Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30983

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DONALD BATTISTE

Defendant-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:07-CR-416-1

Before WIENER, GARZA, and ELROD, Circuit Judges.

PER CURIAM:*

The original opinion in this matter was issued by the panel on August 13,

2009. A petition for rehearing is currently pending before this panel. The

petition for panel rehearing is granted in part. Accordingly, we WITHDRAW our

previous opinion and replace it with the following opinion.

Donald Battiste (“Battiste”), a former police officer of the New Orleans

Police Department, challenges his conviction under 18 U.S.C. § 242. Battiste

pled guilty to two counts: (1) unreasonable seizure of property resulting in bodily

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2009

Charles R. Fulbruge III

Clerk
No. 08-30983

2

injury; and (2) use of excessive force during arrest, resulting in bodily injury.

For the following reasons, we affirm the conviction and sentence.

I

The convictions at issue arose from an investigation of Battiste conducted

by the Public Integrity Bureau (“PIB”) of the New Orleans Police Department

(“NOPD”). The NOPD was contacted by a source who informed them that

Battiste was stealing money from arrestees. Investigators from PIB conducted

an “integrity check” of Battiste, employing a decoy and a covert vehicle. The

decoy sat in the front passenger seat of the vehicle in an open-air public parking

lot in Battiste’s assigned district, with a surveillance van parked inside the lot

approximately 50 feet away from the decoy.

The decoy was given $510 in cash by the NOPD. The money was divided

into three packets: one was placed in the decoy’s left front shirt pocket, one in

the right front pants pocket, and the other in the left rear pants pocket. The

decoy was told to act drunk. He was also instructed to, when confronted by the

police, put his hands in the air, not make any sudden moves, not to argue, and

not to do anything combative or aggressive. The investigators set up a

surveillance camera to capture the encounter. Battiste and his partner were

dispatched to the surveilled location in order to respond to a drunk male

harassing women in the area. 

The facts of the interaction between Battiste and the decoy appear in the

videotape and were sworn to by Battiste in his guilty plea. Battiste and his

partner arrived at the scene. Battiste exited his vehicle and walked to the

driver’s side of the covert vehicle, which was empty, while his partner walked to

the passenger side where the decoy was seated. Battiste then walked around to

the passenger side and interposed himself in front of his partner. After the

decoy was ordered out of the vehicle, Battiste turned him around (so that his

back was to Battiste), and struck the decoy in the back with his elbow. The
No. 08-30983

3

decoy cried out and dropped to his knees. Battiste then handcuffed him and

walked him to the police vehicle, telling his partner to search the covert vehicle.

Before placing the decoy in the police car, Battiste searched him and extracted

the money that was in the decoy’s pants pockets, placing all of it in his own

pocket. He then put the decoy in the back seat of the police car. After a short

conversation with a supervisor who appeared on the scene and then departed,

Battiste walked out of view of the surveillance camera. A PIB investigator on

the scene, who was able to observe Battiste’s actions, saw Battiste take the

money from his pocket and divide it into two packets, placing one in his front

pants pocket and the other in his rear pants pocket. He then returned to the

police vehicle, and he and his partner drove the decoy to the police station. At

the station, Battiste’s partner took the decoy inside for booking while Battiste

remained in the police car.

PIB investigators later discovered the decoy to be missing 251 dollars of

the 510 dollars that had been planted. The decoy also reported that he had hurt

his knee when he was knocked to the ground by Battiste and that it was painful

for him to walk.

Battiste was arrested after completing his shift. He waived his Miranda

rights and confessed to taking the money. After he pled guilty to both counts of

the indictment, the district judge sentenced him to 57 months in prison. This

appeal followed.

II

Battiste argues that there is not a sufficient factual basis to support his

guilty plea. Because this argument is raised for the first time on appeal, both

parties agree that this court reviews for plain error. See United States v.

London, 568 F.3d 553, 558 (5th Cir. 2009). Under plain error review, Battiste

must show error that is clear or obvious and that affects his substantial rights.

United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). To show that the error
No. 08-30983

 The statute states: 1

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully

subjects any person in any State, Territory, Commonwealth, Possession, or District to

the deprivation of any rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States, or to different punishments, pains, or

penalties, on account of such person being an alien, or by reason of his color, or race,

than are prescribed for the punishment of citizens, shall be fined under this title or

imprisoned not more than one year, or both; and if bodily injury results from the acts

committed in violation of this section or if such acts include the use, attempted use, or

threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title

or imprisoned not more than ten years, or both; and if death results from the acts

committed in violation of this section or if such acts include kidnapping or an attempt

to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse,

or an attempt to kill, shall be fined under this title, or imprisoned for any term of years

or for life, or both, or may be sentenced to death.

18 U.S.C. §242.

4

affected London's substantial rights, he “must show a reasonable probability

that, but for the error, he would not have entered the plea.” London, 568 F.3d

at 558. If such an error is shown, this court has discretion to correct it, but only

if the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. at 559.

Count 1 of Battiste’s indictment alleges that Battiste:

while acting under color of law as a commissioned officer of the New

Orleans Police Department during an investigative stop, stole United

States currency from a person known to the Grand Jury, thereby willfully

depriving that person of the right. . . not to be subjected to unreasonable

seizure of property, with the offense resulting in bodily injury; all in

violation of Title 18, United States Code, Section 242.

