United States v. Joseph J. Bertucci, A/K/A Frank James Bertucci

532 F.2d 1144
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 2, 1976
Docket75-1795 to 75-1797
StatusPublished
Cited by9 cases

This text of 532 F.2d 1144 (United States v. Joseph J. Bertucci, A/K/A Frank James Bertucci) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Joseph J. Bertucci, A/K/A Frank James Bertucci, 532 F.2d 1144 (7th Cir. 1976).

Opinions

JULIUS J. HOFFMAN, Senior District Judge, Sitting by Designation.

These appeals by the defendants Joseph J. Bertucci, a/k/a Frank James Bertucci, Joseph A. Argento and Phillip F. Abbott, from their convictions for possession of stolen goods in violation of 18 U.S.C. § 659 present the question of whether a warrant-less search of a motor vehicle was reasonable under the Fourth Amendment. The district court denied the joint motion of the defendants to suppress evidence thus obtained and entered judgments of conviction upon jury verdicts of guilty. We affirm the judgments of the trial court.

At 1:30 a. m, on November 17, 1974, Illinois State Troopers Clyde Paris and Donald Pabst observed a north-bound Chevrolet [1145]*1145van weaving back and forth across the center line of Illinois State Route # 1, eight miles south of Mt. Carmel, Illinois. By means of a flashing red light, the officers directed defendant Bertucci, who was driving the van, to pull over into a gravel lot adjacent to the highway. Bertucci pulled over as directed and the officers parked behind the van. Bertucci then emerged from the van and met the officers between it and the patrol car. Upon request, Ber-tucci displayed a valid Illinois driver’s license and when questioned about the weaving, replied that he was tired. Pabst and Paris detected no odor of alcohol.

They proceeded with Bertucci to the front of the van for the purpose of conducting a customary inspection for alcohol or weapons. At the open door on the driver’s side, Bertucci stepped quickly in front of Pabst as if to restrain him from looking into the van. Proceeding to shine their flashlights through the front windows, the officers observed defendant Abbott in the passenger seat and also some shipping cartons in the rear of the van, with defendant Argento lying “spread eagle" over the tops of some of the cartons. Bertucci volunteered that the three men were moving his aunt from Evansville, Indiana, to Chicago, Illinois, and produced his copy of an agreement for the rental of the van. In their inspection, the officers discovered no alcohol or weapons.

Accompanied by all of the defendants, the officers moved to the rear exterior of the van. By flashlight through the window, they observed that the shipping cartons were sealed and that invoice envelopes were attached to them. Bertucci then stated that his aunt had bought the goods in Evansville and that he, Abbott and Argento were moving them to Chicago for her. The officers requested Bertucci’s permission to examine the cartons more closely. In response, he opened the rear door of the van. The officers then removed an invoice bearing the address of a hardware store in Beaver Dam, Kentucky, from an envelope attached to one of the cartons. Bertucci said that if permitted to make a phone call, he could verify his story of why the three men were transporting the cartons.

The officers then directed the defendants to the Mt. Carmel, Illinois, police station, where they were advised of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the station, the officers opened the shipping cartons and discovered the contents to be trousers and stereo components. By telephone conversation with the shopkeeper at the address in Beaver Dam, Kentucky, Pabst and Paris learned that goods ordered several weeks previously had not arrived. In a third version of why the defendants were in possession of the cartons, Bertucci stated that he had purchased them from an Eddie Andrews at 201 First Street in Evansville, Indiana. The Evansville police found no listing for Andrews or the address. While defendants were permitted an unlimited number of telephone calls from the police station, none produced information substantiating any of Bertucci’s explanations.

The Fourth Amendment prohibits unreasonable searches and seizures. “Except in certain carefully defined classes of eases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930, 935 (1967). The parties do not here question the reasonable police conduct of stopping a weaving van at 1:30 a. m., and inspecting the front thereof for intoxicants and weapons. United States v. Hood, 493 F.2d 677, 680 (9th Cir. 1974), cert. denied 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). What they vigorously dispute is the authority of the officers under the Fourth Amendment to inspect the rear portion of the van.

We conclude that the officers had probable cause to search the entire van for alcohol or weapons. Thus, any Fourth Amendment distinction between the front and rear portions is untenable. If the officers may lawfully search the front for alcohol or weapons, it would be unreasonable to expect them not to search the rear. Both [1146]*1146the front and rear are logical places for concealment of alcohol or weapons. In view of the weaving and the furtive attempt of Bertucci to restrain Pabst from looking into the van, the officers could justifiably expect to find alcohol or weapons, even though Bertucci had said that he was merely tired and the officers had detected no odor of alcohol. None of the defendants has suggested that a warrant is required to inspect the back seat of an automobile, which has been stopped for weaving, for weapons or alcohol. Open to view by flashlight from three windows, the rear portion of the van is like the back seat of an automobile. It is unlike the trunk, which because of its complete enclosure, might generate a greater expectation of privacy then the back seat, and even a trunk is accessible to warrantless search under appropriate circumstances. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Furthermore, the fact of nightfall makes no difference in the case before us. Darkness does not usher in a set of Fourth Amendment rules different from those applicable in daylight.

The limited intrusions of Pabst and Paris are acceptable for other reasons. It is familiar doctrine that objects in plain view of officers rightfully in position to have that view are subject to seizure without warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1967). The stop by the officers of the weaving van rightfully brought them into position to observe the cartons by flashlight through the front or rear windows. The shipping cartons plainly visible in the rear might have contained either weapons or intoxicants. It is no answer that they contained evidence of a crime instead, for the Supreme Court has recognized that “ . . . often noncriminal contact with automobiles will bring local officials in ‘plain view’ of evidence, fruits or instrumentalities of a crime, or contraband.” Cady v. Dombrowski, supra, 413 U.S. at 442, 93 S.Ct. at 2528, 37 L.Ed.2d at 715.

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Bluebook (online)
532 F.2d 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-j-bertucci-aka-frank-james-bertucci-ca7-1976.