UNITED STATES оf America, Plaintiff-Appellant, v. Robert Lee BOOKER et al., Defendants-Appellees.
No. 71-2024.
United States Court of Appeals, Sixth Circuit.
May 31, 1972.
461 F.2d 990
Bruce W. Neckers, Grand Rapids, Mich. (Court appointed), for defendants-appellees.
Before WEICK and McCREE, Circuit Judges, and FEIKENS,* District Judge.
WEICK, Circuit Judge.
The United States has appealed under
At 4:20 a. m. on July 1, 1971, a Ford station wagon, in which three men, the defendants in this case, were riding, was being operated northerly on U. S. Highway 31, in the State of Michigan, at a speed of from 80 to 85 miles an hour, in a 55-mile zone. Deputy Sheriff Slotman of Ottawa County, was alone in his cruiser, patrolling the highway. When he observed the station wagon, he started to follow it, clocking its sрeed; he then flashed his lights for the wagon to stop. The wagon veered, and seemed to be out of control, but it pulled over to thе side of the road, and stopped, and the Deputy stopped his cruiser behind the wagon.
The Deputy radioed the license number оf the car to his headquarters. Logan, the driver of the wagon, got out and walked toward the cruiser. Slotman asked for his driver‘s license, аnd Logan produced a traffic ticket from Illinois which apparently authorized the car owner to drive his car until his case was heard and until his license was returned to him. Slotman advised Logan that he was stopping him for speeding.
As Slotman walked along beside the statiоn wagon he shined his flashlight in the back of the wagon and saw in plain view six inches of the barrel of a rifle protruding from beneath a mat in the rеar of the wagon. He asked Logan who owned the rifle. One of the passengers in the wagon got out from the other side and said, “The riflе does not work anyway.” Slotman asked to see the rifle; the passenger reached in the wagon to get it and Slotman took the riflе from him. As Slotman walked back to his cruiser he slid back the action on the rifle and found a round of ammunition in its chamber. Slotman then radioеd for a back up car. He had noticed that the rear license plate on the wagon was attached by wire.
Three police officers arrived, and the three men in the wagon were advised “of the law concerning uncased loaded weapons in the car“, and the officers proceeded to search the wagon. The three men stood outside the wagon watching while thе search was conducted. The officers found a sawed-off 12-gauge shotgun under the driver‘s seat, which was loaded with two rounds in the chambеr. The search was continued and the officers found a .22 caliber sawed-off rifle under the mat in the rear of the wagon, with a round of ammunition in the chamber. In the glove compartment there were two more rounds of ammunition for the 12-gauge shotgun.
The District Court was of the view that probable cause did not exist to justify the warrantless sеarch of the station wagon. We disagree. Flashing the flashlight in the rear of the car did not constitute a search of the car. United States v. Kim, 430 F.2d 58, 61 (9th Cir. 1970), and cases therein cited. Six inches of the rifle barrel was in plain view and was subject to seizure. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Since it would not constitute а search for the officer to observe objects in plain view in the automobile in daylight, it ought not to constitute a search for him to flash a light in the car as he was walking past it in the night season. In any event, if it was a search, it was reasonable under the circumstancеs. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Violation of the Michigan Conservation Law,
The officers could not very well obtain a search warrant at 4:20 o‘clock in the morning. If, as claimed by the defendants, probable cause did not еxist, the Magistrate would have no authority to issue a warrant. The fact that the three men who occupied the station wagon were standing outside the wagon while the search was conducted, did not indicate that the officers were out of danger, nor that any one of the three men was prevented from reaching into the wagon for a concealed loaded weapon and using it effеctively. United States v. Castle, (4th Cir., No. 71-1899, decided Dec. 20, 1971).
In our opinion, considering all of the surrounding facts and circumstances, there was рrobable cause for the arrest and search, and it was not unreasonable. United States v. Garner, 451 F.2d 167 (6th Cir. 1971); United States v. Barnett, 407 F.2d 1114 (6th Cir. 1969), cert. denied, 395 U.S. 907, 89 S.Ct. 1748, 23 L.Ed.2d 219.
We are also of the view that the search was incident to a lawful arrest. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The search had to be made at the time and place of the arrest in order to be reasonable. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).
We conclude that the District Court erred in suppressing the weapons. The judgment of the District Court is therefore reversed and the cause is remanded with instructions to deny the motion to supprеss.
McCREE, Circuit Judge (concurring).
I concur in the result reached by the court, but I disagree with the determination that flashing the light into the rear of the automobile did not constitute a search. A person seated in a darkened automobile at night has a right to rely upon the privacy afforded by those circumstances.
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the pub-
Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). However, under all the circumstances of this case, I regard the limited invasion of appellants’ privacy by the illumination of the automobile‘s interior as reasonable. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), in which the Supreme Court stated that:
. . . in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment оf the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? [Citations omitted.]