffed man Hill saw at the Tucson support robbery. a conviction of unarmed Be- subsequently Inn was released. cause we reverse conviction for aid- supra. 8. See note 2 ing abetting robbery and armed bank because judge’s adequately of the trial failure to in- argues also the evidence was jury, struct the we need not consider the suffi- aiding insufficient to sustain her conviction for ciency of the evidence as to the “armed” ele- abetting robbery. armed bank Because ment. 2113(d) armed bank under is not a § separate offense, aggravated but an form

1045 long duе so as the identification testimony Larry process of Hill. court identification “showup” aspects of argues pretrial possesses reliability.” the sufficient Michael 98, Hill was by Brathwaite, 106, he was identified at which Manson v. 432 U.S. 97 unnecessarily sugges- 2249, 2243, (1977). conducted in such 53 140 L.Ed.2d S.Ct. of Hill’s the admission tive fashion 409 Biggers, In Neil v. U.S. at testimony in-court identification subsequent 199-200, 382, Supreme 93 the S.Ct. process him due of law.10 We disa- denied by set forth certain factors to be considered gree. determining whether identification testimo not determine whether We need ny possesses reliability sufficient indicia of Michael was “showup” the at which pretrial justify its admission at trial: unnecessarily sugges Hill was exhibited to witness to opportunity of the view analysis of our we as purposes tive. For crime, the at the time of the criminal the suggestive in to an sume that it was fact attention, degree accuracy witness’ of the degree. firmly It estab unnecessary prior description of the witness’ the lished, however, that does not process due criminal, certainty the level of demon- all in-court iden require suppression the the strated the witness at confronta- following unnecessarily sugges tifications tion, length the of time between the pretrial procedures. tive identification crime and confrontation.11 Field, v. 625 F.2d 862 United States weighed five factors must be Against these Rather, Cir.1980). we must determine “corrupting suggestive effect” of the whether, of sur light totality in pretrial procedure. identification Manson circumstances, “iden rounding pretrial 114, Brathwaite, v. 432 97 S.Ct. at U.S. impermissibly procedure tification was so effect, evaluating corrupting 2253. In substan suggestive give very as to rise to “the give we consideration to conduct irreparable tial likelihood of misidentifica agents tending part government States, v. 390 tion.” Simmons United U.S. witness’ attention on the de to focus the 971, 377, 384, 967, 19 L.Ed.2d 1247 88 S.Ct. Crawford, 576 fendant.” United States (1968). “It is the likelihood of misidentifi denied, 794, 439 (9th Cir.), 797 cert. F.2d right to eation which violates a defendant’s ” 157, (1978) L.Ed.2d 155 99 58 U.S. S.Ct. Biggers, due .... Neil v. process (footnote omitted).12 188, 198, L.Ed.2d analysis the above to the Thus, Applying (1972). unnecessarily sug even case, we conclude that the identifi- procedures present do “not violate gestive pretrial trial, challenges presence apparently and influence of other wit- the man- 10. Michael also identification, prior solicited the in- ner in which the Government nesses at the time of Hill, questioning govern- part court identification. When and the conduct on the identify prosecutor asked if Hill could tending agents ment to focus the witness’s pursued. Michael was the “black male” he had only attention on the defendant. We do not black man the courtroom. Application test “Crawford” question improper. believe the There yield would a result different case pursued by dispute that man Hill never through application of the from that reached Accordingly, question was in was black. “Biggers” test. It should be noted way prejudicial to Michael. final factors in the test are useful two Crawford sug- evaluating corrupting effect of the formerly employed a somewhat different 11. We procedure. gestiveness the identification standard, originally enunciated standard. That Field, 625 F.2d at 866-68. See United States v. Swenson, F.Supp. 1230- Parker (E.D.Mo.1971), adopted this court in Crawford, at 576 F.2d 12. United States Crawford, United States v. presence of “the also mandates consideration denied, (9th Cir.), 439 U.S. cert. of other witnesses at the time and influence of (1978), provided for