Appeal from the United States District Court for the Eastern District of Wisconsin. No. 86 CR 71--Thomas J. Curran, Judge.
Harlington Wood, Jr. and Kenneth F. Ripple, Circuit Judges, and Thomas E. Fairchild, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Appellant Karlin was convicted of one count of engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1) and one count of possessing a firearm while a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1) (repealed 1986).*fn1 Karlin appeals from the judgment of conviction and sentence and raises numerous challenges, all of which we reject.
Karlin was indicted June 3, 1986 on one count of being engaged in the business of dealing in firearms without a license and six counts of being a felon and knowingly possessing a firearm in or affecting commerce, with each of the latter six counts alleging possession of a separate firearm. The activities alleged in Count 1 occurred between November 8, 1984 and November 11, 1985. The first count stemmed from Karlin's activities with Donald Chaon, a gun collector. The next five counts, of which he was acquitted, charged Karlin with possessing firearms he sold to Chaon. The seventh count charged Karlin with possessing a firearm on December 19, 1985. This weapon was found under the driver's seat of Karlin's vehicle immediately following his arrest on suspicion of burglary.
The evidence showed that Karlin sold about fifteen firearms to Chaon. Chaon paid cash or traded other items, such as collectible coins, for the firearms. During this time period Karlin attempted to sell other firearms to Chaon, who declined purchase for various reasons, including high price. Chaon collected various items and considered Karlin his "picker"--a person who scouts for collectible items and sells them to a collector. Chaon in turn occasionally sold or traded firearms to other collectors. The guns were all manufactured outside the state of Wisconsin, and were sold by Karlin in Wisconsin.
In December, 1985, a West Bend police officer received reports of a burglary suspect being chased by citizens. The officer arrived at a parking lot and found two citizens standing over Karlin, who was lying face down on the ground with his foot inside the open driver's door of a van. The citizens indicated that Karlin was the man they had chased and that one of them had removed him from the car. The officer arrested Karlin, handcuffed him, removed indentification, brought him to his feet, patted him down, and placed him in the rear of the squad car. The officer then searched the van and found a .38 caliber revolver inside a stocking cap under the driver's seat. The gun formed the basis for Count 7, of which Karlin was convicted.*fn2
I. SEIZURE OF THE COUNT 7 WEAPON
Karlin argues that the weapon found in the vehicle should have been suppressed because the search the produced it violated the Fourth Amendment. He contends that the search was not incident to arrest, as found by the district court.
In Chimel v. California, 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969), the Supreme Court held that when a lawful arrest is made, the police may, as an incident to arrest and without a warrant, search the person of the arrestee and any area into which he might reach in order to grab a weapon or evidentiary items. The Court found invalid a search of the arrestee's entire house. 395 U.S. at 763, 768.
In New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), the Court considered the application of Chimel doctrine to a search of the passenger compartment of an automobile after arrest of an occupant. The Court of Appeals of New York had held that when the search was made there was no longer any danger that the arrestee or a confederate might gain access to the article seized. The Supreme Court reversed, and upheld the search.
The Court noted the difficulty experienced by courts in deciding the proper scope of a search of an automobile incident to a lawful custodial arrest of its occupants. The Court also remarked upon the desirability of a rule under which police could in most instances reach a correct determination beforehand, and the undersirability of litigation in every case over the existence of supporting reasons. The Court held
that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile . . . [and] may also examine the contents of any containers found within the passenger compartment. . . .
453 U.S. at 460 (footnotes omitted). Karlin argues, relying on Chimel, that by the time the search occurred, the driver's seat was no longer an area into which he could have reached. He was in a squad car, an undisclosed distance from the van, and handcuffed.
Karlin seeks to distinguish Belton on the ground that the arrestees in that case appear to have been made less secure than he, and were somewhat closer to their car. If those differences in degree are to control, the Court's preference for a straightforward rule for guidance of police officers and avoidance of hindsight determinations in litigation would be frustrated. It seems quite likely that, in instances where occupants of a car are ...