*1 America, STATES UNITED Plaintiff-Appellee, PEARSON,
Upton and Edward John Jr. Defendants-Appellants. son, Jr., America, UNITED STATES Plaintiff-Appellee, JOHNSON, Jr., Defendant- Edward Appellant.
Nos. Appeals, United States Court of Fifth Circuit. Sept. Rehearing Rehearing En Banc Denied Nov. *2 Jr., Jackson, Banks,
Fred L. Miss. Pearson, (Court-appointed), Upton Jr. Moore, Jackson, (Court- W. Miss. S.
appointed), Johnson, for Edward Jr. Hauberg, Atty., E. Robert E. U. S. Strange, Lynn, Donald Daniel E. Asst. Miss., Attys., Jackson, U. S. for the United States. RIVES, Before THORNBERRY
CLARK, Judges. Circuit
RIVES, Judge: Circuit
In No. Pearson and Johnson jointly indicted convicted transporting in interstate commerce a knowing motor vehicle that it had. been stolen in violation 18 U.S.C. In No. Johnson alone was indicted 922(g) and convicted under 18 U.S.C. § transporting firearms inter- state after he been con- commerce felony.1 victed of a separate result One of the two trials presented is that this Court is with some- per- what different versions of the facts taining alleged illegal to an search and seizure, being each version entitled to the weight legal presumptions. same version, appointed Under either able cogent analysis counsel careful ar- gument urge that the search and seizure legal. were not discuss the therefore However, evidence much detail. we ultimately reach the conclusion that the entirety of the facts and circumstances usually 1. Pearson and will Johnson referred as the defendants. bag military type rifles duffel seizure and justified search and hacksaw, crowbar, order, subject containing hammer, to defend- is in affirmance judgment v. or for and screw con- n. o. driver. motions for Government ants’ “burglary tends that these items were a new trial. Defendants contend that neither tools.” motions, the evi- we hold those On *3 plain in the tools nor the rifles were (confined, of the Govern- because dence justification view and that was no there privilege, executive ment’s claim of to search for them. week) occurring in same six all trials prima witnesses, Johnson, Three Pearson is insufficient and establish facie Davis, systematic mis- Officer testified at the motions the defendants’ claim hearing. testified his Davis that he and use Government’s Negroes partner burglary detail, from were on a there so as exclude having burglaries juries. recent in the been two presumably area. Johnson’s car had guilt is In each the evidence of case stopped intersection, at an and Davis men were more than substantial. Both pulled away first noticed when it with in found a which had been stolen vehicle squealing lights the tires and off. pre- in another state than 48 hours less by police lights flashing use of and viously, suspicious and rifles and two pulled over, a siren the car and Johnson in An were found the vehicle. got and Officer out of re Davis agent of the Federal Bureau of Investi- spective cars. Johnson his exhibited gation inculpatory testified state- license, license, driver’s a Louisiana and ments each defendant made to In him. Officer Davis noted that had vehicle separate Johnson’s trial in- there was tag. a Louisiana Davis said he informed prior felony troduced a record of his con- charging Johnson that was him with he viction in a federal court. ,”2 making “improper an did but start writing not start out a because ticket Suppress. I. The Motions Johnson asked him had and directions suppress The defendants moved to responding. he was rifles found in the vehicle and ve- and had been After Davis Johnson hicle identification number taken from minutes, talking for some two Officer post the driver-side door after the ve- right-hand gone King, had to the impounded. hearing joint hicle was A vehicle, a shouted of the civilian side suppress, was held on the motions to and guns warning were there the motions were denied. exactly what car. Davis did not know Background. time, A. Factual he King prior done to this had light King into flashed a recall that approximately July At 3:00 A.M. on warning was the vehicle. When Jackson, Mississippi, police two shouted, pistol and his drew Davis officers, Jimmy L. Davis Edwin S. stepped from Johnson. back King, stopped a 1960 Chevrolet. Johnson driver; substantially testimony was the Pearson and another Johnson’s man, Martin, passengers. Jason S. not tes- that of Davis. He could matched done, On the rear King tify floorboard two were found as to what Officer n 8229-01, Davis testified that Johnson even- reads Pertinent also is tually charged making “improper part: with an * * * start,” city Every upon “(a) a a ordinance This vehicle violation. during ordinance, highway record reflects no pointed within this State but we are following period and at to sunrise from sunset section of Mississippi suf- Code when there of 1942: other time “ * * * person clearly light § 8191: discern- No shall to render ficient stopped, any person highway start a vehicle which is at a stand- ible ing, parked feet unless and until such five hundred distance lighted equipped movement can be made with reasonable ahead shall ** safety.” lamps front and rear investiga- said that the rifles were on session of tools and but he under a tion.” rear floorboard blanket. King’s light suppress shed on Officer motions were denied by provided following He the district court in lan-