consid 58 L.Ed.2d 155 evaluating prior cor- the identifiсation” eration of: procedures. rupting identification effect of the opportunity to observe witness’s relevant here because This is not factor perpetrator the commission at the time of crime, other witnesses were similarity between the witness’s “showup.” prior description the criminal and of identified at characteristics of the defendant at testimony Larry upon cation of Hill was suffi- testified trial that seeing the man to warrant its admission at ciently reliable at the Inn he had been immediately aware only Hill viewed the robber Although trial. the man was not the person he had seconds, twelve view approximately his pursued earlier at Savings & Loan. was range. unobstructed at close Further, Hill testified at trial that he had Hill, When the turned robber and shot recognized pur- Michael the man he had Hill opportunity view the robber’s prior sued to any police directing conduct unmasked a period approximate- face for of his attention to Michael. Under these cir- ly four and from a seconds distance of cumstances, we conclude that Hill’s identifi- four feet. It be reasonably could inferrеd cation testimony sufficiently reliable to that at the life threatening moment when permit its admission at trial. Accordingly, fired, the robber turned and Hill’s attention the conviction of Michael Burnette is af- sharply was focused on his assailant. Hill firmed. male, described the robber as being black approximately six feet tall weighing Lynette's Appeal B. approximately pounds. Hill further de- Lynette raises several arguments ap- scribed the robber as clean shaven First, peal. she contends that at the time jeans and wearing blue or dark trousers. stopped she was by Officer Williamson he Hill’s description was an accurate statement and, suspicion lacked founded to detain her of physical characteristics of Michael accordingly, evidence subsequently Moreover, Burnette.13 description Hill’s of seized from her was inadmissible as the gun by carried the robber matched the Second, the fruit of an unlawful detention. revolver found in Room 123 of the Tucson Lynette contends that she had a reasonable Inn.14 At the time of the “showup” at the expectation she was Station, Tucson Police Hill exhibited a high carrying that, at thе time of her arrest and degree certainty that Michael was the accordingly, the District Court’s denial of Later, man trial, who had shot at him. her motion to suppress contrary based on a Hill testified that at the time “show- Third, conclusion error. con- up" he immediately certain that Mi- tends that the District Court erred in re- chael was the man.15 Finally, the “showup” fusing to instruct the jury that she could at the station occurred no more than not be convicted of aiding abetting two hours after Hill had pursued the flee- armed bank robbery unless she was aware ing robber. that Michael was armed. We address these Nor does suggestiveness contentions in sequence. itself “showup” appear to have influenced Hill in his identification of Michael. It contention that her initial should be noted that detention shortly before his con- Officer Williamson was unlaw frontation with Michael clearly at the Tucson Po- ful without merit. It is well Station, that, lice Hill had seen another hand- settled under certain limited circum stances, cuffed black male at the Tucson Inn. Hill law may enforcement officers points allegedly description gun 13. Michael to one erroneous 14. While an accurate previously may strictly statement made Hill. Hill had not be relevant to evaluation of the Michael, reliability stated that the robber wore a T-shirt with Hill’s identification of it witnesses, sleeves. Other and the & does tend to indicate that Hill was an accurate camera, that, Loan sharply surveillance establish observer whose attention was focused fact, the robber wore a sweatshirt. We note at the time of the confrontation. that other witnesses also established robber wore a T-shirt under the sweatshirt and recognized 15. Hill testified that he Michael possible it is therefore that Hill did not err in even before the car in which he was stating that the robber wore a “T-shirt.” riding complete stop. had come to a any event, we believe that the other indicia of reliability preclude any were sufficient infer- unreliability upon single, ence of based discrepancy. minor

