William H. KENDRICK, Appellant, v. Louis S. NELSON, Warden, Appellee.
No. 25689
United States Court of Appeals, Ninth Circuit
Aug. 31, 1971
25
A different question is presented as to income from “loan accounts.” Under the agreement in effect during the taxable years here in question, rental income received by the partnership from the corporation in excess of amounts needed to purchase new equipment was not held in the partnership but was credited to the partners in “loan accounts,” maintained by the corporation in the names of the respective partners, upon which the partners could draw at any time. Interest was paid by the corporation upon each of these accounts until drawn down by the partnеr. The loan accounts involved here were maintained in the names of the beneficiaries themselves, not in the name of the trust or the trustee. The accounts were at all times under the control of the beneficiaries, who could, and to some extent did, draw upon them at any time. No one else had power to reach the funds.
The United States contends that, since the funds were available for the use of the corporation until drawn down, they were for all practical purposes under the control of the corporation and thus were not “owned” by the beneficiaries. The District Court agreed and held that all interest paid by the corporation upon the loan accounts was income of the grantor rather than of the trust beneficiaries.
We cannot agree. The sums involved were paid to the beneficiаries as effectively as though they had been deposited to their credit in a bank. That a debt resulted with the funds made available for the use of the debtor can hardly affect the question of ownership of the chose or of the interest paid.
Upon this aspect of the case, judgment is reversed.
Upon the major question of ownership for tax purposes of the trust corpus, the matter is remanded for further proceedings.
Merrill, Circuit Judge, filed concurring opinion.
Evelle J. Younger, Cal. Atty. Gen., Derald E. Granberg, Louise H. Renne, Deputy Attys. Gen., San Francisco, Cal. for appellee.
Before MERRILL and KILKENNY, Circuit Judges, and BELLONI, District Judge.*
KILKENNY, Circuit Judge:
This is an appeal from an order denying аppellant‘s petition for a writ of habeas corpus, in which he challenges the validity of his commitment under a judgment of the superior court of the state of California. He was there sentenced to from six months to ten years imprisonment for violation of
BACKGROUND
The state court record, the only evidence before the district court, discloses that the two arresting officers, in the early morning hours of November 22, 1966, stopped appellant for a minor traffic violatiоn [lack of adequate license plate illumination].1 After stopping the vehicle, the officers noticed an open container of beer in the front seat. The officers were aware of numerous recent burglaries of residential and commercial establishments аnd thefts of motor vehicles in the area. Appellant was the driver of the vehicle. Two male companions were riding with him. One of the officers requested appellant‘s driver‘s license and asked appellant to step to the rear of the automobile to observe the lack of illumination of the license plate. Appellant, when asked for his driver‘s license, replied that he had only a temporary driver‘s license, which he did not produce. When the officer removed the open container of beer from the front of the vehicle, he advised appellant that it was a violation of the California Vehicle Code to have an open alcoholic beverage container in the automobile.2 One of the officers then inquired as to the vehicle ownership and appellant said it was his. When asked for the vehicle registration card, the appellant said it was in the car. At the time, the
The officer, looking for the registration card and for more alcohol, opened the glove compartment and found a loaded clip for a .30 caliber rifle. The appеllant, when asked, said it was a clip for his gun which he had in the trunk. The officer asked appellant if he could see the gun and appellant said, “yes“. The keys were then removed from the ignition switch by the officer, the trunk was opened and in the trunk were found numerous articles, including a rifle, a movie projector and a “Language Art Kit“, which had been stolen from Compton Elementary School some time during the night of November 21st or the early morning of November 22nd. The state court, on the evidence here summarized, denied appellant‘s preliminary motion to suppress the evidence. Later, the appellant waived a jury and agreed to a trial by the court on the 38-page transcript of the preliminary hearing on the motion to suppress. The record contained conclusive testimony indicating that the property found in the trunk of appellant‘s car was stolen. The state court found the appellant guilty of violating
ISSUES
(1) Did the district court err in concluding that the evidence was not the product of an illegal search and seizure, and (2) was appellant denied the effective assistance of counsel?
(1) Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), is somеwhat in point. There, the court found that the officer had a legal right to open the car door. When he opened the door, he noticed the registration certificate. In Harris, the door was lawfully opened in conformity with a regulation which required police to searсh the vehicle thoroughly, to remove all valuables and to attach to the vehicle a property tag listing certain information. Here, the California law required the registration certificate to be in plain sight. Appellant invited the officer to look in the car for the registration certificate. Since it was not found in its usual and customary place, the officer could well assume that it might be in the glove compartment and that the invitation to look extended to that very compartment. It has long been settled that objects falling into the plain view оf an officer who has the right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927).
