United States v. Raymond Adams

America, UNITED STATES tiff-Appellee, Plain Defendant-Appellant.

Raymond ADAMS,

No. 72-1313. Appeals, Circuit. Seventh

Argued Jan. 1973. May 11,

Decided Jr., Bend, Laderer,

Lewis C. South Ind., appellant. Atty., Lee, Fort C. U. S. William McCarthy,

Wayne, Ind., Timothy P. doing something on the bottom of the Bend, Ind., for Atty., S. South Asst. U. the third car. The car after si- appellee. police By time other ren blast. Judge, SWYGERT, Chief Before The three oc- came on the scene. units Judge, and DUFFY, Circuit Senior yellow cupants stepped car. out of Judge. SPRECHER, Circuit approached the he the officer car ob- As shotgun on the served a bolt-action back Judge. SPRECHER, Circuit pulled and one seat with bolt back He further shell locked bolt. ob- appeal the troublesome This raises style lying revolver served Western problem a warrantless the floor on the driver’s side. On Raymond Adams Defendant search. seat, passenger’s front he side ob- possession of a sawed- was convicted appeared pipe registered served what first shotgun off which was protruding from underneath the front 5861(d). in 26 U.S.C. § violation pulled object he out he seat. When this probation placed He was twelve-gauge discovered that awas years. shotgun. sawed-off I. The above were adduced at a facts hearing on the defendant’s motion to a racial riot March while On suppress evidence. Defendant also testi- Washington High progress was in hearing. fied at the He that when Indiana, Bend, em- in School South weapons in the first officer saw the gasoline ployee three of a station about car, got “They’ve guns” said, he and three blocks from the observed “everybody then went . . . draw- yellow approaching auto- black males ing (their weapons) body-slapping appeared to be One of them mobile. carrying people putting hand- car weapon, long shoulder-type on.” The denied de- cuffs district court protruded the barrel of about 12 which suppress. motion fendant’s jacket. inches from underneath his employee, Shortly while thereafter II. delivering customer, an automobile to a argued police Defendant first that the offi- saw officer street turning light cer’s actions on his red told him three males had seen stopping approaching appeared and siren and the car who yellow was an be armed arrest, that there was no automobile. defendant, consequently to arrest About that time a Bend South the search of the defendant and vehicle patrol duty officer on in a marked arrest, was not incident to a valid Washington High car the area around denying that the court erred in the mo- message received a radio to be on School suppress. tion to yellow the lookout for a car three argued subjects it, possibly Defendant “there male armed. is noth- black ing negro carry- responded The driving unlawful about a male to the call given a rifle.” A different situation toward the location message exist, female, however, when a male or 4400 block Western white, carrying a rifle Avenue. he traveled on Av- black within As Western enue, yellow a passed car with three few blocks where a racial disturbance black progress males him. He is in at a school. dis- made a U-turn passengers them. trict court found that there was suffi- followed The two him, turned cient cause for the arrest and around and looked at existing light time “under the conditions he turned on his red of this disturbance the vicin- siren for three time short bursts. ity.” He added: yellow car did not immedi- ately “I think the would be dere- instead the two duty picking something if under all the cir- up bent over lict their resting of the infor- officers as well time there at cumstances existing, they mant. then place, the situation any less.” done had setting place time and gaso- wholly hearing, its va irrelevant suppression search is not At the lidity to “the us to be employee referred lead as defendant would station line Washington happening at lieve. that riot was he High time.” When this at Wheat.) School (9 Appollon, 22 In The gun with defendant observed first 159, 164-165, Mr. 6 L.Ed. 111 high from three blocks about he was commenting upon Story, the ex Justice arresting testified officer school. probable of for the seizure istence cause he that was suppression at vessel, of French a said: Wash- duty in the area around patrol on very justly “It observed at has been had a ington High where “[w]e School bar, the court that is bound at the students with disturbance geo- public take notice of facts and He at time.” school eventually that graphical positions; and that this re- he while arrested part country mote fested, of the has been in- high of blocks was still within smug- periods, at different school. general glers, notoriety is matter