United States v. Jerry Lee Wilson
524 F.2d 595
8th Cir.
1975
Check Treatment

*1 America, STATES UNITED Appellee, WILSON, Appellant.

Jerry Lee

No. 75-1247. Appeals, Court of Eighth Circuit. Sept. 1975.

Submitted

Decided Oct. Rehearing En

Rehearing and Banc 13, 1975. Nov.

Denied 1, 1976. Denied March

Certiorari

Philip Moomaw, M. Asst. Federal Pub- lic Defender, Springfield, Mo., for appel- lant. Jones,

David H. Atty., Asst. U. S. Mo., City, appellee. Kansas VOGEL, Judge, Circuit Before Senior STEPHENSON, HEANEY and Circuit Judges.

STEPHENSON, Judge. Circuit The central appeal issue on this whether the district court1 erred overruling appellant’s motion to suppress the introduction into evidence at his trial which was al- legedly obtained as the result of an ille- gal search and seizure. We find that the search and seizure complained of in the instant case was not unreasonable. Ac- cordingly, we affirm.

On the evening August 1974 at appellant p. m. Jer- 11:00 ry Lee traffic Wilson was involved in Spring- accident at an intersection field, motorcycle which Missouri. The Wilson operating collided with automobile. Wilson was thrown from lay his vehicle where he onto street inju- physical unconscious with serious ries.

Shortly thereafter, Officer Dan Wilson Springfield Department Police ar- rived at the scene. Both to and after ambulance, the arrival of the Offi- cer administering participated Wilson request first At aid to ambulance driver officer took injured of the contents pants’ had to be cut pocket man’s away to application of allow for the splint. received Among the items cellophane- officer were two small Judge District Collinson, 1. The District Western Honorable William R. for the of Missouri. examining bag’s contents. At powdery wrapped packages of a white had Wilson not been judged to be time substance which the officer that he arrested. The officer testified a form of narcotic. he believed opened because subsequent In the investi- course of his shotgun and be- it contained a sawed-off accident, gation Wilson Officer possibil- cause he was concerned over *3 learned a reliable source2 that a from drugs were ity that additional located bag from the duffel had been removed therein. No search warrant was obtain- street where the collision had occurred ed because the officer felt that it was placed nearby parked and in a automo- unnecessary under the circumstances person bile. The officer the who located the ease. by bag had taken and was told him the appellant. bag belonged that the Act- police dis- Upon opening bag the the ing pursuant policy of to an established covered, among things, a sawed-off other Department Springfield the re- Police shotgun with a less than 18 inches barrel belong- property garding custody the revealed length. Subsequent checking in ing victims, re- the officer accident gun registered as re- the over to quested turned bag be that the quired by Appellant federal statute. receiving Upon him safekeeping. subsequently arrested and Wilson was immediately noticed bag3 the the officer charged violating 26 U.S.C. what inches of approximately six 5861(d). he Prior to his trial moved § pro- appeared shotgun to be a barrel shotgun the on suppression for the truding bag. from the There a re- theory the as that it was obtained sight The bar- on the end of the barrel. seizure. His illegal sult of an and appeared to have shiny rel end was and the district by motion was overruled assess- sawed off. No immediate and convic- jury court. After his tion, trial precise length ment the barrel Wilson the trial court committed length made. The of the duffel overall study pursuant for a to 18 U.S.C. bag three feet. At 4208(b), imposed final sentence to § police custody the time it was taken into study and with upon completion of that bag padlock. the As a was locked with the recommendation of the Director of result, gun not be removed the appeal Bureau of Prisons. This fol- the from bag. the lowed. bag the items taken duffel and ap Two issues are raised on this appellant’s pockets from quently were subse- peal. Appellant’s primary complaint is Asher turned over to Officer that the seizure of the sawed- patrol and locked in car. Officer search and his Asher, investigator, padlocked the the accident arrived off contained in being constitutionally scene load- bag the as invalid Upon leaving ed into an the in ambulance. and thus the trial court erred overrul hospital receipt the the directly ing suppress scene Asher went his motion to disagree and from there to the station the into evidence. We that, totality of the cir opened where he then the duffel hold under the case, m., proc approxi- This was at about a. cumstances in the instant 1:30 through ess obtained mately two hours after re- which the Asher had was not an unrea sawed-off custody bag ceived at the scene of in violation of sonable search and seizure the accident. No search warrant was the fourth amendment. padlock cutting obtained Wayne whether it by as back seat of the automobile or Wilson Identified Officer McSwain, apparent by special agent Rail- was handed owner of Frisco to him for the car, Bender, companion happened her road Mrs. or who to be at the scene of Gardner, acquaintance of Clifford accident. 3. The record is unclear as to whether Officer Wilson himself retrieved the duffel from incapaci- of an procedure custody to take war well It is established possessions. tated accident victim’s are valid and seizures