Appellant was subject to arrest for: (1) failure to properly display the registration certificate; (2) carrying an open container of alcoholic liquor in the automobile, and (3) improper license plate illumination. Under the totality of these circumstances, the officer had probable cause to search for the evidence of the crimes. Beyond question, an officer trained in his duties would have reason to believe that the registration certificate might be found in the glove compartment. Appellant‘s insistence that the certificate was in the automobile no doubt prompted the opening of the glove compartment when the certificate was not found in thе usual and customary places. Under these circumstances, an officer would be remiss in his duties in not taking a look into the readily accessible glove compartment.
When the glove compartment was opened, the cartridge clip was in plain sight. The officer then had рrobable cause to believe that the occupants of the automobile might have a dangerous weapon. This placed the officer in the position envisioned by Justice Black in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), upon which appellant relies. There, the Justice said, “The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, * * *“. Preston, supra, at p. 367, 84 S.Ct. at p. 883. Here, the appellant told the officer that the gun was located in the trunk and invited him to look at it. When thе trunk door was opened, the stolen merchandise was in plain view.
We must also keep in mind that the search of an automobile proceeds on a theory entirely different from that justifying a search actually incident to an arrest. Chambers v. Maroney, 399 U.S. 42, 49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The Supreme Court has long distinguished between the sеarch of an automobile and that of a home or an office. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, supra, p. 48, 90 S.Ct. 1975.
Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or an office. Dyke v. Taylor Implement Manufacturing Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). For constitutional purposes, there is no differеnce between, on the one hand, seizing and holding an automobile before presenting the probable cause issue to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. Chambers v. Maroney, supra, 399 U.S. p. 52, 90 S.Ct. 1975. Clearly, on the record before us, a magistrate would have probable cause for issuance of a search warrant to the officer to search the car for the missing certificate or, for that matter, for further evidence of open liquor containers. On a somewhat comparable record, the Seventh Circuit in United States v. Jackson, 429 F.2d 1368 (7th Cir. 1970), in applying Chambers v. Maroney, supra, held that the officers had a right to search an automobile in order to find “ownership papers“. It was there said, “The search of the car was compelling under the circumstances and was fully justified not only to find any instruments of the indicated crime but also any evidence pertaining to a crime, such as title papers, ownership, use and possession of the car.” P. 1372 (Emphasis added). The fact that the registration certificate, for which the officer was searching, would be “mere evidence” of the crime does not invalidate the search. Warden v. Hayden, 387 U.S. 294, 300-310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Mahler, 442 F.2d 1172 (9th Cir. 1971).
Our own court has been required to alter its views on a related set of facts. In Heffley v. Hocker, 420 F.2d 881 (9th Cir. 1969), the majority held that the search of an automobile was illegal. On certiorari to the United States Supreme Court, sub nom. Hocker v. Heffley, 399 U.S. 521, 90 S.Ct. 2236, 26 L.Ed.2d 780 (1970), the judgmеnt was vacated and the cause remanded for further consideration in the light of Chambers v. Maroney, supra. On remand, this court held that the search and seizure were valid and affirmed the order dismissing the habeas corpus proceeding. Heffley v. Hocker, 429 F.2d 1321 (9th Cir. 1970). In Heffley, as here, the officer asked the driver for his identification and driver‘s licеnse. At that time, the officer noticed a gun under the seat and placed the driver under arrest. At the police station, without a search warrant, the officer searched the entire automobile. During the search, the questioned documents were found on the floor of the car. These documents consisted of two passports, a certificate of registration, and a certificate of ownership. All of the papers, it later developed, had been stolen during a burglary. While Heffley is factually distinguishable from our case, the final conclusion reached by the court indicates that Maroney, if not completely controlling, should be given great weight in our determination.
The recent cases of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) are factually distinguishable and cast little, if any, light on the propriety of the officers’ actions here in question.
Affirmed.
MERRILL, Circuit Judge (concurring):
I concur. I agree that the search and seizure were lawful under all the circumstances of this case, and I think it worthwhile to clarify the majority‘s rationale on this point. The search of the glovе compartment without a warrant was lawful because the officer had probable cause to believe that the glove compartment contained further evidence of violations of the California Vehicle Code, and it was not practical to secure а warrant because the opportunity to search was fleeting. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As I read the majority opinion, it relies on the above rationale and not on the theory that the present record establishes an intelligent consent to search, which must satisfy the standards of Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968), and Cipres v. United States, 343 F.2d 95, 97 (9th Cir. 1965).
UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt Nick LOWE, Jr., Defendant-Appellant.
No. 31157
United States Court of Appeals, Fifth Circuit
June 2, 1971
W. H. F. Wiltshire (court appointed), Harrell, Wiltshire, Bozeman, Clark & Stone, Pensacola, Fla., for appellants.
C. W. Eggart, Jr., Asst. U. S. Atty. (Wm. H. Stafford, Jr., U. S. Atty., on the brief), for appellee.
Before COLEMAN, GOLDBERG, and DYER, Circuit Judges.
PER CURIAM:
Affirmed. See Local Rule 21.1