1047 briefly suspect investigative detain a suspicion founded existed to briefly detain See, Ohio, purposes. e.g., Terry v. 392 U.S. and question Lynette regarding her possible 1, 1868, (1968). 88 20 L.Ed.2d 889 S.Ct. involvement in the permissible a detention is when Such based & Loan.

on an officer’s “foundеd” or “reasonable” Lynette next contends that the District suspicion that “criminal activity may be erred in ruling that she lacked a 30, afoot.” Id. at 88 at 1884. S.Ct. Found- expectation reasonable of privacy in the suspicion16 ed exists when an officer is purse she was carrying at the time of her facts, aware of specific together articulable arrest and challenge therefore could not with the rational inferences drawn there- legality of its search and seizure. The court from, suspicion warrant reasonably based finding its decision on its that person may to be detained have ette had purse. abandoned the committed or is about to commit a crime. Brignoni-Ponce, United v. 422 States U.S. It firmly is established that 873, 880, 2574, 2579, 95 S.Ct. 45 L.Ed.2d 607 warrantless searches of abandoned property Huberts, (1975); United v. 637 States F.2d do violate the Fourth Amendment. 630, (9th Cir.1980); 634-35 ‍​‌‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌​‌​‌​​​‌​‌‌‌​​‌​​‌‌‍United v. States States, 217, 240-41, Abel v. United 362 U.S. Gollom, 624, (9th Cir.1979). 614 F.2d 628 683, 697-98, 80 (1960); S.Ct. 4 L.Ed.2d 668 Kendall, 199, United States v. 655 F.2d 200 case, In the the Tucson (9th Cir.), denied, 941, cert. 455 U.S. 102 police clearly officers17 suspi founded 1434, (1981); S.Ct. 71 L.Ed.2d 652 United cion to Lynette. policé detain The were Diggs, 731, v. 649 Cir.), States F.2d 735 aware approximately one hour earlier denied, cert. the Savings & Loan had been rоbbed an (1981). L.Ed.2d 387 One who has voluntari armed black male. They aware that ly property right abandoned has no to com the robber had fled in a white over blue plain of its search or seizure. United States ’containing Buick at least one other black Kendall, v. 655 F.2d at 200. The intention person and bearing plate Nevada license expectation “to retain a reasonable of pri “getaway” number 162.” The “TFG car vacy is determinative of abandonment.” was found at the Tucson Inn. Two black Jackson, Id. United See States v. 544 F.2d females, Theresa, Lynette and were near Thus, (9th Cir.1976). if person Lynette the car. or wiping brushing alleged property to have abandoned intends door apparent driver’s and Theresa was to retain his or her privacy interest ly removing plate. the rear license The allegedly property, abandoned there has reasonably officers infer could person been Whether a abandonment.. was somehow connected with intends to retain a interest was, Theresa, car and with the aid of at objective property determined stan tempting destroy connecting evidence Kendаll, dards. United States F.2d Upon Sgt. her with the car. seeing Hal determination, at 201. lums, making this we the two women went to Room 123 of “words, acts, party’s look to the and other Shortly male, the Inn. thereafter black Jackson, robber, objective facts.” United matching description States (citation omitted). emerged from 544 F.2d at 409 Room 123 and ran into an Court, alleyway. sepa relying principally Lyn Theresa and then District rated with returning “just Theresa to the car and ette’s statement that she had found” Lynette attempting to leave the motel com concluded that had evi plex. knowledge Given the and observa denced intention to abandon the officers, uphold finding tions of the we believe that We must unless we find suspicion probable suspicion 16. Founded is identical to “reasona- or to establish founded Bernard, suspicion. ble” cause. United States v. (9th Cir.1979). may firmly It is established that one officer rely provided by on information another officer “clearly it erroneous.”18 United States v. Although we hold that the Dis trict Court erred in 735; ruling that Lynette Diggs, 649 F.2d at United States v. abandoned the purse, we conclude that 650, (9th Humphrey, Cir.1977). 549 F.2d evidence seized from purse was never Our review of the record leads us to con- properly theless admitted trial. We may clude that the District Court clearly erred affirm the District Court on basis fairly finding in had abandoned her Lynette presented that, by record as a matter of purse. interest in the law, sustains the judgment. Dessar v. Although Lynette initially disclaimed Bank of America National Trust Savings & Ass’n, 468, (9th Cir.1965). Our ownership purse, subsequent of the con- review of the record in the case during duct the confrontation with Officer leads us to conclude that Lynette’s purse strongly Williamson indicated her intent to properly seized and searched incident retain a expectation “reasonable of privacy to a lawful arrest. in purse.” At one point At the initially time he stopped Lynette, confrontation, referred to the Lynette purse Officer Williamson had suspicion founded “my purse.” Much more compelling, that she was somehow involved in the rob- however, was Lynette’s try- behavior while bery Savings During & Loan. ing comply with Officer Williamson’s re- discussion, course of their this founded sus- quest for photographic identification. picion ripened probable into cause to arrest. trying wallet, While Lynette retrieve her When hailed by Williamson, Officer Lyn- possible took all precautions to retain her immediately ette replied highly inap- a privacy in the contents of purse. She propriate manner “just that she had found” placed stood and her body between Officer the purse she was carrying. appeared She Williamson purse. and the She did not reluctant to furnish the photographic iden- tification completely