United States v. Danny Lee Fultz

Sixth Circuit

United States v. Danny Lee Fultz

622 F.2d 204, 1980 U.S. App. LEXIS 17872

CourtCourt of Appeals for the Sixth Circuit

DecidedMay 5, 1980

Docket79-5360

StatusPublished

Cited by3 cases

This text of 622 F.2d 204 (United States v. Danny Lee Fultz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Danny Lee Fultz, 622 F.2d 204, 1980 U.S. App. LEXIS 17872 (6th Cir. 1980).

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[205]*205PER CURIAM.

Defendant appeals from his conviction for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871. The only issues before the court arise from the district court’s denial of a motion to suppress the shotgun as evidence and to return defendant’s truck from which the weapon was seized.

The officers who searched the truck of the defendant had no warrant. They had been called to the scene of a disturbance in rural Claiborne County, Tennessee between midnight and 1:00 a. m. A security guard at a plant where a strike was going on reported that weapons were being fired toward the plant from an area where five or six vehicles were parked some distance from the plant. When officers from the sheriff’s department arrived at the scene, the plant guard told them he had seen muzzle flashes coming from the area, “right in the middle of the strikers.” Though the guard stated at the hearing, on cross-examination, that at least one of the weapons “sounded like a carbine,” he reiterated his previous testimony that he saw “muzzle flashes” and “I knew they were shooting from that end.”

When they arrived in the area from which the guard said the shots had come, the officers were told by one of the group congregated there that there had been no gunfire. The officers searched all the vehicles in the area. Early in the search, a carbine rifle was found under a school bus parked with the strikers’ cars and trucks. The defendant argues that even if there was probable cause to begin a search, it should have been stopped when the carbine was found since no other weapon had been identified. As we have shown, the witness to the shooting told the officers “they” had been firing shots and that he had seen several muzzle flashes. It was reasonable for the officers to continue to search for other weapons after the carbine was found. Discovery of the carbine gave additional reason to seek other weapons since the officers then had reason to believe that the earlier disclaimer was false.

We thus agree with the district court that the officers had probable cause to search the vehicles. (The defendant was not searched or frisked.) We also agree that under the circumstances the search could be lawfully conducted without a warrant. The nearest judicial officer from whom a warrant could be obtained lived approximately 13 miles from the scene of the search. About five police officers were at the scene. If one had been dispatched to get a warrant, it would have been reasonable for the remaining officers to seize and hold the truck of defendant and the other vehicles until the warrant was obtained. The Supreme Court has held that when there is probable cause for search of a vehicle there is no difference for constitutional purposes between seizing and holding a vehicle until a warrant is obtained and, on the other hand, carrying out an immediate search without a warrant. “Either course is reasonable under the Fourth Amendment.” Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).

At oral argument counsel for the defendant stated that the deputy who conducted the search was also involved financially in the company which furnished security guards to the struck plant. He emphasized that the deputy was acting in his official capacity and that the search of defendant’s truck was not a private search. Nevertheless, he urged this court to infer that the deputy acted differently in this case than he would have in the absence of a connection with the struck plant and to hold that he conducted a “general search” that was unreasonable. The district court heard the evidence which related the tie between the deputy and the struck plant. There was probable cause to conduct a search and the district court found no unreasonable extension of the search. This determination was not erroneous.

We find no merit in the remaining contentions of the appellant.

The judgment of the district court is affirmed.

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[205]*205PER CURIAM.

Defendant appeals from his conviction for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871. The only issues before the court arise from the district court’s denial of a motion to suppress the shotgun as evidence and to return defendant’s truck from which the weapon was seized.

The officers who searched the truck of the defendant had no warrant. They had been called to the scene of a disturbance in rural Claiborne County, Tennessee between midnight and 1:00 a. m. A security guard at a plant where a strike was going on reported that weapons were being fired toward the plant from an area where five or six vehicles were parked some distance from the plant. When officers from the sheriff’s department arrived at the scene, the plant guard told them he had seen muzzle flashes coming from the area, “right in the middle of the strikers.” Though the guard stated at the hearing, on cross-examination, that at least one of the weapons “sounded like a carbine,” he reiterated his previous testimony that he saw “muzzle flashes” and “I knew they were shooting from that end.”

When they arrived in the area from which the guard said the shots had come, the officers were told by one of the group congregated there that there had been no gunfire. The officers searched all the vehicles in the area. Early in the search, a carbine rifle was found under a school bus parked with the strikers’ cars and trucks. The defendant argues that even if there was probable cause to begin a search, it should have been stopped when the carbine was found since no other weapon had been identified. As we have shown, the witness to the shooting told the officers “they” had been firing shots and that he had seen several muzzle flashes. It was reasonable for the officers to continue to search for other weapons after the carbine was found. Discovery of the carbine gave additional reason to seek other weapons since the officers then had reason to believe that the earlier disclaimer was false.

We thus agree with the district court that the officers had probable cause to search the vehicles. (The defendant was not searched or frisked.) We also agree that under the circumstances the search could be lawfully conducted without a warrant. The nearest judicial officer from whom a warrant could be obtained lived approximately 13 miles from the scene of the search. About five police officers were at the scene. If one had been dispatched to get a warrant, it would have been reasonable for the remaining officers to seize and hold the truck of defendant and the other vehicles until the warrant was obtained. The Supreme Court has held that when there is probable cause for search of a vehicle there is no difference for constitutional purposes between seizing and holding a vehicle until a warrant is obtained and, on the other hand, carrying out an immediate search without a warrant. “Either course is reasonable under the Fourth Amendment.” Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).

At oral argument counsel for the defendant stated that the deputy who conducted the search was also involved financially in the company which furnished security guards to the struck plant. He emphasized that the deputy was acting in his official capacity and that the search of defendant’s truck was not a private search. Nevertheless, he urged this court to infer that the deputy acted differently in this case than he would have in the absence of a connection with the struck plant and to hold that he conducted a “general search” that was unreasonable. The district court heard the evidence which related the tie between the deputy and the struck plant. There was probable cause to conduct a search and the district court found no unreasonable extension of the search. This determination was not erroneous.

We find no merit in the remaining contentions of the appellant.

The judgment of the district court is affirmed.

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622 F.2d 204, 1980 U.S. App. LEXIS 17872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-danny-lee-fultz-ca6-1980.

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