United States v. Ralph Donald Tharpe, 536 F.2d 1098

United States v. Ralph Donald Tharpe

536 F.2d 1098

5th Cir.

1976

Check Treatment

*1 - nom., Henderson, Francis v. sub U.S.

-, 48 L.Ed.2d 149 S.Ct. America, UNITED STATES of Plaintiff-Appellee, moreover, note, the Su “ ‘cannot be made decisions preme Court’s v. juror expo proposition

to stand for Ralph THARPE, Donald a state defend about to information sure Defendant-Appellant. news accounts or to prior convictions ant’s No. 75-1491. charged which he is alone crime with of the the defendant of deprives presumptively Appeals, Court of ” Press Association Nebraska process.’ due Fifth Circuit. - -, -, Stuart, U.S. -, 2791, 2805, 49 L.Ed.2d U.S.L.W. Aug. 1976. 29, 1976); (U.S. quoting June Florida, 794, 799, Murphy v. (1975).2 44 L.Ed.2d 589 In

S.Ct. case, showing expo is no that the there jurors appellant’s prior two

sure of con during punishment phase

viction Rodriguez denied a fair

proceedings trial. only jury

Because the issue then before the punishment

was the to be assessed

Rodriguez, prejudice there was no inherent

in their informed of one prior of his Indeed, the prosecution

convictions. later

properly introduced evidence of four other

prior importantly, convictions. Most all the

jurors carefully questioned were and ad report.

monished not to consider the news seen, jurors

As we have the two who had exposed

been to the article both affirmed ability

their disregard intention to it.

We therefore find no in the indication appellant’s

record trial was not funda

mentally Florida, Murphy fair. See su

pra, 421 at 2036-

38. denying

The order of the District Court

appellant’s application for a writ of habeas

corpus is therefore

AFFIRMED. Appellant’s 2. “supervisory power reliance on Marshall v. United apply its to formulate and proper standards for enforcement of the crimi- (1959), misplaced. Marshall concerned nal law in the federal courts.” 360 U.S. at exposure jurors, during guilt- of seven (emphasis supplied). 79 S.Ct. at 1173 As the trial, phase or-innocence federal to various Florida, Murphy supra: Court stated concerning pri- news accounts the defendant’s statement, In the face of so clear a it can- Noting jurors or record. had been not be maintained that Marshall was a con- exposed high potential to information with a ruling applicable, through stitutional now prejudice, Supreme Court reversed the Amendment, Fourteenth to the States. decision, however, conviction. was not 421 U.S. at grounds based on constitutional but rather on *2 (Court Eskridge, Miss.

Jeremy Tupelo, J. appointed), defendant-appellant. Hailman, R. H. John Ray, Atty., M. U. S. Miss., Oxford, plain- Atty., Asst. U. S. tiff-appellee. BROWN, GEWIN, Judge,

Before Chief THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MOR GAN, CLARK, GEE, RONEY, TJOFLAT HILL, Judges.* Circuit DYER, Judge: Ralph Tharpe appealed his firearms con- contending viction discovery gun which led to the unconstitutional, gun should evidence excluded as dis- have been panel majority of this trict court. A reversed, finding the search could not Ohio, 1968, justified Terry v. under since who search did conducted testify not that he feared he was explicitly might because be armed. Cir., The Court took * partic- Judge arguments Wisdom did not Because of illness En Banc court that heard oral hearing ipate join opinion. the consideration of but did due to illness this Judge Thornberry case. was member of ques- posed banc males. officer was

