United States v. Joseph A. Bozada

America, of UNITED STATES Appellee, BOZADA,

Joseph Appellant. A.

No. 71-1727. Appeals, Eighth Circuit.

Submitted 1972. Nov. Jan.

Decided 1973. May17,

Certiorari Denied Stee93 S.Ct. 2161. Mo., Reardon, Louis,

Daniel St. P. appellant.

Roger Pauley, Dept, Atty., A. Jus- tice, appellee. MATTHES, Judge,

Before Chief MEHAFFY, GIBSON, HEANEY, LAY, BRIGHT, STEPHENSON, ROSS Judges, sitting en Circuit banc. STEPHENSON, Judge. Joseph appeals Defendant A. Bozada charge jury from his conviction of the possession goods of unlawful had been stolen from a motor vehicle moving interstate commerce violation Title 18 Dur- U.S.C. 659. ing proceedings the course suppress trial court denied a motion alleged to have been obtained as a result unlawful question presented The sole seizure. appeal whether of an trailer unit located on private parking lot without a warrant was in violation the Fourth Amend- agree ment. We trial court that the and seizure was lawful. Sgt. Henry Llewellyn of the St. Louis Metropolitan Department Police received telephone call a mant, from a reliable infor- a man known to informant as Tag” inquired “Mr. of informant as purchas- to whether he was interested pairs shoes about at $4.00 per Sgt. pair. received the tele- phone p. call at his home 8:30 m. April 27, (During proceed- ings agreed below, stipu- defendant given permit by the doors, information feet to to lated that the access the back probable doors, reliable and that the bolts on the informant was cut and searched existed.) The follow- the trailer. cause for search Shoes were found inside the ing morning Tag shipping meet informant to trailer that information told had on designated p. matching m. him at at a the boxes the information 2:00 on previously the would be shown shoes. the box of shoes over and turned by meeting Llewellyn Appellant area observed the Bozada the informant. through shortly and saw informant was arrested binoculars thereafter at anoth- er men the area about location. and two other leave The contents of the trailer Sgt. p. m., subject p. sup- Llew- were the 2:45 m. About 4:00 motion to ellyn, office, press. at received a then his back telephone indi- informant call from the Sgt. Llewellyn he did testified that cating pair he had received that attempt secure a search warrant to Llewellyn then shoes from trailer. because of information he had re- the obtained the met the and informant concerning ceived imminent move- the con- information box shoes. From location, ment of the shoes to another Llewellyn that on the box learned tained plus obtaining the difficulties ship- part military of a shoes were p. search warrant after 5 m. ment Com- from International Shoe determining The trial court that They pany were for Okinawa. destined without a warrant was valid shipped supposed to been on relied Carroll v. United January 27, 1971. Informant stated 132, 45 was “Boza- name trailer (1925) progeny and its Chambers Ma- present da” and was defendant roney, the shoes. when informant obtained (1970) ; Husty Ed.2d 419 Llewellyn After ascertained 75 L. “hot”, probably shoes were informant (1931). Appellant, Ed. 629 on other Tag in- call made another was urges hand, Hamp- Tag’s bring $16,000 structed office. shire, 29 L. shortly, was He also advised that controls for the reason would be moved another loca- shoes case, although the instant there pick tion was to them where informant probable cause, was no there existed exi- up. gent justify circumstances sufficient Llewellyn informant then drove searching without a war- parking private trailer lot where the rant. arriving parked, p. m. was at about 4:50 supra, It is our is pointed Informant out the trail- Bozada readily distinguishable. In Part II-B er shoes obtained. (403 2022) up It was hooked tractor to a emphasized Mr. Justice Stewart1 only air brakes set. It was the trailer exigent jus circumstances sufficient hooked Another trail- movement. simply tify a did not up against parked er was end rear Coolidge’s regularly exist.2 car was Llewellyn of the Bozada trailer. driveway house, he in the of his men, joined him at two his who had house, he no arrested had was inside scene, watched the tractor-trailer to the access automobile after the They appeared. about an hour. No one property, arrived his then or six moved tractor-trailer five Coolidge, supra a case where made into in- nation can this be 91 S.Ct. 2022 warrant,’ only practicable joined to secure a ‘it II-B Mr. dicates Part Brennan, Douglas, Carroll, supra, Justice Mr. Justice exception’ Mr. Justice Marshall. de- ‘automobile simply spite label, irrelevant.” short, Id., “In S.Ct. at legal possible imagi- omitted]. [Footnote no stretch of holding guard seizing property a car was under two presenting probable officers, cause issue to other known for probable hand other some time role the car crime,-and carrying immediate was not automobile illegal purpose. Given a warrant. used for search, course is rea- cause to either exigent hand, In the at matter Fourth Amend- sonable under circumstances did exist. The trailer ment.” being purpose used an for unlawful in satisfied the search We are that transport shoes, —to reliable in this case meets the reasonable- test that formation indicated it was See, g., ness. e. Preston v. United moved, the tractor-trailer unit was 881, 364, 84 S.Ct. movement, ready hooked the own custody, er of in the vehicle was not Affirmed. appeared there were who in others large. who volved were at Judges HEANEY, LAY and (dissenting). Coolidge, As we read Carroll and progeny its The remain viable.3 auto respectfully dissent. exception mobile continues not but under “ * ** most basic constitu- [T]he every conceivable circumstance. Exi tional rule [the seizure] search gent circumstances must exist before a area is that ‘searches conducted outside warrantless search be made. A judicial prior ap- process,

