United States v. Dennis Mikel Cole

628 F.2d 897, 1980 U.S. App. LEXIS 12902

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 23, 1980
• Docket: 79-5529
• Status: Published

Opinions

GODBOLD, Circuit Judge:

Appellant Cole was convicted on five counts of unlawful possession of firearms. He challenges the failure of the district court to suppress evidence seized during searches of his person and his truck. We affirm as to counts one through four and reverse as to count five.

The facts

San Antonio police officers lawfully obtained a valid search warrant¹ to search, for amphetamines,

the premises described as a one story duplex family dwelling being the rear apartment, known and numbered as 303 Savannah, rear apartment and a white Chevrolet with a blue top and Mag wheels and bearing Texas 79 plates EGB-81.

As police approached the premises they observed appellant’s black pick-up truck pull into a carport attached to the rear apartment. Appellant got out of his truck and immediately an officer frisked him for weapons. This frisk uncovered a small pistol on appellant’s belt which was seized and subsequently formed the basis of count five of the indictment.

The frisk took place beside appellant’s truck, the door of which was still open. Through the open door the frisking officer noticed, lying on the front seat, a box containing white powder, some syringes and another gun in a holster. These items were also seized² and appellant was brought inside the apartment, where several officers were executing the search warrant. Amphetamines were found inside the apartment, and appellant and the occupants of the apartment were arrested.

The officers brought appellant back outside and proceeded to search his truck. In the course of this search they found numerous weapons, including a pen gun inside the sweatband of a hat (the basis of counts three and four), and a silencer in an attache case (the basis of counts one and two).

I. The frisk

The officer’s pat-down of appellant cannot be justified by appellant’s mere presence on the premises during the execution of the warrant. “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245 (1979). Mere presence neither obviates nor satisfies the requirement of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that specific articulable facts support an inference that the suspect might be armed and dangerous. Ybarra, supra, 444 U.S. at 92, 100 S.Ct. at 343, 62 L.Ed.2d at 246-47. See also U. S. v. Tharpe, 536 F.2d 1098, 1100 (5th Cir. 1976) (en banc).

Nor does the fact that the officers testified that they had previously received information of an undisclosed nature about appellant constitute reason to search under Terry. Without knowledge of the content of that information the court cannot assess the reasonableness of the inference of dangerousness. The exceptions to the requirement of a warrant are narrow and jealously guarded, and “ ‘the burden is on those seeking the exemption to show the need for it.’ ” Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235, 242 (1979), quoting U. S. v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951). This burden was not met by testimony that the officers involved had prior information about appellant, absent proof that the information was of a sort from which an inference of dangerousness could reasonably be drawn.

Since the frisk violated appellant’s Fourth Amendment rights, the district court erred in refusing to suppress the pistol found on appellant’s belt. Appellant’s conviction on count five cannot stand.

II. The truck

In U. S. v. Napoli, 530 F.2d 1198 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976), this court held that a warrant to search “premises known as” a particular address and described as a residential dwelling conferred authority to search a camper parked in the driveway. Here the warrant referred to “premises described as” a family dwelling, “being the rear apartment” of a particular address. There is no significant difference in the terms of the two warrants. Under Napoli, therefore, appellant’s truck, parked in a carport attached to the rear apartment, was within the scope of the warrant.³ The officers were thus authorized to search the truck, limited only by the nature of what they were searching for. See Walter v. U. S., - U.S. -, -, 100 S.Ct. 2395, 2400, 65 L.Ed.2d 410 (1980); Harris v. U. S., 331 U.S. 145, 152, 67 S.Ct. 1098, 1102, 91 L.Ed. 1399, 1407 (1947). Both the hat (in which the gun was found) and the attache case (in which the silencer was found) might have contained drugs. The officers thus did not exceed the scope of the warrant in searching those items. The convictions on counts one through four, based on the pen gun and the silencer, must be affirmed.

AFFIRMED IN PART and REVERSED IN PART.

1 . Appellant’s contention that the affidavit upon which the warrant was based was deficient insofar as it established the informant’s credibility solely by a recital that the informant had previously given reliable information is without merit. U. S. v. Tucker, 526 F.2d 279, 281 (5th Cir.), cert. denied, 425 U.S. 958, 96 S.Ct. 1738, 48 L.Ed.2d 203 (1976).

2 . These items were not included in any counts of the indictment.

3 . See also the following cases discussed in Napoli : U. S. v. Anderson, 485 F.2d 239 (5th Cir. 1973), cert, denied, 415 U.S. 958, 94 S.Ct. 1487, 39 L.Ed.2d 573 (1974) (warrant for premises held to include flower bed outside house); U. S. v. Long, 449 F.2d 288 (8th Cir. 1971) (warrant for premises held to include outside trash barrel); Brooks v. U. S., 416 F.2d 1044 (5th Cir. 1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970) (warrant for lot and cabin held to include automobile parked near cabin).

3 . Ybarra, supra, 100 S.Ct. 343 at n. 4.