UNITED STATES оf America, Plaintiff-Appellant, v. Salvatore CASTELLANA, a/k/a Sam Castellana, Defendant-Appellee.
No. 73-2259.
United States Court of Appeals, Fifth Circuit.
Sept. 6, 1974.
325
Henry Gonzalez, Thomas J. Hanlon, Tampa, Fla., for defendant-appellee.
Before BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges, and INGRAHAM,* Senior Circuit Judge.
GEE, Circuit Judge:
The United States appeals from suppression1 of two answers and four pistols as evidence in Castellana‘s trial for possessing, as a convicted felon, firearms transported in interstate commerce.
* Judge Ingraham sat as a member of the original panel in this case and thus was a member of the en banc court.
As Castellana halted about four feet from his desk and Smith prepared to read the warrant, Arwine suddenly asked Castellana whether he had any weаpons within reach. Castellana replied that he did, pointing to a drawer in the desk. Arwine took four handguns from the drawer, one of which occasioned Castellana‘s present indictment,2 and asked Castellana where he got them.
Castellana answered that he took them in on a loan. Smith then read the warrant and advised Castellana of his Miranda rights, which hе refused to waive. The four handguns were unloaded and placed on the desk and the search of defendant and the store carried out.3 At no time was anyone arrested.
Assuming Castellana was “in custody” under inherently coercive conditions when Arwine asked his questions, Miranda was not infringed, for Arwine was not interrogating Castellana in an attempt to еlicit evidence of a crime.3 The safety of the operation was Arwine‘s primary concern, he testified, and the very form of his first inquiry—weapons within reaсh—shows it was limited to this proper concern. No rational investigatory purpose could have prompted such a question about premises which thе agents were already authorized to, intended to, and did search. Nor is there any indication of devious intent by the agents to achieve an investigatory end by means masquerading as security measures; such activities might be made short work of.
Presented instead is a bona fide and minimally offensive security measure in the linе of Terry v. Ohio4 but less intrusive or demeaning than the “stop-and-frisk” procedure on less than probable cause there sanctioned, a mild and distant cousin to the searches incident to lawful arrest approved in Gustafson and Robinson.5 We find ourselves unable to condemn, after the fact and on grounds of some delicacy, such mild proрhylactic measures reasonably calculated to ensure the safety of the officers, the suspect, and others on the scene as well. To bе sure, the court below concluded that the agents did not feel physically threatened by Castellana,6 but in our view the mild measures adopted were justified by а reasonable prudence under the circumstances and did not require an actual fear of imminent harm to validate them.
Our holding, like the familiar “plain-view doctrine,” follows from the obvious principle that evidence discovered by the police in the course of doing what they have a right to do is not subject to suppression.7 Arwine‘s inquiry about the gun‘s source falls outside this rationale, however, and that inquiry, as well as Castellana‘s answer to it, were properly suрpressed.
Affirmed in part, reversed in part.
I dissent. The majority opinion engages in fact-finding at the appellate level and draws an inappropriаte analogy with Terry v. Ohio1 to provide policy support for its views.
The majority reasons that Miranda2 is inapplicable because Agent Arwine did not interrogate Castellana when he inquired whether any weapons were nearby. The question did not constitute interrogation, we are told, because Arwine did not ask it “in an attempt to elicit evidence of a crime.” Assuming that the majority has hit upon а satisfactory definition of interrogation, I cannot agree with its reasoning; it presumes to find as a fact that Arwine asked about the guns for safety reasons. In the first place it is not the function of this court to find facts. Second, the “safety purposes” theory conflicts with the lower court‘s finding that the agents did not feel physically threatened or endangered by Castellana. To say that a question is asked for safety purposes assumes that there is a perceived dаnger present. To justify intrusions on the basis of self-protection when there is no perceived danger is like excusing a killing as self-defense when the killer knew his victim was unarmed, peaceful and harmless. Such reasoning invites police misconduct.
Nor can the majority find comfort in Terry v. Ohio; the analogy will not withstand inspection. First, Terry is a search and seizure case; this case involves a different cоnstitutional amendment and a different type of intrusion, compelled self-incrimination. Second, the Supreme Court specifically limited Terry‘s holding to situations in which а police officer reasonably concludes “that the persons with whom he is dealing may be armed and presently dangerous.” 329 U.S. at 30, 88 S.Ct. at 1884. In this case the lower сourt found there was “no evidence introduced at the hearing on the motions to suppress which indicates any reason to believe that the defendаnt posed any physical threat to the agents’ safety.” The majority did not vacate that finding as clearly erroneous. If the agents believed Castellanа was harmless, I cannot understand what “circumstances” supposedly “validate” Arwine‘s question. Terry‘s holding is predicated on a perceived risk of harm;
For these reasons I must conclude that the majority, without support from the case law3 or the record, has sanctioned an unjustified omission of Miranda‘s safeguards.