UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 93-7061

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STANLEY MARSHAN LANG,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Mississippi

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(November 22, 1993)

Before POLITZ, Chief Judge, REAVLEY, and EMILIO M. GARZA, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

Stanley Marshan Lang was convicted of possession of five grams

of crack cocaine with intent to distribute, in violation of 21

U.S.C. § 841(b)(1)(B) (1988). Lang contends on appeal that the

district court erred in submitting the question of the cocaine's

admissibility to the jury. Concluding that the district court, and

not the jury, should have decided whether the cocaine was

admissible under the plain view excepti on to the warrant

requirement, we vacate Lang's conviction and remand for a new

trial.1 See Terry v. State of Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85,

20 L. Ed. 2d 889 (1968) (holding that "where a police officer observes unusual

conduct which leads him reasonably to conclude in light of his experience that

criminal activity may be afoot and that the persons with whom he is dealing may

be armed and present ly dangerous, . . . he is entitled for the protection of

himself and others in the area to conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons which might be used

to assault him."). We do not address the validity of the Terry search.

-2- I

On July 23, 1991, Ernest Blackley of the Greenville Police

Department received an anonymous tip that drugs were hidden within

a trash container inside the Mad Russian, a Greenville night club.

Without securing a warrant, Blackley went to the night club

accompanied by fellow officers Melton Young, Kenny Trader, Dondi

Gibbs, and Joe Hart. Blackley, the first of the officers to

arrive, proceeded to the rear of the building where he searched the

trash containers with the permission of the owner. No contraband

was found. Officer Trader, who was following closely behind

Blackley, observed Lang walking "at a very fast pace" toward the

front door. According to Trader, Lang "appeared to be very

nervous" and was acting "real suspicious like." Based on these

observations, Trader stopped Lang and asked him to place his hands

on his head so that Trader could perform a pat down for weapons. 1

Lang refused to stand still. Officer Young, realizing that Trader

was having difficulty with La ng, offered his assistance in

performing a pat down. While Lang was bending and twisting,

officer Young allegedly saw within Lang's shirt pocket an open

Bayer aspirin box containing white tissue, plastic bags, and within

one of those plastic bags "a couple of rocks of cocaine." Officer

Young immediately seized the aspirin box.2 See, e.g., Terry, 392 U.S. at 20, 88 S. Ct. at 1879 (repeating the

well-established rule that "the police must, whenever practicable, obtain advance

judicial approval of searches and seizures through the warrant procedure, [and]

that in most instances failure to comply with the warrant requirement can only

be excused by exigent circumstances" (citations omitted)); U nited States v.

Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 95, 96 L. Ed. 59 (1951) ("Over and again

this Court has emphasized th at the mandate of the [Fourth] Amendment requires

adherence to judicial processes. Only where incident to a valid arrest, or in

"exceptional circumstances," may an exemption lie, and then the burden is on

those seeking the exemption to show the need for it." (citations omitted)).

3 See Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993,

19 L. Ed. 2d 1067 (1968) ("It has long been settled that objects falling in the

plain view of an officer who has a right to be in the position to have that view

are subject to seizure and may be introduced in evidence."); see also Texas v.

Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).

-3- Lang was subsequently charged with possessing with intent to

distribute five grams or more of crack cocaine, in violation of

21 U.S.C. § 841(a)(1)(B). At trial, Lang moved to exclude the

cocaine seized without a warrant from his pocket. 2 The district

court carried Lang's obje ction forward with the trial. Officer

Young proceeded to testify that while Lang was twisting and

turning, he w as able to see a couple of rocks of cocaine in a

plastic bag located inside the aspirin box. After the government

finished presenting its evidence, Lang renewed his mo tion to

exclude the cocaine and also moved for a judgment of acquittal.

The government argued that Young did not require a warrant to seize

the aspirin box containing the cocaine because Young was able to

see the cocaine in plain view during his pat down of Lang. 3

Although finding it unlikely that a person would carry cocaine

within plain view in his shirt pocket and that officer Young could

see the cocaine within plain view, the court was unwilling to state

at that time that officer Young was committing perjury. The

district court therefore stated "that it was going to accept-4-

[officer Young's] testimony for what it is in the record at this

time." The court also denied Lang's motion for judgment of

acquittal. During the jury instruction conference the district

court informed the parties that it was submitting to the jury the

question whether the cocaine was within plain view of off icer

Young. By rendering a guilty verdict, the jury implicitly answered

that question in favor of the government. The district court

entered judgment in accordance with the jury's verdict, from which

Lang filed a timely notice of appeal.