pressing prompt need for a search must judge per proval by magistrate, are reasonably apparent. United States se unreasonable Menke, (CA3, 1972); 468 F.2d 20 subject only spe- to a few Amendment — cifically Vivero, 141, United States v. 465 F.2d well-delineated established and (CA9 1972); 143-144 United States v. exceptions.’ exceptions ‘jealous- Ellis, 962, (CA2, 461 F.2d ly carefully drawn,’ and there must 1972). showing exemp- be ‘a those who seek short, exigencies we are convinced that exi- tion . . . gent amply justified impera- circumstances made situation seeking warrantless search that was made tive.’ burden is on those ‘[T]he question. trailer exemption it.’ to show need for * * * fleeting. Coolidge search was Hampshire, Movement New appeared trailer imminent. areWe impressed (Footnotes (1971) the notion that a stake- out or omitted.). view, government limited seizure of the trailer In our should have been made search has sustain burden. failed to its being procured. warrant was That was, course, The truck mobile but pose problems could well more than it justify this alone is insufficient fact would solve. In Chambers v. As warrantless search.1 Mr. Justice supra, 399 U.S. at 90 S.Ct. at Coolidge: Stewart said Court observed: “* f Carroll [I] purposes, “For constitutional see

no 790, permits difference between on the one hand L.Ed. 39 A.L.R. 458-464, 482, Troiano, 3. at 91 S.Ct. 2022. 365 F.2d (3rd Cir.), denied, 418 n. 1 cert. ; apparently Some Courts have taken the position mobility Walker, of a vehicle 307 F.2d justifies See, (4th 1962). Cf., warrantless search. Cir. Sharpe, Gibbs, (9th United States v. 452 F.2d 435 F.2d Cir. (1st 1971) ; support position Miles, 1970). Cir. United States v. Other cases (5th 1971) ; 445 F.2d Mr. Cash Cir. taken Justice Stewart. this basis warrantless searches allow of an requirement property swallow the vehicle, private and be- would clearly exception result scope inci- yond a valid search —a contemplated by per- Court. arrest, would then dent to an of a a warrantless mit well course, if the vehicle were Of no found suitcase or a box. We il- time of the search used at the suggests an extension case such legal purpose, no warrant would be re- * * *”2 of Carroll. Hampshire, quired. su- 461 n. 20,3 pra