of gasoline trial, re- attendant At the Washington at racial riots ferred “the Supreme Court found High whereupon School,” defendant’s for of the warrantless search that comment. moved strike ground counsel primarily that The trial court said: Rapids is 152 miles from about “Grand neigh Detroit and that Detroit and its this Motion “I do not believe along river, borhood the Detroit which granted the situa- because should be boundary, one is the international of existing part of the was tion then introducing the most active centers background Police illegally country spiritous li this into acting, I but should there and quors for distribution into the interior.” too, say you, as the insofar 132, Carroll United 267 U.S. knows, no evidence here Court there is any tying way defendant with in anything this (1925). Recently, the Court said Ad going on around that was 143, 147-148, Williams, ams v. High Washington So all of School. 32 L.Ed.2d purely just coinci- these facts (1972): dential; know, I do that I do investigating properly “While nothing sug- say that there’s want activity person reported of a who was gested here here that ties him in with carrying to be narcotics and a con- Washington going on what was weapon sitting cealed and who was High School, but cannot erase from I high-crime alone in ear in area at it was that the record day.” fact Sgt. morning, Connolly in the 2:15 ample had reason to fear for his safe- arresting trial, Also at the officer ty.” (Emphasis supplied.) duty patrol testified that high vicinity words, school. Another In other we commence validity at the scene of arrest testi- our consideration of vicinity underlying search with the fied “I was Wash- fact that it ington High along many place School took at the time of and within a other had some trouble few blocks we racial disturbance progress high with the students.” disturbance The thresh school. old of trouble or riot at the school was cause was lowered knowledge permeating personal within the ar- this factor. None knowledge.” personal the defendant many relied cases 575, 581 F.2d Squella-Avendano, 447 circumstance. involved a similar cert, 985, 90 (5th Cir.), denied, 404 U.S. Next, with the fact faced we are (1971). 450, L.Ed.2d 369 Coolidge moving v. New automobile. 459-460, 91 Hampshire, S. atmosphere of Given 2034-2035, 29 L.Ed.2d Ct. moving disturbance, vehicle (1971), the said: of an direct observation the informer’s entering ve person previously armed underlying rationale of Carroll “The hicle, the two behavior followed that have all the cases staring patrolling po it1 is that there is lowering themselves then lice officer and necessary difference between a ‘a though to conceal some their seats dwelling store, house search of a undoubtedly thing, was sufficient respect of which other structure stop the to automobile. cause the officer readily proper official warrant a may 1868, 1, Ohio, Terry 88 S.Ct. v. 392 U.S. and a search obtained be (1968). 20 L.Ed.2d 889 wagon boat, ship, or automo- motor goods, it where bile for contraband Lindsey, F.2d 451 States United v. practicable secure a war- is to not cert, denied, (3rd 1971), 701, Cir. 703 can be rant the vehicle because 1270, 995, L.Ed.2d 92 S.Ct. 31 405 U.S. locality quickly or moved out of Appeals at (1972) the of said 463 jurisdiction in the warrant page 703: U.S., sought.’ 153, at must 267 Terry hand, Applying case at (Emphasis sup- at 285]. S.Ct. [45 Brophy’s Marshal reactions we believe plied.) of the defend- behavior unusual Chambers, we [Chambers “As said justified. In the context of ant were 42, Maroney, v. 399 90 S.Ct. U.S. airplane highjacking possible 1975, L.Ed.2d . . . ‘exi- 26 419] may consequences which the enormous gent justify the war- circumstances’ therefrom, view of flow and rantless search of ‘an automobile Brophy limited time in which Marshal highway,’ where there suspicion act, re- of had to level probable cause, is because car is investigative stop Terry quired for a alerted, ‘movable, occupants are protective low- and search should be may and the contents never be car’s despite Therefore, the fact that ered. again found must be ob- if warrant suspi- that the level be said opportunity tained.’ to search ‘[T]he present in the instant case is low- cion fleeting (Emphasis sup- .’ . . sufficiently Terry, it was er than plied.)” high justify Brophy’s Marshal act- ing.” Next, the informant’s facts here were of Massa In Ballou v. Commonwealth “suspicion, not mere based belief or (1st 1968), chusetts, cert, Cir. F.2d 982 Aguilar Texas, conclusion,” 403 v. 378 U.S. 1024, denied, 909, 89 S.Ct. 108, 394 U.S. 114, 1509, 84 12 L.Ed.2d 723 S.Ct. (1969), police re 222 (1964), upon 22 L.Ed.2d nor “a casual rumor circu- gangland

