United States v. Karriem Wali Muhammad, A/K/A Charles William Cannon

658 F.2d 249, 1981 U.S. App. LEXIS 18073

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 1, 1981
• Docket: 79-5274, 79-5275
• Status: Published

Opinions

BUTZNER, Circuit Judge:

Karriem Wali Muhammad appeals his convictions in two separate trials for armed bank robbery, unarmed bank robbery, and bank larceny. Muhammad claims that the trial court erred in both cases by refusing to suppress evidence found in the trunk of his car. We affirm the convictions of armed robbery and remand for vacation of the concurrent sentences imposed for the lesser included offenses.¹

I

Muhammad was arrested by FBI agents and charged with being one of two participants in a Maryland bank robbery. A few days after he was released on bail, two men, using tactics markedly similar to those of the robbery for which Muhammad had been arrested, robbed another Maryland bank. Immediately after the robbery, one of the tellers at the second bank identified Muhammad from a photographic spread. A local police officer also informed the FBI agents that she had observed a green, four-door, American-make vehicle stopped in a no-parking zone in the vicinity of the bank about the time of the robbery. She had seen one man behind the wheel and one at the back of the vehicle near the trunk. An FBI agent present at the scene knew that Muhammad drove a four-door green Matador.

On the basis of the photographic identification and the officer’s description of the car, the agents went to Muhammad’s apartment where they observed in a parking lot a green Matador whose license plate was registered to Muhammad. The agents set up surveillance, and an hour later they saw Muhammad and his wife approach the vehicle. The police officer, who had accompanied the agents, said that Muhammad could be one of the men she had seen near the bank. Muhammad opened the car’s trunk but closed it quickly when he saw the agents approach. He was then arrested. Another police officer mentioned that several years ago an armed accomplice had come out of the trunk of a stopped car and engaged the investigating officers in a gun battle.

Two agents remained with the car while others took Muhammad to be booked. The agents contacted an assistant United States attorney in Washington, D. C., to ask what they should do with the car. The attorney erroneously replied that there was insufficient cause to obtain a. search warrant for the car. The agents then phoned a Baltimore assistant United States attorney, who advised them to impound the car and obtain a warrant before searching it.

Several hours after the arrest, the agents had the ear towed to the FBI garage in Washington. Concerned about, the possibility of a concealed accomplice, the agents decided to search the trunk. One of the agents forced the lock, while the other stood guard with drawn gun. Inside the trunk were a handgun, a box of ammunition, a bagful of money (including red-dyed “bait” money from the robbed bank), and various articles of clothing. This evidence was introduced at both of Muhammad’s trials.

The district court denied the suppression motion, apparently on alternate grounds.² First, the court found that there was probable cause to search the car at the scene of the arrest. It held that officers having probable cause to make a warrantless search of an automobile at the scene may delay their search until the car has been seized and taken to police headquarters. Second, the court said that the officers’ suspicion regarding the presence of an accomplice in the trunk also justified the warrantless search:

They could have searched at the scene but they waited until later and while there may be, perhaps some question as to whether there was great fear that somebody might be in the trunk, it is conceivable, and in those circumstances you don’t take a chance because the one time that you don’t expect something to happen, that’s when it happens and somebody gets killed. And I think that they acted reasonably.

II

Muhammad acknowledges that there was probable cause to search the car at the time of his arrest. He insists, however, that there were no exigent circumstances to justify the subsequent warrantless search.

Ample precedent supports the district court. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the defendants argued that officers should be allowed only to immobilize a car after it is stopped and should be required to obtain a warrant before searching it. The Court rejected this argument and upheld the validity of the search:

For constitutional purposes, we see no difference between on the one hand seizing and holding a car 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.

On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. 399 U.S. at 52, 90 S.Ct. at 1981.

Five years later, in Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975), the Court characterized Chambers as holding that “police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant.” The Court reiterated that probable cause developed at the scene still obtains at the station house.

