1 18 U.S.C. § 2119.

2 18 U.S.C. § 1951(a).

3 18 U.S.C. § 924(c)(1).

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-11053

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DENNIS WAYNE HOPE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

December 10, 1996

Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Dennis Wayne Hope appeals his convictions for carjacking, 1 robbery, 2 using

a firearm during the commission of a crime of violence, 3 and illegally possessing4 18 U.S.C. §§ 922(g)(1) and 924(e)(1).

2

a firearm. 4 At trial he admitted to all charges except the two firearm counts but he

app eals all counts, contending that he did not have a fair trial because he was

shackled in the presence of the jury and because the prosecution made improper

statements in the presence of the jury. In addition, the firearm counts were

challenged for being based on evidence which should have been suppressed as the

product of an illegal inventory search. Concluding that Hope was not denied a fair

trial we affirm his convictions on the six counts which he admitted. Concluding

that the court erred in admitting evidence obtained in an illeg al inventory search

of Hope’s vehicle, we reverse the convictions on the two firearm counts.

Background

On November 26, 1994 Hope escaped from Texas state prison where he was

serving an 80-year sentence for aggravated robbery. Several days later he stole a

car at knife point from 83-year-old Elvin Mitchell. In the process, Hope severely

cut Mitchell by yanking the knife away when, in his fright, Mitchell grabbed the

blade. After dropping Mitchell off bleeding on the side of the road, Hope set out

to rob the same stores he previously had been convicted of robbing.

Between December 1, 1994 and January 16, 1995 Hope robbed four

Albertson’s grocery stores in the Dal las area. He admits to the robberies and3

admits to using a gun in the commission of one. During the course of his crime

spree he set up camp in Memphis, Tennessee at a boarding house owned by James

Money. On February 2, 1995 Texas Department of Criminal Justice officers, FBI

agents, and Memphis police officers arrested Hope at the Denim and Diamonds

Nightclub in Memphis. While conducting an inventory search of a Jaguar driven

by Hope to the nightclub, Memphis po lice officers found a loaded 9 millimeter

Taurus handgun and a police scanner.

The following day, two officers of the Texas Department of Criminal Justice

determined where Hope had been staying and proceeded to Money’s boarding

house. Three Memphis police officers also arrived to assist with the investigation.

While the officers were there, Hope telephoned Money from prison and told him

not to allow the police to search his room or his Honda CRX that was parked on the

front lawn. Money, however, consented to a search of Hope’s room and requested

that the police tow the car off his property. The police made a warrantless search

of the room and found a loaded .45 caliber handgun and $14,000. The Memphis

police officers inventoried and impound ed the Honda, discovering partially full

boxes of 9 millimeter and .25 caliber ammunition, a BB gun with the barrel bored

out, and other miscellaneous items. They turned over this evidence to the Texas

officers.5 United States v. Andrews

, 22 F.3d 1328 (5th Cir.), cert

. denied

, 115 S.Ct. 346 (1994).

6 United States v. Ponce , 8 F.3d 989 (5th Cir. 1993).

7 South Dakota v. Opperman , 428 U.S. 364 (1976).

4 At the pretrial suppression hearing the district court excluded the evidence

found in Hope’s room but denied the motion to suppress the objects found in the

Honda. During the course of the trial, the government introduced into evidence the

contents of the Honda. Hope’s counsel did not object to the introduction of the .25

caliber ammunition and stated “no objection” when the other items were offered.

Hope timely appealed.

Analysis

1. Wrongfully seized evidence

We first address Hope’s contention that the district court erred in failing to

suppress the items obtained in the search of the Honda. Hope claims that the car

was impounded illegally and inventoried in violation of the fourth amendment. We

review the district court’s fact finding for cle ar error and its conclusion as to the

reasonableness of the search de novo

, 5 reviewing the evidence at both the

suppression hearing and trial in the light most favorable to the prevailing party. 6

The police may impound vehicles for public safety and community

caretaking. 7 Because Hope would be returned to serve his 80-year sentence in8 See United States v. Gravitt

, 484 F.2d 375 (5th Cir. 1973) (explaining that the

expectation that owners of the car would be in custody made i t reasonable to seize and

conduct inventory search of car), cert

. denied , 414 U.S. 1135 (1974); U nited States v.

Kelehar

, 470 F.2d 176 (5th Cir. 1972) (holding that police could impound arrestee’s car

located in restaurant parking lot with the consent of manager).

9 Opperman ; United States v. Privett

, 68 F.3d 101 ( 5th Cir. 1995), c ert

. denied

, 116

S.Ct. 1862 (1996).