rantless searches While immunize this fact does not exceptional certain circumstances. under Edwards, procedures scrutiny custodial from See, g., e. purposes, all 800, 802, 94 U.S. 474-77 (1974); Coolidge v. New believe that 453-55, limited “intrusion” present case was a reasonable meas- In the instant L.Ed.2d 564 lawfully placed ure trial ruled that warrantless court position from which viewed shotgun fell seizure of the sawed-off shotgun. barrel of the within the requirement as articulated Second, appears from the States, 390 Harris v. record that discovery the sawed- *4 992, (1968). In S.Ct. 19 L.Ed.2d 1067 shotgun off was the inadvertent. While that: explained Harris the Court cellophane-wrapped revelation of the two objects that long It has been settled packets pocket from Wilson’s no doubt an falling plain view of officer in the heightened police suspicion regarding right position who has a to be in the Wilson’s activities no to there is evidence sei- subject view to that are suggest they that the were aware of may in evi- zure and be introduced shotgun’s they attempted existence when dence. injured to recover at property the man’s the accident feel 236, scene. Thus do not 390 at 88 also U.S. S.Ct. at See “plain shotgun that the view” the 326, Story, United v. 463 F.2d States any prior was denied, by barrel tainted knowl (8th Cir.), 327 — 28 cert. edge of gun. Coolidge the v. 988, 343, Cf. New (1972). 93 34 S.Ct. L.Ed.2d 254 71, 443, 91 A plain view is not a search observation 469 — (1971). S.Ct. 2022 meaning within the fourth amend subject ment and is not to the re thus that Finally, we are convinced strictions to the constitutional attendant the the incriminating evidence nature Johnson, provision. v. 506 United States apparent seized here. immediately was 674, 1974), denied, (8th F.2d 675 cert. Cir. Despite gun entire the fact that the 978, 1579, 95 S.Ct. 43 L.Ed.2d view, plain not in testified the officers (1975). qualify 784 order for inclu they that able to were see plain sion within it the view six no gun inches of which had barrel (1) must be shown that the initial intru sight shiny but that had end as it sion which the the afforded authorities had been sawed off. This was sufficient lawful; (2) view” was that the to justify the seizure the warrantless discovery of the evidence was inadver bag duffel and the removal the shot tent, (3) incriminating that the na gun necessary from it. It was not “immediately ture the evidence was police beyond the rea officers know apparent.” v. United States gun sonable doubt that the whose barrel Cir., 1975). Williams, 523 F.2d protruded bag illegal from the was an We believe that the in the facts instant shotgun. Rather the seizure satisfy case these tests. proper if the officers had reasonable cause to believe that the article was con The initial intrusion in instant the traband. the was the Here record reveals facts taking appellant act of Wilson’s gave possessions cause custody following the officers police into illegal believe an sawed-off shot that accident. It this effort that bag. gun brought shotgun within protruding barrel contained 326, 328 F.2d plain Story, into the v. 463 view States of Officer Wilson (8th Cir.), denied, 93 U.S. moment he cert. 409 first received custo- dy 254 34 L.Ed.2d According to the testimo- Cecil, v. 457 1180 ny at trial F.2d police an established