II

Lang contends that the district court erred in submitting to

the jury the question of whether the cocaine was admissible under

the plain view exception to the warrant requirement. Rule 104 of

the Federal Rules of Evidence governs preliminary questions of

admissibility. That rule provides:

(a) Questions of admissibility generally. Preliminary

questions concerning the qualification of a person to be

a witness, the existence of a privilege, or the

admissibility of evidence shall be de termined by the

court, subject to the provisions of subdivision (b). In

making its determination it is not bound by the rules of

evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of

evidence depends upon the fulfillment of a condition of

fact, the court shall admit it upon, or subject to, the

introduction of evidence sufficient to support a finding

of the fulfillment of the condition.

The cocaine's relevancy did not depend upon the fulfillment of a

condition of fact, as the cocaine would have been relevant to show

Lang's guilt of the charged offense notwithstanding whether officer4 See Terry, 392 U.S. at 12, 88 S. Ct. at 1875 (stating that the rule

excluding evidence seized in violation of the Fourth Amendment "is the only

effective deterrent to police misconduct in the criminal context, and that

without it the constitutional guarantee against unreasonable search es and

seizures would be a mere `form of words'" (citing Mapp v. Ohio, 367 U.S. 643,

655, 81 S. Ct. 1684, 1692, 6 L. Ed. 2d 1081 (1961))).

5 See United States v. James, 590 F.2d 575, 579 (5th Cir.) (stating

that under Fed. R. Evid. 104, "the judge alone decides preliminary questions

which relate to the competence of evidence, and the jury decides preliminary

questions as to the conditional relevancy of the evidence"), cert. denied, 442

U.S. 917, 99 S. Ct. 2836, 61 L. Ed. 2d 283 (1979).

6 See United States v. Noll, 600 F.2d 11 23, 1128 (5th Cir. 1979)

(holding that trial court did not commit reversible error when it submitted

admissibility of evidence question to jury because the trial court had

independently decided the question); see also United States v. Monaco, 702 F.2d

860, 878 (11th Cir. 1983) (holding that identical error did not prejudice

defendant because "by giving [the] instruction, the judge merely gave the jury

the opportunity to overturn his own ruling"); U nited States v. Nickerson, 606

F.2d 156, 158 (6th Cir.) (holding th at identical error did not prejudice

defendant because it merely gave the defendant "the benefit of the jury's

consideration of admissibility" or a "second bite at the apple" (attribution

omitted)), cert. denied, 444 U.S. 994, 100 S. Ct. 528, 62 L. Ed. 2d 424 (1979).

-5- Young saw the cocaine in plain view. Although relevant, the

cocaine would have been excluded for policy reasons underlying the

Fourth Amendment. 4 Consequently, the preliminary question of

whether officer Young saw the cocaine in plain view was within the

sole province of the district court. 5

The government does not dispute that the district court alone

should have decided the admissibility question. It argues, rather,

that because the district court itself ruled that the cocaine was

admissible, the submission of the admissibility question to the

jury did not prejudic e Lang. 6 We disagree. The record reveals

that rather than making its own conclusive finding that officer

Young saw the cocaine in plain view, the district court left that

requisite determination to the ju ry. The following relevant

portions of the record provide:7 See infra note 9.

-6-

THE COURT: Well, it's ) ) it's very unlikely in the Court's

opinion that a man who has crack cocaine in his shirt

pocket and is in a situation where four or five officers

come into a night club where he is and don't focus on him

at that time is going to keep the box in his pocket open

where tissue paper is sticking out and plastic bags [are]

sticking out and visible walking around in a night club

with police officers there when he has time to put it

back, stuff it down in his pockets. He would have to be

stupid to do that. I don't know what the defendant's IQ

is, I have never heard him say anything, and I don't know

anything about him, but I know if he did that, he is

stupid.