this case en alone when he importance concerning stop. exceptional made the roadside Half an tion hour be- interpretation application stop, fore the he had proper received radio Terry. agree dispatch asking with the district court car, to look for a matching the confronting description that under the circumstances car *3 judice, the police stopped, the officer sub and known to Raymond contain protective Hester, a Ter- just passed reasonable who had of bad in checks the ry affirm district Mississippi search. therefore another town. About a week earlier the court. officer had been informed that Hester, men, along with two the Tharpe of a Ter analysis purported Judicial brothers, suspected were an of Alabama the ry focus on facts known to search must burglary. Officer Martin had previously encounter, on the the officer scene seen Hester and knew him by sight. When the of risk of reason and inferences car, the stopped asked the driver if he those ably totality spe from the of drawn was Hester. The driver said he was not Our concern is what cific circumstances. and showed the officer a driver’s in license shows the officer knew on the record the Wigginton. the name of Martin asked objective If the officer had an fac scene. again Hester, if he was indeed and the thinking tual basis for then there was a real driver identity. then admitted his Martin his safety, risk to his later verbaliza driving arrested for without a license. thoughts can feelings hardly tion of his or Officer Martin then asked the pas- two dispositive of the be on-the-scene reasona sengers to identify they themselves. When conducting protective a bleness of search said were Ralph Carl and Tharpe, he weapons. get told them to of proceed- out the car and terms, In Terry the “officer must be able down, ed pat to and discovered the point to and articulable facts” illegal gun Ralph Tharpe. suggesting physical actual risk. It was ob- That officer Martin faced in- substantial vious to the Court determination possible dications of danger to himself be- of the need for the judged frisk had to “be Tharpes might likely cause the be armed an standard” because the hardly questioned. alone, can He was at feelings or hunches an of officer are too area, a night, poorly in lit facing three men lacking effectively guaran- in substance evidently who had been drinking. He had rights. protection tee of constitutional 392 arrested the Tharpes’ companion. He had 21, Supreme at 88 at 1880. information that the Tharpe brothers were pains emphasize took burglars; known that they were now sus- that, just subjective as whims officers pects ain recent burglary; unsolved frisk, justify so, could not a very were that present moment as light protean variety of “the of the street passengers with a man sought on felony encounter,” judge courts must each individ- just committed hours earlier. flexibly ual factual context according to At suppression the hearing, officer Mar- objective evidentiary “the justification tin testified to his knowledge of these facts. which requires.” the Constitution subjective His feelings may have been 15, at 1876. equivocally expressed, but testimony his Our determination of the clearly reasona shows that he felt a risk of danger, urged the justify bleness of subjective had awareness of facts “protective” upon as must turn those justifying apprehension. such an This sat- objective facts known to the officer at posited isfies the principle by Terry au- dark, time. After officer Martin of the “a thorizing reasonable search for weapons Fulton, police department Mississippi protection for the police occupied by a car three white where stopped he had reason to believe that he is dangerous the officers were in United danger.” an indi dealing with armed 27, 1969, v. Humphrey, 1883. States Cir. 409 F.2d U.S. at vidual.” 1055, 1058; 1971, Collins, protective pat-down United States v. We hold 100, 610, U.S.App.D.C. 439 F.2d prudent procedure. Unit proper Poms, companions 484 F.2d Here officer’s search of 4 Cir. ed States Green, place 921; arrestee took a context United States 623-24; factually dangerous, the ordi- unlike F.2d App.D.C. mere nary F.2d situation of the traffic violation Berryhill, 9 Cir. 1193; Toro, Humphrey, supra, v. Del where an officer’s as- cf. United States will ubiquitous, omnipresent sertion of fear 521-22. legal a foundation infer- suffice as requirement legal We know of no danger, vaguely suspi- ence risk of feel “scared” policeman must driving” cious “manner of in United States *4 that the danger. Evidence of threat 1974, Kirsch, specific facts as aware of sufficient go We not so far the Ninth need as in satisfies suggest would justification general Circuit’s rule con of Terry can requirement. constitutional the ferring categorical upon reasonableness pat-down to a search be read condemn not searches companions of all of the arrestee by po an inarticulate made to the incident arrest of the other. whose courtroom testimo inartful liceman Berryhill, We supra. simply hold that of with assertions brava ny is embellished where good there was reason for an officer do, it is that he was aware long as clear so apprehend he was position that in a of facts which would warrant of companions real danger from of an arres he was dan person to believe reasonable tee, that pat-down officer’s is com the the Under familiar standard of ger. patible Terry. holding with Our narrow man, prudent related purpose reasonable no Terry does not that the intimate the Terry rule to the function invoked sham “standard” can be to condone insisting served on the retro by would be pretextual or searches. Cf. United States scared.” incantation “I was spective Robinson, 1973, 414 94 S.Ct. foolhardy will policemen never ad- Some 427; v. Lef United States Conversely, mit fear. reliance such a kowitz, 52 S.Ct. litany necessarily prone self-serving is 877; 76 L.Ed. Amador-Gonzalez by rationalization an officer after the fact. F.2d 308. 5 Cir. any all easy It would be too for officer to Tharpe proved faith in this has not bad belatedly recite that he was scared in situa- underlying evi case. was sufficient There any where he tions neither had reason to be by the conclusion reached support dence scared, nor was scared. indeed The Su- sup court that the motion to district that the preme poten- noted press should be denied. relying upon subjective abuse in tial for squared protection with the rule cannot turn to the issues We now other by the individual the fourth guaranteed by agree We Tharpe. panel raised with the amendment. Tharpe’s that contention that he was denied right speedy his sixth amendment to a trial with stop We are here concerned is merit. have considered the without where typically traffic offense a routine for pretermit that were contentions of “review record reveals no the court’s e., i. panel, ted that the documents . we can reason- . . from which Tharpe’s prior convictions were certifying passengers driver ably infer [the authenticated; govern that the defectively dangerous,” or armed and were] “ docu produced ment have these stop we a car we should time ‘[A]ny [the officers] pre-trial to a motion response ments in danger’ adequate jury, is trial are material; court, reasonably exculpatory infer that the defense for or ourselves to non-jury in this trial L.Ed.2d 917 I think the district court its area smaller allowing govern- sloping abused its discretion in and its majority sides less than the case; opinion ment to reopen its evidence indicates. found a warrant- support Tharpe’s was insufficient to convic- less reasonable judgment acquit- tion and his motion for police where a officer observes unusual granted. tal should have been We find conduct him reasonably which leads these contentions of merit. devoid experience conclude of his light may be activity criminal afoot and that judgment The of the district court is persons may with whom he is dealing AFFIRMED. dangerous be armed and . GEE, Judge, Circuit with whom GOLD- Terry: Sibron echoes BERG, CLARK, GODBOLD The officer is not entitled to seize Judges, join, dissenting. and search every person whom he sees on This is a troublesome case. I would not the street inquiries. or of whom makes strongly argue majority opinion that the is Before he hand on places person wrong, but I cannot myself convince that it anything, citizen in search of he must right.1 panel opinion states the rea have constitutionally adequate, reasona- why Tharpe’s sons I think conviction should grounds doing ble so. In the case of be reversed. v. Tharpe, United States self-protective search for weapons, he *5 (5th 1976). F.2d 326 Cir. These need be particular must be able to point gone into here only insofar as conflict reasonably from which inferred that he with the present majority view. armed dangerous. individual was and It seriously cannot be maintained that 392 U.S. at 88 1903 present either the majority opinion or Offi- cer procedures Martin’s which approves Neither Terry requires nor Sibron are “reasonable,” as that term is com- policeman “scared.” Nor does the monly used. question Both are. The panel so; opinion either to construe do in whether they are inso fourth amendment contrary.2 deed it does the What do terms alongside and when laid the amend- require, what I unable to am read them ment’s bias warrantless bracing of requiring, otherwise than is that to make people on a public street. Actions reasona- valid, pat-down, warrantless officer ble in the first sense are not always so in (1) proposing to do must first have “rea so the second. See Almeida-Sanchez v. United (Sibron) sonably inferred” or come “reason U.S. (2) ably (Terry), on the basis conclude” (1973) L.Ed.2d (Powell, J., concurring); facts, (3) of the specific and articulable cl id. at 93 S.Ct. 2535 (plurality person may is or be “armed concerned opinion). It does not seem to me that these Thus, it dangerous.” enough and is not actions are constitutionally “reasonable.” merely reasonably; that he have acted he is