lating information that several ceived underworld an accusa- meeting figures merely gen- armed tion based on an individual’s Although the informer reputation,” Spinelli cafe. eral v. United identity, States, credentials 584, case without 89 393 U.S. Appeals that for 589, upon the Court 27 L.Ed.2d 637 nothing would to have done “direct informer’s observation 1302, 160, States, 93 Husty States, 694, 69 S.Ct. 338 U.S. 51 v. 282 U.S. United (1949) ; Ma (1931) ; v. 240, Chambers L.Ed. v. 1879 Scher 1975, 42, roney, 174, 26 L. 90 S.Ct. 305 59 S.Ct. United U.S. (1970). Brinegar (1938) ; Ed.2d 83 L.Ed. United light po- measures for his own take suitable “in the been reasonable have safety automatically.” followed knowledge the individuals about lice gangland possibility too real the all that the conclude search was We continued The Court violence.” permissible one and that the district F.2d 985: sup properly the motion court denied upon recurring press questions of action decided “The course since “[t]he up tip inves- de follow of the reasonableness of searches” here—to tigate responsive upon to all properly pend the “facts and circumstances —was possessed atmosphere the officers —the total of the case.” information governmental Rabinowitz, interests prevention 56, 63, 66, Fail- detection. L. crime investigated would, use (1950).2 ure have Ed. 544 Terry, [392 words Court’s been ‘have at 1881] III. poor police indeed’.” work defendant raised additional that while conclude We appeal. issues on col of the defendant actions He contended that his statement magnitude league than less were of the officer he owned the sawed-off inform Terry, here addition shotgun, possession which is facts, disturbance er’s subject conviction, of the indictment and more moving were and the suppressed should have been of because bring adequate doctrine to the than Terry give the failure of the to com- officer justify offi play the into to warnings. plete Miranda stop defendant’s automo initial cer’s arresting officer and other undoubtedly also bile. Those facts present officers who were at defendant’s justify defendant a frisk of sufficient to arrest testified at a outside point, companions. At that and his jury’s presence arresting that the offi- shotgun moreover, saw a officer warnings cer read the to defendant be- pistol plain in sawed-off view a questioning fore from card which shotgun partial v. Unit view. Harris wallet, including he carried in his right “the States, 88 S.Ct. ed 390 U.S. right silent, counsel, to remain to 992, (1968); Ker v. 1067 19 L.Ed.2d got they and if haven’t funds to have 23, 42-43, California, 83 U.S. 374 counsel, they that the court will see that (1963). The frisk 1623, 10 L.Ed.2d 726 properly are defended.” The defend- ensued. and automobile search requested ant’s counsel to the card see and it object to him. He did not was shown As Mr. Harlan said his con- Justice Terry 34, to nor curring cross-examine the opinion in at 392 U.S. regard to the of the card nor contents 88 S.Ct. 1886: did offer in evidence. right inter- to “Officer McFadden’s complained Defendant the card that rupt Terry’s freedom movement gov- not in evidence offered only privacy arose be- and invade ernment and that defendant was forc- cause circumstances warranted right advised that he had have an to Terry ef- in an an encounter with attorney present during questioning. prevent investigate a crime. fort justi- Assuming encounter was Once forced card did not right fied, warning however, regarding pres- officer’s include the (defined (1947). shotgun It is clear that contraband as 1399 sawed-off possession item the of which in itself is which formed the basis of the offense crime) may be seized course the instant case is contraband. 26 See legal 5861(d), 5841, 5871; v. search. Harris 49 Cf. United §§ U.S.C. 145, 1098, 781(b)(2). 331 67 S.Ct. 91 L.Ed. § U.S.C. 362 SWYGERT, Judge (dissenting). attorney, warnings, Chief as

ence of an officer, were satis- summarized finding stop probable cause to Ad- factory Lamia, v. under Ohio, 1, Terry 88 ams under 392 U.S. cert, denied, (2d Cir.), 429 F.2d 373 (1968), L.Ed.2d 27 L.Ed.2d majority relies several facts known Cusumano, (1970), arresting before the car ac- cert, (2d Cir.), denied, 429 F.2d tually atmosphere came “the halt: 61, 27 L.Ed.2d 61 moving disturbance, of the school vehi- latter of which cle, . direct ob- . . informer’s said: person previously servation of an armed expect “It unrealistic to same is entering vehicle, be- degree formality respect with staring havior the two question waiver ‘on the street’ as patrolling police officer and then in the station-house.” lowering in their themselves seats Finally, contended though something.” to conceal due With the trial court erred when he my wholly Brothers, deference to I am give refused to an instruction factors, unpersuaded apart or that these statement,3 voluntariness of defendant’s justified combination, gave and instead own court’s at issue. instruction.4 find that We district complied court gas U.S.C. § at It is manifest that the station 3501(a).5 observations, conveyed tendant’s judgment of conviction is police prior arrest, af- him the did firmed. illegal not describe conduct un