actions was Pearson. guage in the rear : testified that he was seat ap- King front.3 that Martin was firearms these “It seems to me proached the car and asked for identifi- sufficiently open to have in the cation. Pearson handed him his identifi- without the Officer observed cation. He Martin remained in one I understood a search warrant King car. asked Pearson where he work- bag, say this defendants ed, responded, Pearson and Martin was bag, it a naval call I believe tool King then asked for his identification. bag up of the offi- for one held tool light then flashed a car saw into the hammer, hacksaw, cers who saw *4 bag. bag the duffel He asked what the etc., and a crowbar screw driver and contained, and Martin showed him. The burglary to be there which said rifles were under a rear blanket on the my testimony sat- shows to tools. The floorboard, bag and the duffel on was people law- that these isfaction top of the blanket. search fully believe the and I arrested time made search uncertain as was a was was made Pearson that rifles, may King when sequence saw the have when of whatever incident opened (or opened again is a car door was who I think this discovered but the it), occupants told the question and when called that the should be get know upon pass upon to out of the car. He did not in connection with to King guilt But when or if lifted the blanket. or innocence because King testify illegally that what was of course he asked if seized evidence thirty blanket, under and be the that it couldn’t some it be available wouldn’t King elapsed used, mo- seconds after saw the I I’ll the so believe overrule anything happened. Pearson, Jr., Upton before else and the two tion of Johnson, sup- Jr. motions Edward only The man who could authori- have press.” [R. 46-47.] tatively King testified as to what Officer King did or did not him- see and do was In order to determine whether self, though and the record indicates by the reversible error was committed present hearing he was at the he was ruling suppress, a must on motion to we upon testify. called only look at introduced the evidence hearing the also at the motion but Prior to the arrests offi- Police the brought the evidence forth on the trial. knowledge cers had no the vehicle may Evidence adduced trial at be consid felony was stolen or that Johnson had a though ered even the evidence on the mo record. There is no documentation suppress jus tion to was insufficient charges appellants by were booked on tify States, the search. Carroll United city police. indication, There is some 132, 162, apparently by and it was all assumed L.Ed. Rent v. United 5 Cir. possessing burglary firearms 209 F.2d tools. The most statement informative concerned, appellants trial, Dyer In stood accused the first the one for the by violation, was made Act Officer Davis said that there no further was charged differing concerning Johnson was with traffic vio- evidence ar- charge King “posses- testify, lation and that rests. Officer was did not but tools, sion them, pos- is not for both of the Government faulted separate 3. This differs from trial Officer Davis’ testi- the firearms offense. mony hearing placed on the motion Both from officers two men King’s testimony position. Officer reverse on Johnson’s King’s testimony being involuntary. particularly Johnson admitted was this. driving car to New the rifles. Reference Jackson from as to relevant avoided, sought transporting since He Orleans and was to be rifles rifles. stealing car, said did not admit was not accused Pearson defendant got barely anything he a man having do them. it from he knew produce must could not Pear- propriety of the and arrests witness. search as driving the hear- son at admitted the car for a short stand fall the evidence way trip knowledge suppress. on the motions to was stolen. trial, for inter- In second the one transportation of a firearm state Authority to B. Burden of Proof — Johnson, felon, Of- concerned Stop Vehicle and Arrest King finally witness. ficer was called as a Defendants. defense, the Gov- He called was calling having rested without ernment Supreme re Court has King approached him. testified that he cently emphasized the disfavor attached right-hand