More particularly, we deal thing constitutionally here with the about to do a extraor configuration dimensions and of a search a citizen specific dinary halt and without —to amendment, inroad on the warrant, him, fourth arresting sanc and with without tioned and by delineated the Supreme out to arrest probable cause him —and his Ohio, Court in doing basis for must fall within the ex so (1968), 20 L.Ed.2d 889 by cut out traordinary exception Sibron v. York, New or fail. Judge

1. So commences Coleman’s dissent from 2. 526 F.2d at 328 n.6. panel opinion, by our here reversed the court Tharpe, en banc. United (5th 1976). not seem to we actions do do not mean to declare that whenever a Martin’s Officer his granted that Let it be so. decides to take someone to the policeman me to do that he rea dangerous, even was station, reason, any situation reason or for no he was Tharpe have concluded sonably could me, For may search first. Officer Mar- one, it three to odds were dangerous: tin’s candor has undone his search. While a just arrested he had nighttime, sorry is a reward for candor reversal Tharpe had been companion, Tharpe’s articulation, poor I fear it is one mandated Mar granted that drinking. Let it even be requirement the strict by Si- have concluded reasonably could tin extraordinary bron that who take armed, much though this seems justify- the burden of measures must bear burglar, was a known doubtful: he more ing respectfully them. I therefore dissent. burglary, unsolved of a recent suspected company.3 The difficul was in bad and he GOLDBERG, Judge (dissenting). Martin drew is that Officer ty in this case conclusions; certainly, he of these none join Although fully my I Brother Gee’s testimony that he in his gave no indication case, separately dissent in this I write Instead, why asked he when done so. had emphasize my general agreement in other candidly responded Tharpe, he searched majority’s with the contexts statement of “ .1 . . don’t so because did the law. me in a car without up behind people close I would hold that the presumption of Again, and more down.” patting by objective reasonableness established in- explained that his reason pointedly, danger can dicia of be overcome was not because he knew searching Tharpe officer’s admission an “unreason- Bay, Ala- suspected by the Red Tharpe was (in sense) the fourth amendment able” stan- but be- bama, burglary, a recent police of practice, any fear, rather than dard take him in to the going cause he prompted the search. When indi- station: however, point danger, cia to no testimony you searched Q The reason frightened that he was can- *6 were in the boys these noted, not validate a search. As Judge Gee Hester, it? wasn’t Raymond with car “specific the officer’s fear must be based I No, sir, necessarily. Because A majority put and articulable facts.” As the I had re- that the information knew it, “[Sjubjective whims officers [cannot] Depart- Police Bay Red ceived from justify a frisk.” reason, ment, would one watching. bear watching?

Q bear Would Yes,

A. sir. word,

Q hadn’t received that you But if have them? you

would searched Yes, sir, them

A before I loaded into them

back seat behind me hauled station, sir, yes, pat I

to the down, protection. my course, prudent, procedure

Of surely the horse: puts

but it the cart before burglary difficulty great has been committed on having an unsolved with I confess to say pain I persons searched at will. cannot apparent who have here that lesson unreasonable, utterly burglary past such a rule is but I doubt in the must convicted of been squares keep good company where with Sibron. and avoid localities