Id. S.Ct. 2022. at 463 n. “being requires But, the term used” Nor would fact be in or the vehicle at someone truck out. If goods justify time that carried the war- contained stolen case, the Court were not vehicles rantless search. Most upheld in probable would have search Cool- to search cause idge police carrying Thus, out that because the to of crime. contain evidence a ed.) Id. added). Id. at Id. at added.) motion on the v. plain Procedure, United Cleary, 169 Law 1972) ; Throughout (1972) ; forfeiture, when goods concealed in a Amendment of lowing warrant could be search warrant between rant of find ruling adoption “Thus, with its load of of.” would be difference made as to the of ture “ * * * readily rant “In none “ Williams, ** transportation (9th in house of or to ; Wright, States, United States warrant. the First McCormick’s Handbook as to Second and Fourth defendants, destruction.” could 543 C. contraband Evidence, Cir. stop contemporaneously with the 85 Harv.L.Rev. it is beyond § 668 at 73 45 S.Ct. at 283. It is 45 S.Ct. at 283 or [Ujnder S.Ct. at 284 455 267 validity highway. 1970). See, generally, (1925), an automobile. Before a movable talking similar impossible Congress, cases opinion seizure put secured concealed illegal F.2d 1227 and goods * * Federal Practice & reach transportation the rule contended v. out about a vehicle in cited vessel, subject to 171 at 384-385 liquor place, Payne, Amendment, goods For (Emphasis liquor without a war- ” the automobile necessity in Carroll v. in the course Congresses, to Court makes 45 is there in the Fourth example: where reach get (Emphasis (Emphasis subject in if carried S.Ct. (6th 429 F.2d a dwell- disposed the fol- officer, of the a war- forfei- for a add- like Cir. E. United States 1967) ; 494 Kenzie, Cir. Maroney, Baxter, Ed.2d these started 26 L.Ed.2d lend 2d 988 Cir. taldi, their facts from the added.) v. might United highway. United denied, carried out Id. at able The 75 the car (6th The eases of United States of it on information other than the victed while if he has been by of the Menke, (7th 1970), from the decision support 1972) one who has been Cir. United States v. 453 F.2d 506 mrtomobile 460 cases, officers have indeed been States v. (4th highway was 446 F.2d 949 liquor of Cir. not be seized 1962). >> 399 U.S. 468 F.2d 20 ; (1972), cert. immediately. stopped Cir. 45 419 F.2d 116 1971) ; of v. L.Ed.2d 335 present (1931), are also Husty, 282 is detected same approached, Taylor, S.Ct. denied, Ellis, 461 1967) engine. Thus, but concealing (1970), United Prince, majority’s Court (7th in motion on offense present 92 occupied, the car case. only unless the F.2d 34 Belcher, ; distinguishable on already 428 F.2d (6th (6th (3rd Williams, United States Cir. 90 in fleeting (1971) ; States once and F.2d may In it rushes the senses Cir. Chambers Cir. case Cir. 1971), S.Ct. was distinguish- viewpoint. (Emphasis Chambers, twice con- to search and when convicted, F.2d 358 448 Husty (5th 962 occupant be seized America presence in both a v. Cas 1971) ; 1966) ; 1972) but do parked senses, v. Mc if not Smith public 31 L. F.2d cert (2m (8th Cir. by. F. as v. v. : scene, good believe that There were three search had reason to officers at radio-equipped, their car contained evidence vehicle nearby. Thus, courts one of crime.4 policemen scene, or someone at Court, suggested It has been headquarters, could have secured the distinguished vehi- between warrant others remained containing cles mere and those parking lot. containing goods contraband, or right deny proper It would would it also have been for the vehicle for the former have seized the if vehicle some- right one came for it would sustain the before the ar- clear, such a rived. vehicle the latter. It is however, Hayden, Warden majority relies on Chambers (1967), such a distinc- (1970), proposition tion has no constitutional basis: search, if there is just carry “Nothing language reasonable temporarily supports immediate Fourth Amendment search as it is to the dis- seize tinction the car await a between ‘mere evidence’ and warrant. instrumentalities, crime, clear, fruits made it how- * * * ”5 ever, that Chambers cannot viewed as contraband. supporting reasoning: such reject suggestion We also the “ * * * justified search can be- is the actual It true that police cause the had reason search of the in Chambers automobile the truck was to be moved. Sound many police was made station police practice requires stopped hours car after had been containing assume a vehicle highway, when car was no goods or a crime will be longer movable, any ‘exigent circum- they promptly moved. on Unless act passed, and, stances’ for all the had may assumption, they op- this lose the shows, record there was a portunity apprehend those who have Nonetheless, easily available. question committed crimes. But re- analogy misleading. this case is appropri- mains form what of action is giv- is that rationale of Chambers ate and constitutional. [emphasis justified en ini- a included] proper intrusion, It was tial difference there is little surveillance, highway they truck open between on a search just hours, did nearly that. For two the station. a later search at they Here, question prior watched and we waited for someone to deal come [emphasis for included] truck and no whether During justified. one hours, they did. For these initial intrusion is two adequate abundantly purpose, clear secure it seems a significant incurring search warrant there a constitu- is stopping, risk car would be tional difference between moved. “ * 2034, virtually California, 752, [G]iven 89 uni- 395 U.S. S.Ct. * * * *” availability versal 23 automobiles our L.Ed.2d 685. society Hampshire, 403 there little v. New difference between 2035, driving 29 91 container 461 n. [a such as a suit- case, trunk, box, bag] away (1971). briefcase driving away brought it in a vehicle supra, purpose. course, to the for 399 scene Of Chambers (J. suspect enough if there is a criminal 90 ; Har close 62 n. Ellis, might get lan, dissenting) to the automobile so that he a weapon destroy 4; supra from or n. evidence with- at 461 F.2d 966 it, police may Court, Term, ap- Harv.L.Rev. make a search of propriately scope. (1971). n. 30 limited Chimel v. 777, 780, searching 884, 11 L.Ed.2d car seizing, (1964); Agnello entering private highway, open 30-31, an unoc- property to and search seize (1925).” 51 A.L.R. cupied, vehicle used -s for » illegal purpose, Terry Ct. 1868, 1878, Ohio, 88 S. omitted.). (Footnotes Accord, supra Chimel Hampshire, California, U.S. at n. (1969). added.). recent (Emphasis As one put scholarly work it: reject also that the “ seeking * * a warrant excused reading of Cham- A broad the hour late and because vehicles, since ‘movable’ bers—-that finding judge difficulty would have they may a warrant detained until protec- to issue the warrant. The vital with- be searched also obtained cannot tions of the Fourth Amendment indefensible. warrant —seems hinged upon of the the convenience underlying Clearly the interests police, prosecutors judges. Mc- be best Fourth Amendment would Donald extending in- to one whose served right privacy is at stake terest (1948), Supreme Court stated: immediate war- choose between “ * * *' po- requiring the rantless search reason, except No incon- justification offered lice to submit delay in of the venience officers ”* * * magistrate. search to getting preparing papers and Law of E. 586-587, ring) ble tified dered den Importing search must Amendment search which ception may of constitutional itations “* * * initiation, Court Furthermore, Cleary, intensity majority: 344, 356-358, ; see, by’ its initiation Evidence, has Hayden, States, (Mr. upon McCormick’s obscures Co. held e. circumstances Justice ‘strictly g., virtue of its violate reasonable in the 18 L.Ed.2d DiRe, proposition scope, 222, 225, 92 L.Ed. 171 at 385 scope. Kremen v. permissible. Preston v. United regulation. 51 S.Ct. action (1957); Handbook Fortas, tied utility as scope of the (1931); past as a means well as the at its 153, 158, relied intolera 77 S.Ct. Go-Bart concur that a War This ren jus lim see in nary Fourth Amendment secure such that If the tween ment and gencies those who seek be true to that constitutional quires constitutional mandate that ment has grave emergency, sires serves a sons are no seek a search warrant. magistrate, “We are business problem * held in Johnson v. United States privacy processes presence imperative.” warrant the citizen and the constitutional of the situation made high not And so the Constitution interposed excuse warrants outside appears hours, justification dealing function. officers are unable of a search warrant the home. We not exemption from the our rights the absence of then the cure for the failure to sacrifice with formalities. government requirement, Fourth Amend- pass magistrate But Absent of our citi- they showing by those the exi- of ordi- by-pass- require- cannot violate police. some rea- de- be- re- zens, pro- but to streamline the