Affirmed. der the of Indiana.* laws the State gentlemen jury, 3. “Ladies and be- fendant untary, the time of arrest was vol- you upon fore take into evi- consideration as find- based Court’s allegedly (s) ing, per- dence the statement made to the were Government witnesses police by testify the South Bend de- officers the mitted to as to certain state- you alleged fendant must first find that before ments which the defendant was making (s) (1) following the statement de- to have made or the time that — right fendant was informed lie had a to his arrest. anything jury “However, remain silent and that he for the to deter- against him, (2) credibility weight could be used and de- the to mine be right given respect fendant was informed that he had a such to statement with de- present interview, guilt.” to have counsel at the fendant’s innocence (3) if was informed that any prosecution brought by 5. “In criminal counsel, could afford counsel would by District United States present be furnished him to be in- Columbia, confession, as defined in sub- any terview without cost before inter- (e) hereof, admissible, section be in shall view. voluntarily given. if evidence it is Before present “If no counsel was at the time evidence, such confession is received in alleged (s) by statement was made judge shall, presence trial out defendant, government prove must jury, any detei’mine to volun- issue as your beyond to satisfaction a reasonable judge tariness. If the trial determines intelligently doubt that understandingly the defendant voluntarily the confession was made right waived the to have it shall be admitted evidence present counsel the interview. judge permit jury trial shall to hear making foregoing “In addition to relevant evidence on the issue volun- findings, you before take into considera- jury tariness shall instruct to alleged (s) tion the statement and evidence give weight such to the confession as the you (s) must also find that the statement jury feels it deseiwes under the cir- all voluntary in accordance with the cumstances.” given you, recalling other instructions to * suppress At the on the motion to any statement(s) made outside of attendant testified follows: the Court should be considered tion and cau- with you [police Q: What did offi- tell weighed great care.” cer] ? you Negroes “The Court instructs it has IA: said that I saw three approaching yellow found that the statement made the de- Chevrolet. capacity of did not hold that the or Carroll cited no statute has The Government or the fact that it was mere a vehicle move which makes municipal ordinance doing provided probable cause to of so display rifle a criminal public aof instead, search; factors, were those apparently reason for this It is fense. exigent justify- viewed as circumstances majority on circum relies police where a warrantless search police which known stances proba- independently possessed informant’s communica extrinsic potential of a ble cause search. The tion, particularly the occurrence the failure vehicle for movement excuses in time and near “race riot” warrant, it cannot validate obtain a place Adams. the arrest of stop and search by the circumstances noted of the One lacking. therefor is compan- majority and his is that Adams majority points moving travelling next to “the sus- vehicle. in a ions were picious behavior of the two This, told, has held we are been staring patrolling at the offi- Supreme [in] Court Cham- lowering cer and then Maroney, themselves 90 S.Ct. bers though (1970), their seats as to conceal some- and Carroll L.Ed.2d 419 thing.” activity, however, The latter oc- States, 267 U.S. curred after the officer had turned to authorize light agree. and siren. The fruits of a stop by police. I vehicle cannot original by police provide progeny do not essence of Carroll and its justification search; only those opinion for up in the Chambers is summed facts to the officers beforehand known as follows: assessing may into account in be taken enforcing the Fourth Amend- By token, cause. same prohibition unreasona- ment’s facts come to the attention of an seizures, ble searches engaged stopping a ve- while upon probable cause has insisted original justify hicle cannot decision requirement a reason- minimum for They justify stop. his search of permitted able search the Constitu- the vehicle and the arrest of its occu- general rule, tion. it has also re- As stop- pants as, example, where — magistrate quired judgment being ping officer contraband observes probable-cause and the is- issue thrown from the windows of a car—but suance of a warrant before a search is grounded must his decision Only exigent made. circumstances prior justification. independent judgment will the as to probable the circum- This leaves cause serve as a sufficient “staring patrolling offi- Carroll, stance of at the authorization for a search. response supra, cer.” followed and was This holds a search warrant unnec- by po- essary to the execution of a U-turn where there is cause eventually stop. stopped made the lice car which to search an automobile on Staring police highway; movable, at car that cir- back the car cannot, think, occupants I taken as alerted, cumstance be are and the car’s any again reaction of more than natural never found if contents person. hardly “unusual behav- This is a warrant must be obtained. Hence stop justified a ior” of the sort which an immediate search is constitution- Lindsey, ally frisk in permissible. (3d 1971), where the 451 F.2d 701 Cir. S.Ct. at Okay. Okay. Appeared you a rifle. That to be Q: Q: is what told the police? you police And that is all told officers. Well, gave him the location when A: I A: Yes. you you thought you he asked for it. Q: And saw carrying one a rifle? Bight; appeared A: what to be a rifle. car, defendant, plane, attempting to observed the that Adams was board pertinent all times from by three different himself identified further high names, displayed extreme than was when ob- “indicia of first carrying Finally, was anxiety,” appeared served the informant. to be large pocket. objects the combination of fear with Radecki’s in his coat Massachusetts, admonition of the bulletin F.2d 982 Ballou v. Adams, majori- (1st 1968), reason for or was his Cir. also cited relying solely context; ty, prob- apposite Radecki on bulletin? is not in this only testimony by stop in not the officer that case was able point was: of the eventual founded on observation stopped who Q: you say a lot Wouldn’t there was him. day of confusion out there that when jus- them, finally, you stopped come, to the “race riot” —not when first I guns stop. you tification the instant That is but when saw the crux of this case. What evidence ol ear? a race riot was adduced at the motion to suppress Dean, might say You A: there was a little gas ? station at- any- confusion. didn’t where I see tendant, testified: body was confused. confusion