The box is very small )) I mean, it has a very small

opening on it. For those plastic bags and cocaine to be

sticking out, they would have to be sticking out the top

above his shirt pocket and at least visible through the

top of the shirt pocket from above the shirt pocket.

However, that is the sworn testimony of the officer, and

its very unusual for the Court, and I don't feel at this

time that I am going to or should say that he is

committing perjury and he is lying under oath in saying

he saw something that he did not see, so, therefore, I am going to accept his testimony for what it is in the

record at this time, and the motion for [judgment of

acquittal] at this time will be denied. I might submit

that to the jury to let the m pass on it also. At this

time, I am suppose[d] to take everything in the light

most fa vorable to the government at this stage of the

proceedings, 7 and that is wh at I am doing, according to

the law, but I might let the jury consider that question

also.

* * *

[THE COURT DURING THE JURY INSTRUCTION CONFERENCE:] Now,

I mentioned about the search question possibly presenting

that to the jury. I am not sure if that's procedurally

correct to do that. It puts in issue the credibility of

the police officer instead of me making a final

determination of that, lett ing the jury make a

determination of it, instructing them in order for the

search of the defendant to have been legal, something to

this effect, then the officer must have been able to see

what he believed to be r ock, rocks of crack cocaine

sticking out of his shirt out of the box, and if you

believe that that is the case, then the search was legal

and you may consider the evidence.8 That the dis trict court never made its own conclusive finding of

whether officer Young saw the cocaine in plain view is further evidenced by the

court's order denying Lang's post-verdict motion for judgment of acquittal, or

in the alternative, new trial. There, the court noted that "the question of

whether the contraband which was the subject of this case was legally seized from

the defendant was mixed question of law and fact and was presented to the jury

for a finding as to whether the contraband was in plain view. " Record Excerpts

tab 13 (emphasis added).

9 We further point out that it is unclear from the record whether the

district court relied upon an incorrect view of the law when making its initial

determination to admit the cocaine. Immediately after admitting the cocaine and

denying Lang's motion for judgment of acqui t tal, the court stated that it was "suppose[d] to take everything in the light most favorable to the government at

this stage of the proceedings." Although that standard may be the correct one

when deciding a motion for judgment of acquittal, see Fed. R. Crim. P. 29(a), it

is the incorrect one when deciding whether to admit evidence seized under an

exception to the warrant requirement. S ee United States v. Be rick, 710 F.2d

1035, 1037 (5th Cir. 1983) (stating that the government has the burden of

establishing exigent circumstances to excuse a warrantless search).

-7- * * *

[THE COURT CHARGING THE JURY:] In order for the search

of the defendant by the officers to have not violated the

Fourth Amendment of the United States Constitution

prohibiting unreasonable searches and seizures of a

person, the officers must have seen the alleged rocks of

crack cocaine in the defendant's shirt pocket before they

searched him, as claimed by the police officer. The

observation of the illegal cocaine would have given the

officers probable cause to believe that a crime was being

committed, and therefore, the legal authority to search

the defendant and charge him with the fruits of that

search here, the crack cocaine.

If, however, the officers could not and did not see the

alleged rocks of crack cocaine in the box which was in

the defendant 's pocket prior to the time they searched

the defen dant and removed the box from the defendant's

pocket,

. . . the fruits of that search are not to be

considered by you in arriving at y our verdict, and in

that case you should return a verdict of not guilty.

Record on Appeal vol. 2, at 145-46, 178-79, 210-11 (emphasis

added). Because the record indicates that the district court, at

most, made only an initial determination of whether officer Young

saw the cocaine in plain view and left the ultimate determination

of that question to the jury, 8 we reject the government's argument. 9-8- III

For the foregoing reasons, we VACATE Lang's conviction and

REMAND for a new trial.

REAVLEY, Circuit Judge, dissenting:

The district ju dge accepted the testimony of the arresting

officers and then gave the jury the opportunity to reject his

decision of admissibility. That was improper, but it certainly

caused no harm to defendant. The jury accepted the testimony too.

The majority does not answer the cases stated in its own footnote

six. I would affirm.