Under 18 U.S.C. § 242, the government must prove that the defendant

acted willfully and under color of law to deprive a person of a federally protected

right. United States v. Lanier, 520 U.S. 259, 264 (1997). Thus, Battiste was 1

convicted under § 242 of an unlawful seizure under the Fourth Amendment,

committed under color of law. Battiste argues that the seizure of the decoy’s

money did not violate the Fourth Amendment for two reasons: the seizure of the

decoy’s money was reasonable as part of the lawful arrest; and the decoy did not
No. 08-30983

5

have a cognizable possessory interest in the money that was seized. 

The touchstone of the Fourth Amendment is, as always, reasonableness.

Reasonableness is an objective standard, and must be assessed from the

perspective of a reasonable officer on the scene. See Graham v. Connor, 490 U.S.

386, 396-97 (1989). To determine the reasonableness of a seizure under the

Fourth Amendment, we examine the “totality of the circumstances,” Ohio v.

Robinette, 519 U.S. 33, 39 (1996), and balance “the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the intrusion. ” Gates

v. Texas Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 427 (5th Cir.

2008) (internal quotations omitted). 

Battiste first argues that his seizure of the money from the decoy at the

time of the arrest was reasonable under Fourth Amendment law that permits

the arresting officer to take possession of “articles of value, found upon the

prisoner, by means of which, if left in his possession, he might procure his

escape, or obtain tools, or implements, or weapons with which to effect his

escape.” United States v. Robinson, 414 U.S. 218, 231-32 (1973)(quoting Closson

v. Morrison, 47 N.H. 482, 484-85 (1867)), Battiste contends that because money

may assist escape, a person has no right to maintain possession of money when

he is arrested, and thus seizure of the money in this case was lawful as incident

to the arrest.

Undoubtedly, there is a strong governmental interest in preventing the

potential escape of an arrestee. However, under these facts, it is unclear how

Battiste’s seizure and subsequent appropriation of the money aided that goal.

Even a seizure that is “lawful at its inception” may ripen into a Fourth

Amendment violation where the “manner of execution unreasonably infringes

possessory interests by, for example, converting a temporary deprivation of

possessory interests into a permanent one.” Freeman v. City of Dallas, 186 F.3d
No. 08-30983

The Government argues that the seizure was per se unreasonable due to Battiste’s use 2

of force. We need not address this argument because we find that the seizure alone, isolated

from the use of force, contravenes the Fourth Amendment.

6

601, 605 (5th Cir. 1999) (interpreting United States v. Jacobsen, 466 U.S. 109

(1984) and United States v. Place, 462 U.S. 696 (1983)). Battiste effected a

permanent and illegal deprivation of the money by taking the money from the

decoy at the scene, putting it into his own pockets, and subsequently failing to

turn it over at the police station. These actions were objectively unreasonable.

Battiste’s argument that the decoy did not have a possessory interest in

the money because it belonged to the NOPD is unavailing. A Fourth

Amendment possessory interest is not limited to formal legal title; “a property

interest in the item searched is only one factor in the analysis, and lack thereof

is not dispositive.” U.S. v. Finley, 477 F.3d 250, 259 (5th Cir. 2007)(finding that

defendant had a possessory interest in a seized cell phone owned by his

employer). In this case, the decoy had clear possession of, and thus a possessory

interest in, the money in his pockets, notwithstanding the fact that it formally

belonged to the NOPD. We agree with the Government that the decoy’s

possessory interest in the money in connection with the seizure is sufficient to

give rise to a Fourth Amendment violation.2

We thus find that Battiste’s seizure was unreasonable under the Fourth

Amendment and sufficient for the purposes of his conviction under 18 U.S.C. §

242.

III

As to sentencing, Battiste contends that the district court erred in

sentencing him pursuant to the Guideline applicable to robbery, USSG § 2B3.1.

The district judge’s application of the Guidelines is reviewed de novo; because

Battiste objected below, factual findings are reviewed for clear error, rather than

under the more stringent plain error standard. See United States v. Garcia, 567
No. 08-30983

 Battiste also contends that calculating his sentence under the base offense level for 3

robbery raises a problem under double jeopardy. However, because he raises this argument

for the first time in his reply brief, we decline to address it. See United States v. Jackson, 426

F.3d 301, 304 n. 2 (5th Cir. 2005) (“Arguments raised for the first time in a reply brief. . . are

waived.”).

7

F.3d 721, 735 (5th Cir. 2009).

The record demonstrates that Battiste struck the decoy violently and

without provocation; slightly more than a minute later after the decoy was

secured in the police car, Battiste went through the decoy’s pockets and removed

the money. In sentencing Battiste pursuant to the Sentencing Guideline for

robbery, the district judge stated that in his view, the interaction between

Battiste and the decoy constituted robbery, which occurs when a person “by force

and violence, or by intimidation, takes or attempts to take from the person or

presence of another anything of value.” 18 U.S.C. § 2111. The district court

distinguished Battiste’s actions from theft, which does not involve any degree of

force, violence, or intimidation. The facts are undisputed, and thus the district

court did not clearly err.3

For the foregoing reasons, we AFFIRM the conviction and sentence.