Q: you us, you was out at the sir, school. Could tell saw anything or noticed unusual Q: knowledge You had no day? people any- these were involved with thing high you? out school, at the did A: Yes. Other than the riot that No; just Washington A: happening High call came out over was the air. time, at this School .... Q: say anything The call didn’t only pertinent

The by other statement was guys being about these out of the Radecki, policeman Officer who Washington High School,did it? He Adams. mentioned that No, it A: did not. there was a “disturbance with the stu- Washington High nearby dents” at nothing else, ambiguity Given sum, School. In the record establishes a testimony this must be resolved favor or “disturbance” “riot” void racial of Adams. Only overtones. at the trial was ra- majority, believe, proceeds I on cial character of the riot hinted at. assumption the mistaken the de proof fendant bore disturbance, the burden This reference to a stand- suppression hearing. riot alone, bearing issue at probative has no At a on a suppress, the issue motion to stop. cause to questions defendant-movant necessarily Other bears arise. burden Did coming knowledge give forward with his evidence that the disturbance pursuant good was Officer Radecki warrant reason to believe or vicinity warrant issued pro- that armed men in the property ceeding might constitutionally proceed defec violently tive. Once he has school to shown a warrantless intercede tur- search, mag- moil? The Government must record is shoulder silent on proving legality the burden of nitude or character disturbance. Coolidge important, Hamp officer, More search. did the v. New if he shire, 443, 455, had 91 reasonable fear of armed interven- tion, (1971); companions 29 connect L.Ed.2d 564 Adams States v. United Jeffers, with that 342 fear? U.S. 96 Radecki 72 never testi- (1951); effect, L.Ed. fied 59 McDonald v. and the United record would 451, appears contradict him if he had. It U.S. (1948); proceeding away that Adams was United States v. from Gamble, (7th Cir., 1973); 473 F.2d school at the time Radecki first Wrightson States, 95 v. United (1956);

App.D.C. 390, F.2d 8A

Moore’s Federal Practice (1972). Why this is so was f[ made evi- 41.08 ^[4] far

dent as back as McDonald: heady history thing;

Power is a acting that the their

shows so

own cannot trusted. And magistrate requires Constitution

pass on the desires of the be- they privacy

fore violate

home. to that cannot be true con- We requirement

stitutional and excuse the

absence showing without a of a search warrant exemption by those seek who the constitutional mandate that

from exigencies the situation made imperative. that course 456, (Emphasis at 193. add-

ed.) failed dem-

Since Government any legal justification

onstrate Adams,

the subsequent driven of the vehicle un-

lawful. my judgment, judge erred trial denying suppress. Adams’ motion to

I would therefore reverse conviction. America,

UNITED STATES of Plaintiff-Appellee,

Kimberly BINGHAM, Stiles Defendant- Appellant.

No. 72-2688. Appeals, Court of Ninth Circuit.

May 7, 1973. Aug.

As Amended

Case Details

Case Name: United States v. Raymond Adams

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 11, 1973

Citation: 484 F.2d 357

Docket Number: 72-1313

Court Abbreviation: 7th Cir.