asked car on the side and Coolidge v. to warrantless searches. In (who said he rear seat the man Hampshire, New Martin) identification. was 29 L.Ed.2d through man identification handed his Court stated: checking window, King most basic constitutional “[T]he *5 flashlight rifle butts with his he saw the rule in this area is that con- ‘searches sticking He under out from the blanket. judicial process, ducted outside the occupants get out of the then the to asked prior approval by judge or without car, bag un- did not and he see the duffel magistrate, per are se unreasonable til did so. Fourth under the Amendment —sub- men arrest- ject The three in the car were specifically to a few estab- impounded. car next ed and the was exceptions.’ lished and well-delineated Investiga- morning, Federal Bureau of exceptions ‘jealously and care- Edgar Agent drawn,’ tion L. the fully Martin entered and ‘a there must case. He testified that Nation- showing by from the exemption those who seek * * * Center, type exigencies Information al a Crime the the through clearing house stolen impera- which made that course situation property reported identified, is he and tive.’ burden is seek- on those ‘[T]he ing exemption had been informed the vehicle was stolen. the to show the need ” police He to (Footnotes went ve- omitted.) lot to check the it.’ positively hicle identification number to There no search warrant in was these car, identify the and not said had he cases, establishing the and the burden of any city police talked to officers about reasonableness the search there- arresting nor seen case officers’ fore Government.6 It had report prior inspecting to the vehicle.4 establishing burden of the arrests checking number, Agent probable After were made with cause. Since interrogated officers, Martin Johnson and Pear- the arrests were made State They provided son. Miranda we must look State law to determine warnings5 objection Re, authority. and there was no United States Di to the introduction of their as statements sign waiver, form, 4. How the National Crime Information but read Agent it, expressed Center or Martin knew a what car stated he understood and report anyway. willingness had been recovered so that could talk a be made that this vehicle was stolen Jeffers, 1951, 6. United States explained. 96 L.Ed. Williams signed rights 5. Pearson a waiver of form. United Cir. 382 E.2d 48. Agent Martin testified Johnson 2470, Mississippi lights.9 holdings Terry L.Ed. 210. Section Under the (amended, shining Sibron, Code of 355, ch. Laws we think that authority making gives flashlight automobile,10 1) law officer into the person inquiry arrest as to the duffel without warrant the contents of bag, lifting in his commits presence. indictable offense the blanket which cov-
ered the rifles did not exceed the limits
investigation
proper
of a reasonable and
Defendants contend that the of when all of the facts and circumstances
authority
stop
ve
ficers had no
are considered.
for the traffic
Their
hicle
violation.
giv
argument is that the state statute
Basis
Arrests:
C.
State
ing
authority to
traffic
them
enforce
Criminal Statutes.
“highways”
term
violations uses the
There are two
offenses
State
“city
made on
not cover arrests
does
might
justify
posses-
the arrests —the
Further,
Mississippi
since
streets.”
burglary
possession
sion of
tools
judicial
city
do not
notice of
courts
take
of the rifles.
ordinances,7 and no
of
ordinance was
evidence,
city
fered in
can
ordinance
Burglary
Possession
Tools.
justify
think
not
argument
the arrests. We
Mississippi
prohibiting
statute
does
has merit.
law
no
State
possession
speaks
highways
not draw a distinction between
types
“designed
two
of tools—those
city streets,
city
and the
officers
burglary”
aid in the
commission
authority
persons
had
to arrest
violat
“peculiarly adapted
those
to aid
jur
state traffic
within their
laws
11 Where,
burglary.”
commission of
isdiction.8
here,
suscepti-
the tools are common and
legitimate use,12
ble of
is doubtful
think
that the officers
also
possession
authority
stop
whether
is sufficient
in
alone
the vehicle for
vestigation
establish the commission of a crime.
presence
because of
*6
Mississippi
burglaries
The
recently
courts have read into the
been
area
committed,
had
where
night
requirement
statute the
indica-
of some
the time of
—about
tires,
possessor
tion that the
A.M.,
squealing of
intended to com-
3:00
driving
mit a
crime.13
head-
for some distance without
jail
year.
carry-
exceeding
City
Louisville, 1932,
one
7. Bohannan v.
of
164
ing
person,
City
97,
44;
concealed about one’s
or in
Miss.
144
McDaniel v.
So.
tools,
baggage,
implements,
Grenada, 1965,
16,
in-
one’s
or
of
252
172 So.2d
Miss.
peculiarly adapted
aid in
struments
223.
burglary,
larceny
of
or
commission
8137(a)
8150,
of 1942.