5 Texas state prison, the police acted properly in complying with Money’s request

to remove the car from his property. Hope had no right to leave his car on Money’s

property indefinitely while he served his prison sentence. 8

An inventory search is reasonable and, thus, not violative of the fourth

amendment if it is conducted pursuant to standardized regulations and procedures

that are consistent with (i) protecting the property of the vehicle’s owner,

(ii) protecting the police against claims or disputes over lost or stolen property, and

(iii) protecting the police from danger. 9 At the pretrial suppression hearing the

district court ruled that the inventory search of the Honda was valid because the

only evidence before the court was the testimony of an officer that he believed an

invento ry search was performed. We cannot accept the district court’s finding

because, as a matter of law, the officer’s testimony was insufficient to prove that

the police had in fact followed standard procedures or guidelines in conducting the

inventory search of the Honda. We have held that a police officer’s unrebutted10 United States v. Bullock

, 71 F.3d 171 (5th Cir. 1995), cert

. denied , 116 S.Ct. 1365

(1996).

6 testimony that he followed standard procedures was sufficient to validate an

inventory search. 10 But even that minimal threshold was not met in the case at bar

where we find no testimony that referred to Memphis police department guidelines,

or that they were followed, but only the statement by the officer that, “I believe the

Memphis police did inventory the vehicle.”

The record is devoid of any evidence that standard in ventory procedures were

in place and were, in fact, followed by the Memphis police when they searched the

Honda. The searching officer turned over the evidence found to the Texas officers

and did not bag and t ag same as the search procedures prescribed. It is beyond

serious debate that the prosecution bears the bur den of establishing that any

evidence submitted, which resulted from an inventory search, was the result of a

search conducted in accordance with known, established police procedures. That

did not occur herein and the evidence found in the search of the Honda should not

have been admitted in evidence.

The government maintains that Hope’s attorney waived the right to o bject

to the evidence by stating “no objection” when the items were offered at trial. We

have held, however, that where there has been a pretrial motion to suppress, the11 United States v. Cruz

, 581 F.2d 535, 542 (5th Cir. 1978), overruled on other grounds

by United States v. Causey , 834 F.2d 1179 (5th Cir. 1987).

12 Compare United States v. Mireles

, 570 F.2d 1287 (5th Cir. 1978) (holding that where

court had not yet ruled on motion to suppress and defendant’s counsel stated “no objection”

to previously objected-to evidence, defendant was deemed to have abandoned the motion to

suppress).

13 United States v. Gadison , 8 F.3d 186 (5th Cir. 1993).

7 “failure to reiterate the objection [does] not waive it.” 11 Nor may the mere stating

“no objection” be taken as an affirmative waiver absent convincing indication that

counsel was doing more than just recognizing that t he district court had already

ruled on the issue in limine

. 12

Finally, the government contends that the illegal search was harmless error.

A conviction will be reversed only if the tainted evidence substantially affected the

verdict. 13 As to the first firearm count, the government asserts that the exclusion

of the .25 caliber ammunition would have had no substantial impact on the verdict.

We are not persuaded. The only physical evidence linking Hope to the use of a

small caliber, semiautomatic handgun, was the seized ammunition.

Nor can we say that the use of the BB gun seized from the Honda, which

factored heavily into impeaching Hope, was not significant evidence in the case as

presented. We cannot conclude that the use of that illegally seized evidence was

merely harmless error.14 Unite d States v. Weeks , 919 F.2d 248 (5th Cir. 1990), c ert

. denied

, 499 U.S. 954

(1991).

15 Holbrook v. Flynn , 475 U.S. 560 (1986).

16 Wilkerson v. Whitley , 16 F.3d 64 (5th Cir.), rehearing en banc on other grounds , 28

F.3d 498 (5th Cir. 1994), cert

. denied , 115 S.Ct. 740 (1995).

17 United States v. Theriault

, 531 F.2d 281 (5th Cir.), cert

. denied

, 429 U.S. 898 (1976).

8 2. Shackling

Hope maintains that the district court deprived him of a fair trial by shackling

him thr o ughout the trial. We review a district court’s decision to shackle a

defendant for abuse of discretion. 14

The Supreme Court has labeled shackling an inherently prejudicial practice

that should be allowed only if it is justified by an essential state interest. 15 We have

elaborated on the essential interests that justify shackling a defendant:

While a criminal defendant is entitled to the physical indicia of

innocence, a court is justified in ordering him handcuffed and sh ackled

during trial where there is a danger of escape or injury to the jury,

counsel, or other trial participants. 16

We have also held that the district court is required to state reasons on the record,

outside the presence of the jury, why it has chosen to shackle a defendant. 17

In the instant case, defense counsel objected to the shackling of Hope at the

beginning of the trial. The objection was overruled. The district court assigned no

reasons. This failure to assign reasons was error, but under the specific facts of this9

case we need not remand for the assignment of those reasons. They are readily

apparent to us from the record. Hope not only had been sentenced previously for

aggravated robbery, but he was an escapee from prison, thus posing both the threat

of injury to individuals in the courtroom and the threat of escape. We perceive no

reversible error in the trial court’s decision to shackle Hope.

3. Statements by the prosecutor

Hope challenges certain questions asked and statements made by the

prosecutor, claiming that they were improper. Our review of the record, in light of

the contention made in the brief, discloses no merit in this assignment of error.

The convictions and sentences on all counts, other than Counts Three and

Six, are AFFIRMED; the convictions on Count s Three and Six are REVERSED

and the sentences thereon are VACATED.