open requested by the purse but Officer Williamson. instead Her furtive conduct convinced Officer Wil- merely opened partially it and reached in to liamson that she was about to flee. At this Moreover, extract her wallet. at no time point, Officer placed Lynette Williamson did a relinquish indicate desire to under request arrest and renewed his physical possession Rather, the purse. identification. When attempted to she continued to purse hold the until it was obstruct his view as she withdrew a small physically possession removed from her object black from the Officer Wil- Officer Williamson.19 Under these circum- quite liamson properly purse. seized the stances, we conclude that Lynette intended The was then handed to Officer to retain a “reasonable expectation pri- Strickland whose brief search of the vacy” in the purse and the District Court’s a large disclosed amount of cash. A subse- finding of abandonment clearly errone- quent search of ous.20 reyealed station additional evidence.21 Gypsum (1981); Canady, United States v. United States United States v. 615 F.2d 694 Co., 364, 395, 525, 542, denied, (5th Cir.), 68 S.Ct. cert. 449 U.S. 101 S.Ct. (1948), Supreme L.Ed. 746 (1980); Court defined 66 L.Ed.2d 78 United States v. clearly erroneous Jackson, standard as follows: (9th 1976). 544 F.2d 407 Cir. finding “clearly A erroneous” when al- though it, support there is evidence to supra. 20. See note 18 reviewing court on the entire evidence is left with the definite and firm conviction that a Safeway Money 21. Two Orders were found in mistake has been committed. Lynette’s Savings A teller at & Loan testified that had entered the majority previous 19. The cases in which the Savings prior Loan & to the and at- upheld finding courts have of abandonment tempted Safeway Money to cash Order. ownership have involved both a denial of or Money Orders were admitted into evidence property physical interest and a relin attempt circumstantially provе quishment property. See United States ette had reconnoitered the & Loan for Kendall, Cir.), denied, 655 F.2d 199 cert. preparation robbery. Michael for the 455 U.S. 102 S.Ct. 71 L.Ed.2d 652 (1974), Supreme upheld a war- Fourth Amendment It is settled ‍​‌‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌​‌​‌​​​‌​‌‌‌​​‌​​‌‌‍clothing an arrestee’s rantless search of incident may, a officer police doctrine approxi- station police conducted at arrest, contemporane conduct a to a lawful after the arrest. The mately ten hours per of the arrestee’s ous warrantless search holding on the necessari- grounded its which the arrestee and of the area into son one holds expectation privacy reduced ly weapon destroy or reach to retrieve a might under ar- person placed in his Belton, 453 York v. U.S. evidence. New Chadwick, v. 433 rest. United States See 2860, (1981); 768 454, 69 L.Ed.2d 101 S.Ct. 1, 2476, (1977); 97 53 L.Ed.2d 538 U.S. S.Ct. 752, California, 89 S.Ct. v. 395 U.S. Chimel Monclavo-Cruz, v. 662 F.2d at United States 2034, (1969). 23 L.Ed.2d 685 Containers case, Lynette In the had present 1290. be may area also found within that purse lawfully her been arrested with the ar contemporaneously searched that arrest. The con- searched incident to is not such a container rest. Id. Where exposed to purse fully tents of the had bеen however, is in but immediately, searched and, expecta- police consequently, police to the station stead taken privacy purse necessarily tion of later, required. a warrant is Unit searched significant degree. a Because reduced Monclavo-Cruz, 662 F.2d 1285 ed v. States expectation privacy in the Lynette’s case, Cir.1981). Lyn (9th In the significantly reduced purse been immediately upon purse was searched ette’s search, subsequent we believe the initial cursory fashion in a somewhat her arrest police search at the station was warrantless subjected thorough to a more and later hold that once an Accordingly, valid. we During station. police search at been possession item in an individual’s has station, additional evi police search at the searched, subsequent lawfully seized in the ini dence not discovered apparently item, as it remains long searches of that so must search was found.22 We deter tial uninterrupted possession legitimate impres apparent mine a first question be conducted without a police, may search at the whether the warrаntless sion: warrant.23 given the initial station was valid police con- fully our decision here is We believe incident to arrest. lawful search with the prior with our decisions and sistent warrantless We believe that the Fourth Amend- underlying the policies was valid and police search at the station requirement.24 Requiring ment’s warrant from that search the evidence obtained subsequent for procure a warrant trial. The Fourth admitted at properly already lawfully of an item searches ex only “reasonable protects Amendment addition- way provide would in no searched Illinois, Rakas v. privacy.” legitimate individual’s pectations protection al for an 421, 387 item 128, 99 58 L.Ed.2d The contents of an 439 U.S. S.Ct. interests.25 Edwards, longer simply 415 are previously searched (1978). In United States 1234, 800, private. 39 L.Ed.2d 94 S.Ct. U.S. establish to be introduced to During dence would have search of the at the 22. during station, found in discovered numbers of the bills whether items seized were the serial compared subsequent Lynette’s purse with the serial sta- or the initial search “bait bills” and were found numbers of the tion house search. Also, Safeway Mon- match those numbers. ey apparently discovered аt Orders were that, require likely warrants were we to It is time. searches, police subsequent would officers for routinely from containers all items remove holding limited to is of course