§§
Miss.Code
robbery,
prima
shall be
facie evidence of
Terry
Ohio, 1968,
1,
purpose.”
9. See
v.
392 U.S.
88
intention to use them for such
1868,
889;
S.Ct.
L.Ed.2d
v.
20
Sibron
crowbar,
hammer,
12. The
were
tools
1968,
York,
40,
New
392 U.S.
88 S.Ct.
screw driver and hacksaw.
1889,
crowbars, hammers, bolt-cutter, juke telephones. a pay and a boxes and wire-apparatus burglar described as a jumper prior alarm seen on rear the floor- statutes listed a number ; State, 1964, weapons, including pistols board Corn 250 Miss. and “other 157, possession deadly descrip- weapon[s] 164 So.2d of several of like kind or including sledge indicating a hammer to which found tion.” We have no case welded, a phrase interpreted chisel and defendants that include player (brand sold a record new in and rifles. striking Negroes challenge system emptory in Government’s as we know any Alabama, one case. it.” In Swain 202,15 85 S.Ct. Continuing, however, the said Court said: 13 L.Ed.2d the Court systematic that a claim of exclusion of “ * * * Negroes serving petit juries hold that the We cannot from on Negroes striking particular peremptory in a the State’s use of its chal- lenges protection equal a denial of “raises a it case is different issue and impar- may quest require for an the laws. In the well a different answer.” Negro jury, qualified tial 380 U.S. at at Catholic, white, Protestant and are agree that this a “We claim raises challenged subject being alike with- may require different and it issue well subject prose- out cause. To the a different answer. have decided challenge any particular in case cutor’s permissible it that is to insulate from and traditional stand- the demands Negroes inquiry the removal of from Equal ards of the Protection Clause jury particular assumption change in the entail a radical would acting prosecutor accept- that the is challenge. operation of the nature able considerations related the case challenge, pro tanto, no would trying, particular he is the defendant every longer peremptory, each and be particular involved and the charged. crime examination, challenge being open to prosecutor in But when the challenge either at the time the county, case, in case after whatever hearing prose- at a afterwards. The circumstances, the whatever the crime judgment underlying cutor’s each chal- and whoever the defendant scrutiny lenge subject would be may be, responsible victim is for the sincerity. for reasonableness and And Negroes removal of who have been great many challenge a' uses of the jurors by jury qualified selected as would be banned. commissioners and who have survived challenges light purpose cause, “In of the result system Negroes peremptory function no ever serve on society juries, pluralistic serves in in con- the Fourteenth Amendment jury significance. nection with the trial, claim takes on added institution Cf. Hopkins, we cannot hold Yick that the Consti- Wo v. requires
tution
an examination of
In these
30 L.Ed.
giving
prosecutor’s
circumstances,
reasons for the exercise
even the widest
challenges
given
leeway
operation
of his
in
case.
of irrational
presumption
any particular
suspicions
and an-
trial-related
tagonisms,
prosecutor
appear
must
ease
would
using
challenge
purposes
State’s
obtain
being
try
perverted.
impartial jury
has
a fair and
If the
State
single Negro
presump-
case
not seen fit to leave a
before
court. The
case,
prose-
tion
a criminal
is not overcome
subjected
presumption protecting
prosecutor
cutor therefore
to examina-
may
proof
by allegations
tion
at
well be overcome. Such
the case
Negroes
might support
inference
from
a reasonable
hand all
removed
*8
juries
Negroes
jury
they
that
are excluded from
the
or that
removed
were
they
Negroes. Any
wholly
the
unrelated to
oth-
for reasons
because
were
particular
result,
think,
on trial
outcome of the
case
er
establish
we
would
system
wholly
peremptory
per-
is be-
and that the
rule
at odds with the
Swain,
Williams,
equal protec-
in
15.
