United States v. Ramon P. Tarazon

989 F.2d 1045 38 Fed. R. Evid. Serv. 1138 UNITED STATES of America, Plaintiff-Appellee, v. Ramon P. TARAZON, Defendant-Appellant. No. 92-10204. United States Court of Appeals, Ninth Circuit. Submitted Feb. 5, 1993. * Decided March 17, 1993. Sandra Lynn Slaton, Paradise Valley, AZ, for defendant-appellant. Vincent Q. Kirby, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: FARRIS, POOLE, and WIGGINS, Circuit Judges. POOLE, Circuit Judge: 1 Appellant Ramon P. Tarazon appeals his conviction following jury trial for possession of a narcotic substance with the intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(B)(ii). Tarazon argues that: (1) the district court erred in denying his motion to suppress, (2) the prosecutor made an improper reference to his not testifying at trial, and (3) the district court erred in admitting a pistol in evidence. We reject these arguments and affirm. I. 2 On August 28, 1991, officers of the Drug Enforcement Administration (DEA), working in conjunction with the Bureau of Alcohol, Tobacco and Firearms (ATF), obtained a federal search warrant for…

Appellant Ramon P. Tarazón appeals his conviction following jury trial for possession of a narcotic substance with the intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) and (b)(l)(B)(ii). Tarazón argues that: (1) the district court erred in denying his motion to suppress, (2) the prosecutor made an improper reference to his not testifying at trial, and (3) the district court erred in admitting a pistol in evidence. We reject these arguments and affirm.

I.

On August 28,1991, officers of the Drug Enforcement Administration (DEA), working in conjunction with the Bureau of Alcohol, Tobacco and Firearms (ATF), obtained a federal search warrant for a location in Phoenix, Arizona. During the execution of this warrant, the target of the search warrant agreed to cooperate with the law enforcement officials and provided them with the whereabouts of a second individual, later identified as Ken White, a cocaine dealer.

Based on the target’s information, the officials went to Hermosa Park in South Phoenix. At approximately 10:00 p.m., they encountered White. The officials detained White, searched the immediate area and located 10 one ounce packages of cocaine in a nearby trash…

concurring:

I write separately to express my disapproval of this court’s decision in United States v. Turner, 926 F.2d 883 (9th Cir.1991), which, to my mind, unnecessarily and illegitimately expanded the search incident to arrest exception to the Fourth Amendment’s warrant requirement.

The search incident to arrest exception to the warrant requirement was enunciated in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). In Chimel , the Supreme Court specifically stated:

Id. at 763 , 89 S.Ct. at 2040 . The Chimel exception primarily is justified by two concerns — officer safety and preservation of evidence.

Turner , however, expanded the search incident to arrest exception beyond the logical boundaries of the rationale of Chimel . Specifically, the Turner court upheld as a valid search incident to arrest the search of the defendant’s bedroom after the defendant had been arrested, handcuffed, and removed from the room.

Adopting a two pronged test first enunciated in United States v. Fleming, 677 F.2d *1054 602 (7th Cir.1982), 1 the Turner court first inquired into whether the searched area was within the arrestee’s immediate control when he was arrested.…