23. Our here search and time of the initial seized at lawful. initial search was situations where the thereby all items were discovered insure that might any questions that We need not address Thus, requiring subse- a warrant time. presented has been the item searched be where unlikely provide quent would be searches prior the second returned to the owner priva- protection for individual additional search. cy. difficulties the administrative 24. We also note contrary adoption Evi- rule would entail. of a aiding element of the offense of holding fully believe our here is and abet We also armed bank ting robbery. consistent with our decision in United United States v. Monclavo-Cruz, Jones, 1038, (9th Cir.), 662 F.2d 1285 cert. States denied, 951, 2179, Cir.1981). In Monclavo-Cruz defendant (1979). at the time of her re carrying give L.Ed.2d 1056 Failure to Although arrest. could have been quested jury instruction to that effect con arrest, lawfully searched at the time of see stitutes reversible error. United States v. Belton, New York v. 453 U.S. 101 S.Ct. Short, (9th Cir.), 493 F.2d 1170 on reheаr 69 L.Ed.2d it was not. Subse- denied, ing, 500 F.2d cert. 419 U.S. station, at the quently, 1000, 317, (1974). 42 275 95 S.Ct. L.Ed.2d a warrantless search of conducted trial, requested At in Lynette an holding In the search to be a viola- guilty struction that she could not be found Amendment, tion of the Fourth we relied armed aiding abetting robbery of and bank principally strong expectation of upon proof beyond absent reasonable doubt lug- one holds in the contents of privacy that she knew Michael was armed. The gage, purses, and similar containers. Be- give requested District Court refused to cause the search was not conducted at the timely instruction and made a ob arrest, expectation time of the defendant’s jection. under Accordingly, United States exigen- of in the survived the privacy Short, conviction supra, Lynette’s v. must justifying cies a warrantless search. Ac- portion be reversed as to the armed cordingly, subsequent warrantless offense and the case remanded. The search conducted at the station house in- may retry Lynette Government elect upon truded the defendant’s reasonable ex- aiding abetting armed bank robbery.26 pectation of privacy and therefore violated Alternatively, may Government decide the Fourth Amendment. United States v. event, retry. not to In that the District Monclavo-Cruz, 662 F.2d at 1290. The remand, may, resentence markedly case is different. charge aiding under the abetting lawfully ette’s was searched at the robbery.27 unarmed bank United States v. time of her arrest and her expectation Short, supra. thereby signifi- was reduced, cantly destroyed. if not The sub- Appeal Theresa’s C. sequent search the station simply at did not appeal. Theresa raises three issues on expectation pri- violate “reasonable First, she contends that the District Court 128, Illinois, vacy.” See Rakas v. 439 U.S. permitting Sgt. testify erred in Hallums to 421, S.Ct. 58 L.Ed.2d opinion as to his that Theresa was “remov- Finally, Lynette contends that ing” plate the rear license from the Buick. refusing District Court erred in to instruct Second, she contends that the evidence was the jury that she could not be convicted of support insufficient her conviction as an aiding and abetting armed absent after the fact to armed bank rob- accessory proof beyond reasonable doubt that she bery. Finally, Theresa contends that knew Michael was аrmed. This contention improperly jury trial court instructed and, has merit we accordingly, Lyn reverse being to the elements of the offense of an ette’s conviction and remand for further the fact to accessory after armed bank rob- proceedings. Because we find these contentions to bery. merit,