599 Buckhanon, v. v. here. See also United States See 1974);5 (8th Cir. (9th Cir.) (Huf 505 F.2d Sedillo, 151, 153 Johnson, F.2d denied, 419 United States stedler, J., dissenting), cert. denied, 413 U.S. (2d cert. (1974). Mehciz, 437 (1973); United States seizure of Thus we hold denied, 402 (9th Cir.), cert. F.2d in violation of was not shotgun here L.Ed.2d 139 amendment fourth Note, Wilson’s Mobility generally, See significance on rights. place no We Extending the Carroll Reconsidered: bag the duffel padlock on Items, fact that Iowa Movable Doctrine to shotgun had to be removed before' search of Wil (1973). The L.Rev. 1134 As noted fully examined.4 upon over bag was based son’s duffel provided above, barrel protruding lawfully ac whelming probable to believe reason good accident. This the scene of quired at was contained illegal an forfeit probable cause to search lawfully within bag which was time or through passage ed to free the padlock custody. Cutting the chose to wait mere fact that intrusion remoye gun was no an unlawful more the sawed- open automobile to reaching inside until had seize a visible from the outside. This police station. returned to the *5 Cecil, 457 F.2d United States v. reasonable less search and seizure (8th 1972). police in this The 1180 Cir. recently valid held intrusion carrying out the sei merely ease were in Cardwell Supreme Court by the au “plain zure which view” doctrine 94 S.Ct. Lewis, supra, 417 U.S. 593 — thorized. by appel raised The second issue that fact addition to the of the sawed- display lant shotgun was concerns seizure of the sawed-off view in full doctrine, counsel table “plain valid under view” jury selec during the suggest jury panel of the Supreme recent decisions Court into prior to its admission process, tion cause existed probable that if sufficient at the was made objection An evidence. to a of the conduct warrantless search The ob in chambers. accident, time to the court at the scene of court not but the jection was overruled bag was it was not lost when the duffel not admitted ed that station. police taken back to the offered, the case into evidence when Lewis, Cardwell v. 593 — Appellant have to be dismissed. would 325, (1974); 41 L.Ed.2d S.Ct. display now contends that 42, 52, Maroney, 399 Chambers v. as to render weapon prejudicial was so (1970). A cur ruling erroneous. We the trial court’s spe rent line of cases indicates disagree. The fact Supreme by the developed cial rationales into evidence subsequently received area are Court in the automobile jury of the by each member examined movable equally applicable to other We have dispels any prejudice. claim of bag involved items such as the duffel recognize in- Despite con- Buckhanon case appellant’s to 5. We contentions application incident trary, of the “search volved the case like United this is not a require- 1973) Lawson, the warrant in which to to arrest” 487 F.2d 468 oc- police justified general a locked While no arrest search of ment. 505 F.2d at 1082. a inventory policy. the search in the instant curred trunk on the basis preced- sought Here, probable which the evidence we note that the unlike suppressed plain probably of the view would ed the search necessity upon arrest Wilson without of a search. basis sufficient as a unconscious that he was but for the fact result of the accident. supra at Coolidge Hampshire, v. New no doubt that the was not sub- verdict 465, 91 at 2037. any way stantially influenced in display weapon. Kotteakos v. The properly possession took 750, 765, States, 66 S.Ct. the duffel bag following the accident. 90 L.Ed. 1557 protrusion of the weapon’s barrel sufficient, under Affirmed. decisions of this Court, provide the officers with prob- able cause to believe the guilty HEANEY, Judge (dissenting). Circuit of violating 26 5861(d).1 U.S.C. § It was justification not for breaking into the I respectfully majority’s dissent. The holding that Officer Asher did not “search” the appellant’s locked duffel The limits on the doctrine are im- bag and weapon that the was in plicit in the statement its rationale. view” eviscerates plain meaning The first of these is that plain those words under the Fourth Amend alone is never enough justify constitutional; ment. The test is it does warrantless seizure of evidence. This not turn on a judge’s view of simply reasonable is corollary of the familiar police practices. United States principle v. Law above, discussed that no son, amount of probable justify cause can warrantless search or seizure absent search, irrespective A warrantless * * * “exigent circumstances.” cause, per the existence of is se Coolidge v. New Hampshire, supra at except unreasonable for a few well-de 468, 91 S.Ct. at (emphasis included). exceptions. Coolidge lineated v. New Moreover, mere custodial not an exception to the require States, v. United Katz ment justifying an greater intrusion than that necessary performance to the (1967). Moreover, the fact that evi caretaking officer’s duties. See dence is in view at the time its *6 Lewis, 583, Cardwell v. independent seizure no has (1974); n.8 legal significance. Preston States, v. United * * * problem The with the 11 L.Ed.2d 777 view” doctrine has to identify the United States v. supra at 471— circumstances in which view has Yet, 472. only justification is the legal significance being rather offered to uphold the search and seizure simply the normal any concomitant of of the weapon here.2 This was not an search, legal illegal. or search;3 inventory I continue to adhere to the view that forethought exercise rather than claim * * * blameworthy only by are hindsight. probable cause [do not] anyone to arrest found in deciding inventory In whether an search proba- in the absence of reasonable, necessary quoted ap- weapon] unregis- ble cause to believe [the proval Court, Superior from Mozzetti v. * * * tered. Cal.Rptr. Cal.3d 484 P.2d Cecil, 457 F.2d 84, at 89: 1972) opinion) (citation (dissenting by recognition This contention is rebutted omitted). countervailing of the vehicle owner’s interest showing There was no here that the officers maintaining privacy personal of his weapon reg- had reason to believe the preventing anyone, including effects istered to the police, suitcases, searching from and other Judge 2. The observation of Aldrich closed containers and areas in his automo- Church, States v. police lawfully bile at the time the remove it denied, cert. storage. weighing necessity In (1974), 40 L.Ed.2d 760 is well taken: inventory protection search as own- * * * property against rights obtaining er’s un- Where the owner’s burden of a Amendment, met, readily can be der the Fourth we observe officers should arrest; pos- not under and there would

