United States v. Danny Lee Fultz
622 F.2d 204
6th Cir.
1980
Check Treatment

*1 served-. We think this con- having process action to short-circuit affirmative

stitutes The district court process.

the issuance saving statute correct

inapplicable. af- district court is America, STATES

UNITED

Plaintiff-Appellee, FULTZ, Defendant-Appellant.

Danny Lee 79-5360.

No. Appeals, Court of States

United Circuit.

Sixth April 1980.

Argued 5,May 1980.

Decided Blackburn, Barrett, Lenahan,

GaryW. Nashville, Tenn., Ray, for de- & Kniffen fendant-appellant. Cary, Atty., H. U. Robert E. S.

John Knoxville, Tenn., Simpson, plaintiff-ap- pellee. LIVELY, MERRITT and KEN-

Before NEDY, Judges.

205 agree We PER CURIAM. thus with the district the probable court that officers had appeals Defendant from conviction (The the vehicles. to search defendant was of possession shotgun a sawed-off for frisked.) searched We also not 5861(d) of 26 U.S.C. violation and 5871. §§ the circumstances the search that only issues before The the court arise from lawfully a conducted without war could the district court’s denial of a motion to judicial The nearest rant. officer from the shotgun as and to evidence warrant a could be whom obtained lived return defendant’s truck from which the 13 approximately miles from the scene of weapon was seized. About five search. the officers The officers who searched the truck of If one scene. had been dispatched at the had no the defendant warrant. They had warrant, it would a have get been reasona been called the scene of a disturbance in remaining the officers to seize and ble County, Claiborne Tennessee between rural truck of the defendant and hold the other midnight 1:00 guard a. m. A security until the vehicles warrant was obtained. where a plant going at a strike was on Supreme Court has held The that when that reported being fired to- probable there is of a cause for search vehi plant ward the from an area where five or there no cle difference constitutional vehicles were six some distance seizing between purposes ve When plant. the officers from from the and, on hicle until warrant is obtained department scene, arrived at sheriff’s hand, carrying other out an immediate plant told he had seen without a course warrant. “Either coming area, flashes muzzle “right is reasonable under Amend the Fourth Though in the middle strikers.” 42, ment.” Chambers Maroney, 399 U.S. at guard stated hearing, cross-exami- 1975, 1981, 90 S.Ct. 26 L.Ed.2d 419 nation, that at least one of the weapons (1970). carbine,” like a “sounded he reiterated his previous testimony that he argument At oral counsel for the “I knew flashes” defendant stated that the deputy who con that end.” from the search was also involved ducted finan arrived in the area company which cially in se which the said come, the shots had plant. struck curity guards He em the officers were one of group phasized acting was in his congregated there that there had been no capacity and that the official de The gunfire. officers searched all the vehi- truck was a private not fendant’s search, Early cles the area. a Nevertheless, urged he this court to infer was carbine rifle found bus under a school differently acted parked with the strikers’ cars and trucks. he would than have in the absence of case The defendant argues if there plant struck and to connection hold search, was cause to begin a “general he conducted search” that been stopped should have when the carbine The district unreasonable. court was heard was found since no other which related the tie between shown, As identified. we have the witness deputy and plant. struck the shooting told the officers “they” probable cause was to conduct a search and firing been shots and that he had seen court district found no unreasonable several muzzle flashes. It was reasonable of the search. This extension determina for the officers to continue not was erroneous. tion weapons after the other carbine was found. no find merit We remaining con- Discovery gave additional appellant. tentions reason to seek other since offi- then had reason to cers the district is af- court earlier disclaimer was false.

MERRITT, like carbine. dissenting. sounded Judge, you owned your- And an M-l carbine government concedes that the Here County, Tennes- sheriff Claiborne self? question the search in see, sir, Yes, I have. company trying pay of in the car- At that moment *3 We should therefore scruti- strike. break be the fire? responsible would bine carefully any more than usual nize Yes. A. warrantless, nighttime search strik- you what effects told Mr. Jesse depu- by Q. Is personal ers’ information com- by Ramsey ty upon Mr. [the officers]? security guard man was on pany —a carbine, but I said sounded like a A. private security deputy’s loan not have sure. may been one. I wasn’t service. reading of the me My record convinces company by 15-16)

that the (App. only that the fired sever- strikers had found the carbine Once volleys rifle. There is no al bus, he had no reason to search more than strikers fired and their further. automobiles strikers weapon. The for the security guard one to was no testified as company follows: The subsequent else. search was anything Now, you Q. while sitting your in general exploratory This simply truck, did pickup you observe the strik- exploratory kind of general same is there, or where the cars were ers which led down in this area? Fourth Amendment. adoption Yes, sir. I A. could see And like them. soldiers in at least had Boston British said, they I fire- warrant, or a “writ of assistance.” general crackers. defendant, According to the sitting in my As I was truck I heard a justify exploratory to nothing real couple exactly loud-—it didn’t company’s pocket. money in except like firecrackers. I sound turned to look, I seen muzzle flashes. violence deplore I Although the resort Q. Where the muzzle flashes com- disputes, our replete history labor from? ing in which in civil engage citizens instances Right out of of where middle dis- in labor resistance disobedience were. they when think that the authorities putes you say “they,” the strikers? by legal system bought has been off The court: you What do mean parties adversaries. Here all their flashes?” deputy to company was paying fire that comes out end of A. The breaking guard service and assist furnish you when shoot it. gun may It strike. have led the strikers local depend could not

believe during the protect 10-11) enforcement law (App. may have them to influenced strike. you formed a Q. Have conclusion violence. mind, Both sides based upon your knowledge resort your situation, type weapon as to what In such we wrong. should you discharge? apply it was neutral and law in a careful really objective way. hadn’t Since I can find no basis for given I much just I gun. continuing that. knew it was a search after the carbine was about found, would you I Haven’t testified before that was a carbine? question.