United States v. Kenneth Wayne Johnson, United States of America v. Derrick Dewayne Goodman
506 F.2d 674
8th Cir.
1975
Check Treatment

*1 America, UNITED STATES Appellee, Wayne JOHNSON,

Kenneth Appellant. America, STATES

UNITED Appellee, GOODMAN, DeWayne

Derrick Appellant. 74-1489.

Nos. 74-1488 Appeals, States Court Eighth Circuit. Oct. 1974.

Submitted

Decided Dec. 1974. April Denied 1975.

Certiorari See 95 S.Ct. 1579.

Philip Wilson, Lofton, M. McArthur & Rock, Ark., appellant. Little for Atty., Jackson, Fletcher Asst. U. S. Rock, Ark., appellee. Little VOGEL, Circuit Senior LAY and Circuit STEPHENSON. Judges. VOGEL, Judge. Senior This is a Ken- consolidated Wayne neth and Derrick De- Wayne Goodman from their conviction charges unregistered possessing *2 675 registered appel- ther was of 26 U.S.C. § in violation firearms 5861(d). Registra- together in lants the National Firearms Appellants were tried tion and Transfer Records. under District Court1 before the Delinquency provisions of the Juvenile single The is whether issue Act, seq. et 18 U.S.C. 5031 § denying ap the pellants’ in District Court erred suppress the two motions to undisputed The evidence discloses shotguns. Appellants sawed-off contend during patrol eve- while on routine ning that the were obtained follow Officers December ing a warrantless search of the Philip of the Lit- Jones and H. Kerr C. subsequently and were introduced into Rock, Arkansas, Department tle Police evidence, in violation the United sign. running stop stopped a vehicle for a Constitution, Amendment IV.2 including appel- males, Three the two See Rule 41 of Federal Rules alighted ap- lants, and from the vehicle Criminal Procedure. proached police pas- A fourth car. senger, female, a remained in the front prop- hold that the District Court We seat of the vehicle. erly sup- denied motions to press. upon Our determination is based Following identification of the driver application “plain of the view” doc- (appellant pas- Johnson) the other and particular trine to the facts of this case. sengers, a The warrant check was run. warrant check disclosed that an arrest battery Generally, warrant for assault and the Fourth Amend outstanding against appellant requires Johnson. ment that a search be conducted placed authority He was under arrest and searched under the of a valid

by Officer Jones. A number of .410- warrant or under circumstances which gauge shotgun in one shells found of a demonstrate the reasonableness pockets. of his coat warrantless search. Chimel Califor nia, 752, 2034, 395 L. U.S. 89 S.Ct. approached Thereafter, Officer (1969); Terry Ohio, Ed.2d 685 appellants’ vehicle in order to “inven- 1, 1868, U.S. 88 S.Ct. tory” entering it. the vehicle York, Sibron v. New inventory search, conduct an 59, Kerr testified that he shined his flash- (1968); Brinegar States, light and into the interior of the vehicle 93 L.Ed. 1879 appeared saw what end of to be the butt States, Carroll shotgun wedged a sawed-off between U.S. L.Ed. the back and seat of the rear cushions view” doc trine, seat. Officer Kerr entered the vehicle view observation made police and retrieved the rear .12- from seat a officer from a where gauge shotgun. At time sawed-off this the officer is entitled to be is not a pas- meaning Kerr ordered the female “search” within the of the senger from the Further search vehicle. Fourth Consequently, Amendment. .410-gauge of the vehicle disclosed a restrictions of the Fourth Amendment applicable. sawed-off in the front seat area. are not Harris investigation States, nei- Later determined that Henley, against seizures, 1. The Honorable J. Smith unreasonable searches and violated, States Arkansas, shall not District Eastern District and no Warrants issue, upon sup- cause, shall Western Division. but ported by affirmation, par- or Oath and provides: ticularly describing place searched,

2. The Fourth Amendment to be people persons things to be secure and the or to be seized. effects, persons, papers, houses, their U.S.App. L.Ed.2d Marron v. Goodwin v. United (1965). Finally, L. D.C. F.2d 793 discovery object that the Ed. 231 flinger, v. Har seen was shotgun gave fact a sawed-off reason weapons. search the vehicle for further *3 Carpenter 29 L.Ed.2d v. summary, the Sigler, (8th In we hold valid 419 F.2d Cir. shotgun seizure of ing 1969) one sawed-off follow . plain view observation. Further Despite Kerr to the intent more, the seizure of the first “inventory” vehicle, his conduct the justified the warrantless search of approaching appellants’ po vehicle was weapons vehicle for other or contraband reasonably lice conduct associated with and the seizure of the second sawed-off shotgun. Consequently, stop. Therefore, a traffic when Officer both in in a to view the properly admitted into evidence. side of the he was situated where Affirmed. he had be. States Cf. Story, (8th 1972), v. 463 F.2d 326 Cir. denied, LAY, Judge (concurring). cert. 409 U.S. United States opinion. I concur in the result of the Briddle, (8th 1970), v. 436 F.2d Cir. However, express I substantial doubt denied, cert. that view doctrine should ; (1971) United States applicable when the is involved officer Holgerson, (10th 424 F.2d 1130 Cir. making a search. I would sustain 1970) . admissibility of the evidence on ground cus was under flashlight Officer Kerr used his and, todial such, arrest as officers view the ve interior reasonably had cause to hicle. The fact that the contents of the person, nearby his as well as his auto may vehicle not have been visible with mobile, might any weapons that he out the use of artificial illumination does Maroney, have. See Chambers v. preclude not ap such observation from 26 L.Ed.2d plication view” doctrine. Florida, Gustafson v. cf. Wickizer, States v. 465 F.2d 38 L.Ed.2d (concurring (8th 1972) Cir. Robinson, United States v. opinion Judge Bright); Marshall 38 L.Ed.2d (5th Cir. (1973); Moodyes 1970). (8th 400 F.2d Cir. view Kerr of what appeared to be a sawed-off en- L.Ed.2d 407 At the time of titled him to enter vehicle seize fugitive. search Johnson was a known Story, weapon. The extent of the initial search was supra; Berry, 423 F.2d weapons, limited to which were found. (10th 1970); Cir. Nunez v. United circumstances, the search was 1967); States, 370 F.2d upheld. reasonable and should be