16. Followed
United
While
involved the
States
See also Davis
tion
5
able
clear the mat-
of
show
often,
Department
ter with the
how
Justice
under what circum-
yesterday
prosecutor
which
did late
stances the
I
afternoon
alone has been
reported
responsible
striking
Negroes
that
to the Court. The
for
those
Department
appeared
does not
who have
desire for me
panels
Talladega
questioned
County.
take the
in
stand to be
as to
The rec-
my thought processes
why
absolutely
ord is
as to
silent
those
we
as to
challenges
preemptory
prosecution
exercised
par-
instances in which the
[sic]
cases,
ticipated
striking
in
Negroes,
this case and
except
in
other
how-
ever,
did
prosecutor
the indication
advise me to make a
Negroes
pre-
statement
struck the
fact
am
in
which I
case and
except
pared
to do to the
those
best
the notes
occasions when the
keep
I did
defendant
and make
himself
have
indicated that he
[sic]
Negroes
Beginning Monday,
did
jury.
them available.
want
January 5th,
Apparently
cases,
prose-
in
there
six cases
some
* * *
agreed
[Supp.
cution
tried in this
court.
the defense
re-
Negroes.
R.,
evidence,
move
18 and
There is no
19.]
“
however,
prosecution
of what
* *
*, might
I
make one more
or did not do on its own account
in
might simplify things
statement
any cases other than the one at bar.”
any
for counsel
there.
I don’t recall
at
particular
prior
S.Ct. at 838.
case
to last week as
many
to how
whites or coloreds that
ruling
Swain,
Mindful of the
in
challenged
preemptorily
sought
[sic]
gen-
defendants
to establish the
government
or
other
side
practice
prosecutor.
eral
of the
”
* * *
32.)
(Supp.R.,
hearing
A
held;
was
the defendants
sought
prosecuting
attorney
to call the
The Court
in Swain saw no reason
testify.
personally willing,
He
“why
attacking
prose-
the defendant
thought
necessary
but
permis-
systematic
to seek
cutor’s
use of
Department
sion from the
against Negroes
of Justice un-
required
should not be
clearly
views,
It
indicated
sponse
its
we
to a demand of a court or other
note Mr.
produce any
Justice
authority,
Harlan’s
brief concur-
con-
material
rence :
Department
tained
the files of the
opinion
joining
Court,
“In
any
of the
re-
Justice
disclose
information
appropriate
my
emphasize
I deem
lating
to material contained
the files
understanding
reserves,
Department
the Court
of Justice or disclose
decide,
question
does
produce
information or
material ac-
opinion
in Part
III of
quired
part
performance
it finds not
as a
presented by the
record
this case.”
his
his official duties
because of
prior
ap-
U.S. at
practice quite and is available for Negroes whites; three and three questioning (Empha- on this matter.” (b) Negroes white defendant —three added.) sis jury; served on trial Negro emphasize (c) Negroes it is “con defendants —five prosecutor panel; duct” on challenged which the should on Government questioning. Negroes be for available five Court and one white wom- prosecutor an; did not indicate that the could questioned thought processe be to his as Negro (d) Negroes defendant—seven s.19 That would be inconsistent with panel; challenged on Government peremptory challenge system. It Negroes five an; white wom- one might requiring prosecutor also be testify as to whether he had com (e) Negroes white defendant —five mitted a crime.20 panel; challenged Government six whites; ruling that the
We conclude Department (f) Negro Justice did not im defendant—number of Ne- properly deny oppor groes defendants an panel all unknown but tunity to meet their challenged by burden under Government. expressed by rationale Chief Justice Vin (c) (d) The trials listed as above 1953, Reynolds, son in United States v. appeal. are the trials involved in this 1, 12, 73 S.Ct. 97 The white excused in woman these trials L.Ed. 727: degree held a law from another state. “ * * * since the during Government single jury She not sit on a prosecutes which an accused has also the week. duty justice done, to see that A to be reasonable conclusion drawn is unconscionable to allow to under- permitted is that Ne- Government prosecution take and then invoke groes to remain on the when the de- governmental privileges deprive white, challenged fendant as anything might accused of be many Negroes possible (with as the ex- 21 material to his defense.” challenge ception of one used for the prosecutor’s lawyer) retained notes cov- the defend- white woman when during ered the trials the week that ant This evidence is consis- was black. Johnson and Pearson were tried. The tent with defendants’ contention that following synopsis challenges imper- is a of his statement Government’s Wigmore speaks summoning jurors, 19. Professor of an “Ala- tion excludes or testimony any bama Doctrine” to summon citizen such or fails cause, one’s own intention or other state of mind shall be fined not more than upon “sup- $5,000.” should be forbidden ns based posed principles” 18 U.S.C. gen- which have been States, 1957, 21. See also United erally Jencks v. repudiated. Wigmore VII on Evi- 1007, 1 D.Ed.2d 77 dence, 3rd ed. §§ 1966. Maryland, Brady 1103; jurors 243. Exclusion “§ on account 215; 10 L.Ed.2d U.S. race or color Andolschek, Cir. United States possessing qual- “No citizen all other Coplon, 142 F.2d United States v. may pre- ifications which are or Wigmore ; F.2d 629 Cir. disqualified scribed law shall be Rev.) (McNaughton §§ on Evidence grand juror service as court of the United or of race, color, State on account of allow the Government was In each case previous servitude; condition of and the de six ed whoever, being per- an ten. officer or other allowed defendants were fendant or charged any duty 24(b), son in the selec- Fed.B.Crim.P. See Rule
1217
fair-
missibly
which violates civilized notions of
do not read Swcdn
used. We
thereby
meaning
ness and
taints the entire crim-
Gov-
that the attack
challenges
process”
fail
must
minal
should not be tolerated.