In response to Chambers and White, Muhammad relies on Cooiidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Because there the search warrant was defective, the issue arose whether the “warrantless” seizure of the defendant’s car and the subsequent station house searches, conducted over the course of a year, violated the fourth amendment. In determining that the searches were not constitutional, Justice Stewart concluded that although there had been probable cause to search the vehicle when the defendant was arrested, there were no exigent circumstances that would have justified a warrantless search at that time:

And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where “it is not practicable to secure a warrant,” Carroll, supra, [267 U.S. 132] at 153 [45 S.Ct. 280 at 285, 69 L.Ed. 543] and the “automobile exception,” despite its label, is simply irrelevant. 403 U.S. at 462, 91 S.Ct. at 2035-2036.

Having determined that a warrantless search would not have been permissible at the time of the arrest, the plurality opinion held that Chambers was of no help to the state in justifying the subsequent station house searches. 403 U.S. at 463, 91 S.Ct. at 2036.

Cooiidge and Chambers are difficult, but not impossible, to reconcile. Most courts agree that when a moving car is stopped by law enforcement officials who have probable cause to search the car, Chambers permits both an immediate warrantless search and a subsequent warrantless station house search. See, e. g., United States v. Colclough, 549 F.2d 937 (4th Cir. 1977); United States v. Chulengarian, 538 F.2d 553 (4th Cir. 1976); United States v. Maspero, 496 F.2d 1354 (5th Cir. 1974). In contrast, when the car is stationary at the time of arrest, Cooiidge has led some courts to require proof of exigent circumstances to justify a warrantless search. See, e. g., United States v. Farnkoff, 535 F.2d 661 (1st Cir. 1976); United States v. Brennan, 538 F.2d 711 (5th Cir. 1976). If an exigent circumstance existed at the time of arrest, a subsequent station house search conducted within a reasonable time is permissible, even though the exigent circumstance may have dissipated during the interim between arrest and search. United States v. Castaldi, 453 F.2d 506 (7th Cir. 1971). See La-Fave, Search and Seizure, § 7.2 at 526-30 (1978).

The distinction between parked and moving cars has been criticized as analytically flawed. As Justice White explained in his separate opinion in Coolidge, 403 U.S. at 525, 91 S.Ct. at 2067:

Although [the line of cases from Carroll to Chambers] may, as the Court argues, have involved vehicles or vessels in motion prior to their being stopped and searched, each of them approved the search of a vehicle that was no longer moving and, with the occupants in custody, no more likely to move than the unattended but movable vehicle parked on the street or in the driveway of a person’s house. In both situations the probability of movement at the instance of family or friends is equally real, and hence the result should be the same whether the car is at rest or in motion when it is discovered.

Assuming, however, that some exigent circumstances must be present when the car is parked, we think those factors were present here.

In contrast to the absence of exigent circumstances in Coolidge, in this case (1) there was probable cause to believe the car contained contraband or stolen goods or weapons; (2) there had been at least two individuals involved in the bank robbery and thus there may have been one or more confederates available to move the evidence; and (3) because Muhammad’s wife was present at the arrest, she could alert a confederate. Also, we find no error in the district court’s conclusion that the search was justified by the agents’ professed concern that Muhammad’s accomplice might still be in the car’s trunk. As to the existence of such fear, we cannot say that the district court’s finding was clearly erroneous. Assuming such concern on the part of the agents, we think that the fourth amendment’s prohibition against unreasonable searches must be read in light of the strong public interest in ensuring the safety of law enforcement officers. See, e. g., Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968) (“[I]t would be unreasonable to require that police officers take unnecessary risks in the performance of their duties”).

These were exigent circumstances that would have justified a warrantless search of the parked car at the scene of the arrest. Even if some of these circumstances had dissipated by the time of the search at the FBI garage, the subsequent search was constitutional. See Chambers v. Maroney, 399 U.S. 42, 59, 90 S.Ct. 1975, 1985, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 464, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (by implication); United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) (dictum); United States v. Castaldi, 453 F.2d 506, 508-11 (7th Cir. 1971).

AFFIRMED AND REMANDED.

1 . The district court noted that it would vacate the sentences for the lesser included offenses if the judgment for armed robbery were affirmed.

2 . Although the motion to suppress was made in the case charging Muhammad with the second robbery, the government had given Muhammad notice of its intention also to use the evidence at the trial for the first robbery. Therefore, the single suppression hearing controlled both trials.