Knowledge principal has we affirm Theresa’s be without con- gun and intends to use a is an essential viction. clearly

26. Because we 27. The evidence was sufficient to con- have not evaluated the suffi- ciency aiding abetting of the evidence to establish vict unarmed supra. guilt charge, express opinion robbery. See note 9 of that we bank whether retrial would be barred double States, jeopardy. See Burks v. United 437 U.S. (1978). 98 S.Ct. 57 L.Ed.2d 1 Accordingly, Sgt. the admission of trial, court to Buick. Theresa moved the Prior to was, most, that, opinion testimony Hallums’ testifying from Sgt. Hallums preclude Cox, error. harmless See United States removing was Theresa opinion, in his 633 F.2d at 876. and white from the blue plate rear license and, trial, was denied Buick. The motion contends that the evidence Theresa next testify permitted Hallums was Sgt. support insufficient to her conviction.28 plate. the license removing Theresa argues that insufficient particular, she presented beyond to establish evidence opinion tes admissibility that she knew Michael a reasonable doubt 701 and 702 of pursuant to Rules timony, gun in the commission of the rob- used Evidence, is committed Federal Rules of bery. judge trial to the sound discretion if it will be overturned and his decision outset, that ac At the we note discretion.” a “clear abuse of constitutes knowledge, tual as an element of the of Cox, United States fact, accessory fense of denied, Cir.1980), 454 U.S. cert. through circumstan may entirely be shown (1981); Unitec 70 L.Ed.2d Mills, tial evidence. United States v. Safway Co. of Ore Corp. Beatty Scaffold Cir.1979). (9th Michael es F.2d Cir.1966). Opinion gon, 358 F.2d robbery in a caped from the scene if it lay of a witness is admissible testimony accompanied by and white Buick blue of “(a) rationally perception based on the is possibly per two other black least one (b) to a clear under helpful the witness and removing was later seen the sons. Theresa or the determina standing testimony of his The plate jury license from the Buick. a fact in issue.” Fed.R.Evid. 701. tion of rationаlly have inferred that Theresa could opinion testi Sgt. believe that Hallums’ at the persons We was one of the Buick percep on his she saw and mony rationally escape was based time of the and that Larry Michael shoot at Hill. Fur was to a determination of heard helpful tions and ther, could have inferred that jury Hal the Sgt. a fact in issue. At the time of the car with a Theresa saw Michael enter Inn, the rear arrival at the Tucson lums’ Moreover, key had the gun. drawn Theresa still affixed to the Buick. plate license was at the time of possession to Room 123 in her at the rear of the Buick Theresa was chrome-plated The revolver her arrest. appeared holding was an instrument robbery in the commission of used Shortly thereafter be a screwdriver. jury in 123. The could later found Room else plate missing. No one rear license concluded that Theresa saw rationally have it the vehicle. While would approached that Michael in the room and knew gun the District been better had perhaps have rob it in the commission of the had used Sgt. limited Hallums to statement we conclude bery. Accordingly, facts, we find no abuse underlying a rational permit evidence was sufficient Sgt. Hallums’ in the admission discretion doubt beyond conclude a reasonable jury to Even were we to find testimony. opinion gun in knew Michael used that Theresa be opinion Hallums’ Sgt. the admission of robbing & Loan. error, however, justify not rever it would were found on fingerprints jury sal. Theresa’s contends that Finally, Theresa plate found Room to inform the inadequate the Nevada license instructions arrest, Theresa had a reasonable beyond of her it must find jury 123. At time Michael was arm- fitting the rear Theresa knew on her two screws doubt that person accesso- guilty find her as an white ed in order to of the blue and plate license bracket guilty beyond jury a reasonable argues to find Theresa that the trial court erred 28. Theresa also doubt, judge ‍​‌‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌​‌​‌​​​‌​‌‌‌​​‌​​‌‌‍not acquittal. the trial did denying we conclude that Because her motion for denying permit the motion. err in was sufficient to a rational the evidence robbery.29 fact to armed bank each instruction in ry light after the of all others. Al- disagree. We it though might preferable have been the court to reiterate the elements of adequacy jury instruc 2113(d), jury we believe the clearly § an examination of tions determined instructed that Theresa must have had ac- the instructions as a whole. United States tual knowledge of each element Mills, instructing 597 F.2d at 700. In 2113(d), including knowledge of the use § jury, Judge the District stated the outset gun, guilty of a order to be as an accesso- jury single that the was “not to out one ry after the fact to armed bank robbery.30 instruction alone ... but ... con [was to] We therefore conclude that in- jury sider the instructions as a whole and each in structions, whole, taken sufficiently light judge of all others.” The trial jury informed the that Theresa’s knowledge then stated the elements of the offense of that Michael was armed was an essential armed bank under 18 robbery U.S.C. element of the offense of an accesso- elements, 2113(d). these he stating § ry after the fact to armed bank robbery. stated gun that use of a in the commission robbery of the bank was an essential ele III. CONCLUSION 2113(d). ment of the offense under He § The convictions of Michael and Theresa that, jury then instructed the in order to Burnette are affirmed. The conviction of guilty accessory find Theresa as an Lynette Burnette for aiding abetting fact, beyond it must find a reasonable armed bank is reversed and the doubt “that she knew that Michael Curtis case remanded for proceedings further Burnette ... the bank robbery [committed] inconsistent with this Opinion. ... in violation of Title United States PART, AFFIRMED IN REVERSED IN 2113(d).” Code judge Section The trial PART. requisite knowledge defined the as “actual knowledge” that Michael had violated 18 NORRIS, Judge, Circuit concurring in 2113(d). U.S.C. Theresa contends that § part dissenting part: the trial judge should have re completely stated the elements of a fully violation of I concur with the majority’s affirm- 2113(d) when instructing jury the as to ance of the § convictions of Michael and the elements of an after the accessory agree Theresa. I also that Lynette’s con- fact to robbery. According armed bank to viction for armed must be reversed Theresa, judge the trial by referring grounds faulty erred on jury instructions. I to the code restating however, section without the disagree, majority’s with the con- elements of a violation of that section. We clusion that the evidence of the contents of disagree. The judge previously trial had Lynette’s purse discovered the stated in full thе elements of a violation police search at the station was admissible 2113(d). He jury had told the to consider § at her trial. court, argument trial, judge presided In before this the Govern- at and Theresa that, by juries ment contended because Theresa failed to were tried different and for different request specific regarding a instruction knowl- offenses. Because we conclude that the in- edge, object given fully adequate, and because she failed to to the structions we need given, instruction Brown extends we must affirm her convic- not decide whether the rule “plain presented tion unless we find error.” Theresa ar- to the situation in the case at bar. gued that, under our decision in United States judge gave Brown, 30. We also note that the district (9th Cir.1977), Lyn- 562 F.2d 1144 instruction on the lesser included offense of request specific ette’s for a instruction and ob- accessory after the fact to unarmed bank rob- jection given to the instructions should be bery despite the fact that the evidence conclu- imputed to Theresa. sively established that the robber was armed. Brown, In we held that “when one codefend- emphasize served to We believe this instruction objects thereby brings ant the matter guilty further that Theresa could not be found court, objections by the further attention accessory the as an fact to armed bank unnecessary.” other defendants Id. are robbery unless she knew Michael was armed. Here, however, although single n. 1. a majority court the evidence