curing procedure. agree expressed amicus,

the excellent brief practicalities enforcement law when

should be examined courts

review the enforcement conduct law

officers. we must But also consider

requirements of Amend- the Fourth

ment; do, inexora- and when we we are

bly forced to the conclusion

search here was unreasonable. Moreover, persuaded are not we good requires that this law enforcement contrary, if To sustained. permit of this

we the warrantless search might

truck, adopt as well

clearly unattended understood rule that

vehicles can searched at time long as there is

to make the do search. We gone that far, has prepared to do we are so. PHILLIPS, Petitioner-Appellant,

Neil Warden, HOCKER,

Carl G. Respondent-Appellee. (argued), McDonald, Paul A. Bible No. 72-1715. Reno, Nev., Carano, Bergin, & Wilson petitioner-appellant. Appeals, Court of Groves, Atty. Deputy Ninth Circuit. Robert A. Gen. (argued), Ashwede, Herbert F. Chief Jan. Deputy Gen., List, Atty. Atty. Robert April-16, Denied Certiorari Gen., respondent-appellee. 93 S.Ct. 1916. See JERTBERG, Before DUNIWAY and

TRASK, Judges. Circuit JERTBERG, Judge: Appellant, prisoner Phillips, Neil Nevada, appeals the State of or- from an der of the District pe- denying State his Nevada corpus. tition for a writ Fol- habeas lowing appellant a jury, trial was con-

Case Details

Case Name: United States v. Joseph A. Bozada

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 7, 1973

Citation: 473 F.2d 389

Docket Number: 71-1727

Court Abbreviation: 8th Cir.