its
use of
ernment’s
Clark, 1968,
U.S.App.D.C.
exercised Levin v.
impermissible
133
use is
if the
(com- 6,
1209,
Systematic im-
1211.
percent
the time
F.2d
of
408
one hundred
striking
juries may,
824,
proper
206,
no less
13 L.Ed.
pare 380 U.S.
85 S.Ct.
misconduct,
prosecutorial
759).
than other
2d
process.
taint the criminal
given ad-
for defendants were
Counsel
fur-
to ascertain whether
ditional time
supra,
Swain,
In
evidence
produced. At the
evidence could be
ther
There,
years.
went back for some fifteen
conceded, and
time the
same
Government
however,
defendants’ fatal omission
indicated,
no rec-
court
that
the district
failing
responsibility
fasten
kept
use
ords were
Government’s
upon the
Here that omis
Government.
obtaining
ad-
its
supplied,
sion has been
and it
reason
can
difficult.
would be
ditional evidence
ably
argued
be
should be
the courts
prose-
has condemned
line of cases
A
holding
liberal
that defendants have
relating to the use
misconduct
cutorial
systematic
established the claim of
ex
suppression
evidence.23 Unfair-
prima
approach
clusion
if Swain’s
facie
recognized even
to the accused was
ness
problem
is to be workable.25
may
by
though
prosecution
the action
proof
burden of
faced
defendants
negligence rather
the result of
have
might require
most difficult.
It
check
Maryland,
Brady v.
bad faith.
than
period
docket for
reasonable
83,
1194,
L.
83 S.Ct.
10
373 U.S.
time for the names of defendants
dis-
There are other cases
215.
Ed.2d
cussing
investigation
attorneys,
as to
problems
evidence
of what
defendants,
final
race of the
various
disclosed to the defense.24 Since
must be
composition
jury
go-
we are
concerned with evidence
manner in
each
exercised
which
side
guilt
innocence,
ing to the
issue
challenges.
can well
may
as-
discussions
of limited
those
present defendants’
understand how the
sistance.
produce additional
unable to
counsel were
years
have
dealing
In the six
evidence.
of cases
concern
passed
Swain,
not found
withholding
since
we have
prosecution’s
evi
with the
single
defendant has
instance in which a
“prosecutorial misconduct
dence is that
j|:
s}s
Mooney
Holohan, 1935,
See,
g.,
&
sfc
ifc
23.
e.
v.
merely
“If
one be-
791;
the decision
L.Ed.
294 U.S.
79
equal
Pyle
tween the constitutional
claim of
Kansas, 1942,
213, 63
317 U.S.
v.
protection
the non-constitutional
214.
5. Ct.
87 L.Ed.
per-
use of the
claim of the unbridled
Ashley
Texas,
v.
5
319
See
Cir.
challenge,
emptory
little
there would be
80;
ex
F.2d
United States
rel. Butler
Marbury
deliberation,
left
since
Maroney,
3
F.2d
Cir.
319
Madison
held
the Constitution
Clark, 1968,
U.S.App.D.C.
Levin v.
Cranch)
“14-
(1
137, 178
6,