The district admitted The seems to feel that it is purse on the basis of Lynette’s seized from a novel issue deciding of constitutional law. her its had abandoned finding however, assumption, this misper- To make by stating interest in her privacy the nature of the before question ceives us. “just had arresting officer that she the I could not Certainly, quarrel with the ma- presented relevant question found” it. The if what it jority intends to hold is that an therefore, whether by appeal, Lynette’s search of Lynette’s purse extensive at the finding court had the district erred arrest can time of her be followed subse- I constituted abandonment. conduct designed warrantless quent solely searches was no agree majority there with uncover items or to possibly overlooked purse, and that abandonment inventory already furthеr evidence discov- from it be admitted evidence seized cannot It is no more sense to ered. than common on this basis. suppose thorough- that once have police on, however, majority goes to find The ly purse, again searched a can search it they differ- totally evidence admissible on a any later without warrant to discover majority’s As I ground. ent understand they may have missed. evidence earlier police only not seized theory, it is that arrest, Lynette’s at the of her misunderstands, time majority What how- search of it but conducted such an extensive ever, constitutional, that the issue is is not a as to its expectations privacy that her factual one. not question but a she no destroyed. contents were Because thorough Lynette’s whether a search of interest longer privacy would have in- destroyed her continues, theory the Fourth terests, thorough but whether a search was bar to further presented Amendment undertaken. seems to Judge Ely in fact it, and the evidence warrantless searches “cursory” that at least or assume a “brief” in it at the station discovered was done the time of seаrch admissible at her trial. therefore arrest, supra pp. see 1048-1049. No record two reasons. point I dissent on this for that offered. support conclusion is on a First, majority’s is based decision fact, review of the transcript reporter’s litigated by was not or theory argued the trial not suppression hearing before the trial court and parties litigate clear that the did not parties makes government raised either or whether the issue searched the district Responding only appeal. arrest, purse at the but ette’s time of abandonment, parties of finding court’s major- evidentiary no basis for provides not address whether question here did that was con- ity’s conclusion such a search expectation have lost of Lynette could her ducted. Attempts to way. other privacy with in accord supplemental elicit briefs factually incom- Because record is produced 4.21 Ninth Circuit General Order inappropriate to reach the it is even plete, responses, parties confused as the only impact of the initial investi- question were un- grasp question they failed to Lynette’s privacy. оn of gation expectations majori- asked to address. The expectedly state, record on the in its Based therefore, ty’s spoil sua te a opinion, decides however, be the offi- it can said that litigated: question that has not been purse. simply is Lynette’s cers seized There at purse was searched whether they to conducted no evidence indicate arrest, so, and, whether the time of her if they of it at examined any search all until destroy to enough the search was extensive hours later. it at station some privacy purse expectations abandonment, and was searched at station. there was before it Because briefing requesting provides 4.2 that: to additional Ninth Circuit General Order consideration issuing disposition upon argument panel determines to a case and oral before If a decide upon particular point. significant point predicated of a not raised basis briefs, give parties serious their it should seized, merely Q. officers Would you

because the but did describe a little more ful- ly currency you seeing search, Lynette’s purse, gov the case is that time. Cruz, erned United States v. Monclavo Money A. don’t remember the exact Cir.1981), 662 F.2d 1285 which holds —I denomination of the bills that I saw suspect that neither the arrest of a nor the out, coming you but know— belongings operates deprive seizure of his to there — money purse was—the was obviously privacy him of his Fourth Amendment And, stuffed. as she trying (search rights. Id. at 1290 invalidated purse, take her hand out of the some was seized suspect’s purse kept when money protruding out. I didn’t exclusively police custody, within but was pay much attention to it at the time. I not searched until some time after her ar was more concerned with what was rest) (“searches possessions within an her hand than going what she was jus arrestee’s immediate control cannot be bring purse. out of her by any expectations priva tified reduced Q. then, What did do you you cy caused by the arrest omit [citations these observations? made ted]”); also, Chadwick, see United States happened A. It fast —what she was tak- ing purse out of the was a wallet. I (1977) (“Though surely L.Ed.2d 538 a sub took the and wallet from her. infringement respondents’ stantial use At this time another officer —Officer possession, the seizure their foot [of my Strickland —had come to side. I had been they locker after did not arrested] purse. handed him the Miss Burnette respondents’ legitimate expecta diminish was under arrest. I handcuffed her. tion that the footlocker’s contents would R.T. at 144-45. Officer Williamson said Schleiss, private”); remain United States nothing else about the on direct ex- (8th Cir.1978) (arrestee F.2d did amination at the suppression hearing. In- not relinquish expectation in deed, responses questions his on cross and it). briefcase despite police seizure of redirect examinations reveal his lack of knowledge about the contents of the What the record demonstrates cross, On defense counsel focused arresting officers saw money protruding opportunity ette’s to have withdrawn iden- from Lynette’s bag, but were more con- tification purse, from the but did not ask it, cerned about the pulled wallet she from Officer Williamson whether he knew what and searched the purse only contents of the was in it: after they arrived at the stationhouse. The Q. pull What did she try out of her following citations are illustrative. purse? apprehended officer who idea, time, A. I have no sir. testifiеd not that he searched the but Q. you Did see what she was trying to rather that he saw money coming out of the pull purse? out of her purse and then seized it. No, A. sir. Q. Williamson, you’ve Officer I believe Q. Okay. you Did take the away indicated that you then [when from her you before could see what it turned to withdraw identification from pull was she tried to out of her purse? purse] her moved your location so that Something A. was coming out of her you might purse. see the you Would I purse; thought it wise to take the tell us then you what observed? purse from away her. Q. Okay. You didn’t want to see what drawing A. something She was —small coming purse; you just out of the and purse; black-out of the I couldn’t away took it from her. Am I correct? see what. Several bills—different de- Yes, A. sir. nominations of money be seen —could coming purse, out of the as her hand testimony by R.T. 157-58. Other Officer out of moving purse. confirms he Williamson that did not himself him, pass Lynette’s purse nothing it did thorough examination conduct a more extent of the he him- suggest search at that time. self conducted Officer, Q. you produce asked her to identification, and she said she some Q. purse?] had [Who in didn’t she? purse, had it purse sitting A. It was—the was either A. Uh-huh. or he had it in his hands. ground on the open she went Q. And when specifically I do not recall where it was. her, away it from purse, you took given purse by But I was Officer you? didn’t shortly my Williams arrival [sic] there. No, A. sir. minute;