sibility that officers away

carried before the

obtain a warrant. majority’s reliance on the automo-

bile hold cases is also in error. None probable cause alone is sufficient

justify a warrantless search. enforcing the Fourth Amend- prohibition

ment’s against unreason- seizures, searches and

able the Court upon probable

has insisted as a

minimum requirement a reasonable permitted by the Constitution. rule, required general

As a has also judgment magistrate

probable-cause issue issuance and the

of a warrant before a search is made.

Only exigent circumstances will the

judgment as to authoriza- cause serve as sufficient * * *

tion search. 42, 51, 90 Maroney,

Chambers v. 32B,

LOCAL SERVICE EMPLOYEES UNION, AFL-

INTERNATIONAL

CIO, Plaintiff-Appellant, *7 al., REALTY et

SAGE CORP. Defendants-Appellees. Streit, City (Isra- Arnold R. York New Streit, elson City, & New York of coun- 1292, Docket 75-7346. No. sel), Appeals, Court Goetz, (Ro- City Maurice H. York New Second Circuit. Kaye senman Colin Petschek Freund & Argued July Emil, Getraer, Joseph Linker, L. Arthur counsel), City, New York for all ap- Sept. 25, Decided pellees except Sage Realty Corp. Dublirer, City (Du- Harold New York blirer, Haydon Straci, & City), New York appellee Sage Realty Corp. temporarily, required be value left an automobile to leave his car items of pro- police may adequately protect property. more to his stored do no windows, merely by rolling up F.2d tected States v. returning locking the vehicle doors himself, keys to the owner. The owner