Q. up. Wait a let me back Did Q. right. All Did Officer Williamson me that when she went you just you any tell hand identification? something and extract open purse Yes, A. he did. it, from purse away took the you out of Q. already Was the re- identification her? when he purse moved from handed Yes, A. sir. you? it to Q. prosecutor’s ques- to the response Yes, A. sir. tions, you I think testified that —we Q. you present Were when Officer Wil- . .. strike that. identification from got liamson your have a Have-you you copy —do got wherever it was that he it? report you? with there, got A. When I it was his hand. No, sir, I A. don’t. got I where he it do not know from. Q. Okay. putting Do recall you Q. when purse open Was the or closed referring I’m to— your report —and you got there? it, see see a you copy would like to A. It was closed. it? Q. gave you What do when he you did A. Yes. purse? ex-

A. He handed me the it; he had come plained to me how Q. Would second to the you read [the anyone I asked him if had looked Court, please, sir. paragraph] last to the “No.” At and he stated time, unzipped I opened it. this, A. Strick- doing As she Officer Q. got copy your report Have you land arrived on the scene and assisted you, available to sir? He removed the subject. me with the now, no. Right A. taking I was purse from her as wallet identification from her. Officer R.T. at 167-68. open ... continued to Strickland no fur- government’s attorney The asked it was found to contain a purse, and about the evidence Officer questions ther money. large sum pre- uncovered had Strickland I have no further Okay.

MR. FREY: suppression liminary investigation. questions. provid- without hearing was thus concluded any- assumption ing support makes for an 160. The record thus R.T. at thing more than a seizure was the sole clear that Officer Strickland trial itself did Testimony at the the contents of occurred. investigated who policeman Williamson otherwise. Officer suggest the arrest. Al- not at the time of purse the seizure action save testimony direct disclaimed again Officer though Strickland’s and redirect both on direct purse, confirmed that hearing suppression no more than examinations. Williamson had done Officer money DIRECT аmount of from the purse and began to break it into piles by different Williamson, Q. indi- you Officer have denomination. And piles these cated, think, I that this identification later counted. came from a you Did then seize Q. you Did make a count of all of purse person? from this currency found therein? A. I purse took the from her after she begun open purse and then sir, Yes, I A. did. closed up it. She then stood Q. Do know what you the total amount began turned her back to me and was? currency open the purse again. She was with- $5,700. right A. It was around I don’t drawing something from the remember the exact amount. point at that I took purse from her. Q. anyone you

REDIRECT Was there with at the you time that were inventorying the Q. Williamson, purse Officer that currency? you took from Burnette on A. Officer sitting Aleshire was at a date, what, if anything, you did do desk. with it at that time? To whom did you it,

give if to anyone? Q. What was he doing? A. her, When I took the purse from I going through A. He was the stack of handed it to Officer Strickland. twenty-dollar looking bills for specifi- Q. you. Thank I have nothing further. cally serial-numbered twenty-dollar bills. trial, R.R. at 316. At Officer merely

Strickland purse identified the Q. you Do know whether or not he described the searсh done at the station- any? found house: he did not further elaborate on his them, A. He yes, found some of sir. actions Thus, at the time of the arrest. Q. No questions. additional when asked whether he recognized an ex- R.T. at 325-27. just introduced, hibit that had been he re- interchanges These represent the sum to- plied: tal of record evidence what occurred A. Yes. That purse is the I was given purse when the immediately seized sub- custody Officer Williamson. sequent meager arrest. This Q. Is any way there that you recog- can parties’ record and the inability to under- nize ‍​‌‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​‌‌‌‌‌​‌​‌​​​‌​‌‌‌​​‌​​‌‌‍it as purse? the same stand the issue even when explicitly asked A. When I placed this in depart- to address it demonstrate the risks inherent mental property, put I it bag inside the deciding question sua sponte. my and stapled bag I shut. also sta- view, the record in its state simply pled onto it property tag support majority’s does not treatment made out in my handwriting. admissibility the issue of the of the evi- R.T. at 319. His other relevant testi- dence of the contents of Lynette’s mony revealed the following: discovered the search at the police Q. Strickland, Officer you did later that station. day take the you had seized police department? Yes, A. sir.

Q. you Did anything time do

with it?

A. After we had been there for a short

period time, large I removed a

Case Details

Case Name: United States v. Lynette Burnette, United States of America v. Theresa Burnette, United States of America v. Michael Curtis Burnette

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 10, 1983

Citation: 698 F.2d 1038

Docket Number: 81-1153 to 81-1155

Court Abbreviation: 9th Cir.