United States v. Raymond Adams

484 F.2d 357, 1973 U.S. App. LEXIS 9985

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 11, 1973
• Docket: 72-1313
• Status: Published

Opinions

SPRECHER, Circuit Judge.

This appeal raises the troublesome problem of a warrantless automobile search. Defendant Raymond Adams was convicted of possession of a sawed-off shotgun which was not registered to him in violation of 26 U.S.C. § 5861(d). He was placed on probation for two years.

I.

On March 30, 1971, while a racial riot was in progress at Washington High School in South Bend, Indiana, an employee of a gasoline station about three blocks from the school observed three black males approaching a yellow automobile. One of them appeared to be carrying a long shoulder-type weapon, the barrel of which protruded about 12 inches from underneath his jacket. Shortly thereafter the employee, while delivering an automobile to a customer, saw a police officer on the street and told him that he had seen three males who appeared to be armed approaching a yellow automobile.

About that time a South Bend police officer on patrol duty in a marked police car in the area around Washington High School received a radio message to be on the lookout for a yellow car with three male black subjects in it, possibly armed. The officer responded to the call by driving toward the location given in the message of the 4400 block of Western Avenue. As he traveled on Western Avenue, a yellow car with three black males passed him. He made a U-turn and followed them. The two passengers turned around and looked at him, at which time he turned on his red light and siren for three short bursts.

The yellow car did not stop immediately but instead the two passengers bent over as if picking up something or doing something on the bottom of the car. The car stopped after the third siren blast. By that time other police units came on the scene. The three occupants stepped out of the yellow car. As the officer approached the car he observed a bolt-action shotgun on the back seat with the bolt pulled back and one shell locked in the bolt. He further observed a Western style revolver lying on the floor on the driver’s side. On the passenger’s side of the front seat, he observed what first appeared to be a pipe protruding from underneath the front seat. When he pulled this object out he discovered that it was a twelve-gauge sawed-off shotgun.

The above facts were adduced at a hearing on the defendant’s motion to suppress evidence. Defendant also testified at the hearing. He said that when the first officer saw the weapons in the car, he said, “They’ve got guns” and then “everybody went . . . drawing (their weapons) and body-slapping people against the car and putting handcuffs on.” The district court denied defendant’s motion to suppress.

II.

Defendant first argued that the officer’s actions in turning on his red light and siren and stopping the car was an arrest, that there was no probable cause to arrest defendant, that consequently the search of the defendant and vehicle was not incident to a valid arrest, and that the court erred in denying the motion to suppress.

Defendant argued that “there is nothing unlawful about a male negro carrying a rifle.” A different situation may exist, however, when a male or female, black or white, is carrying a rifle within a few blocks where a racial disturbance is in progress at a high school. The district court found that there was sufficient probable cause for the arrest and search “under the conditions existing at the time of this disturbance in the vicinity.” He added:

“I think the officers would be derelict in their duty if under all the circumstances there at the time and place, the situation then existing, they had done any less.”

At the suppression hearing, the gasoline station employee referred to “the riot that was happening at Washington High School at this time.” When he first observed defendant with the gun he was about three blocks from the high school. The arresting officer testified at the suppression hearing that he was on patrol duty in the area around Washington High School where “[w]e had a disturbance with the students at the school at that time.” He stopped and eventually arrested defendant while he was still within blocks of the high school.

At the trial, the gasoline attendant referred to “the racial riots at Washington High School,” whereupon defendant’s counsel moved to strike that comment. The trial court said:

“I do not believe that this Motion should be granted because the situation then existing was a part of the background against which the Police were there and acting, but I should say to you, too, that insofar as the Court knows, there is no evidence here in any way tying this defendant with anything that was going on around Washington High School. So all of these facts may be just purely coinci-dential; that I do not know, but I do want to say that there’s nothing suggested here that ties him in here with what was going on at Washington High School, but I cannot erase from the record the fact that it was that day.”

Also at the trial, the arresting officer testified that he was on patrol duty in the vicinity of the high school. Another officer at the scene of the arrest testified that “I was in the vicinity of Washington High School along with many other officers as we had some trouble with the students.” The disturbance or trouble or riot at the high school was within the personal knowledge of the arresting officers as well as of the informant.

The time and place setting of a search is not wholly irrelevant to its validity as defendant would lead us to believe.

In The Appollon, 22 U.S. (9 Wheat.) 159, 164-165, 6 L.Ed. 111 (1824), Mr. Justice Story, commenting upon the existence of probable cause for the seizure of a French vessel, said:

“It has been very justly observed at the bar, that the court is bound to take notice of public facts and geographical positions; and that this remote part of the country has been infested, at different periods, by smugglers, is a matter of general notoriety if

The Supreme Court found probable cause for the warrantless search of an automobile primarily on the ground that “Grand Rapids is about 152 miles from Detroit and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active centers for introducing illegally into this country spiritous liquors for distribution into the interior.” Carroll v. United States, 267 U.S. 132, 160, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925). Recently, the Court said in Adams v. Williams, 407 U.S. 143, 147-148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972):

“While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a ear in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety.” (Emphasis supplied.)

In other words, we commence our consideration of the validity of the search with the underlying fact that it took place at the time of and within a few blocks of a racial disturbance in progress at a high school. The threshold of probable cause was lowered by this permeating factor. None of the many cases relied on by the defendant involved a similar circumstance.

Next, we are faced with the fact of a moving automobile. In Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S. Ct. 2022, 2034-2035, 29 L.Ed.2d 564 (1971), the Court said:

“The underlying rationale of Carroll and of all the cases that have followed it¹ is that there is

‘a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ 267 U.S., at 153, [45 S.Ct. at 285]. (Emphasis supplied.)

“As we said in Chambers, [Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419] . . . ‘exigent circumstances’ justify the war-rantless search of ‘an automobile stopped on the highway,’ where there is probable cause, because the car is ‘movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ ‘[T]he opportunity to search is fleeting . . .’ (Emphasis supplied.)”

Next, the informant’s facts here were not based on “suspicion, belief or mere conclusion,” Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), nor upon “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation,” Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 27 L.Ed.2d 637 (1969), but upon the informer’s “direct observation and personal knowledge.” United States v. Squella-Avendano, 447 F.2d 575, 581 (5th Cir.), cert, denied, 404 U.S. 985, 90 S.Ct. 450, 30 L.Ed.2d 369 (1971).

Given the atmosphere of the school disturbance, a moving vehicle and the informer’s direct observation of an armed person previously entering the vehicle, the suspicious behavior of the two passengers staring at the patrolling police officer and then lowering themselves in their seats as though to conceal something, was undoubtedly sufficient to cause the officer to stop the automobile. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In United States v. Lindsey, 451 F.2d 701, 703 (3rd Cir. 1971), cert, denied, 405 U.S. 995, 92 S.Ct. 1270, 31 L.Ed.2d 463 (1972) the Court of Appeals said at page 703:

Applying Terry to the case at hand, we believe Marshal Brophy’s reactions to the unusual behavior of the defendant were justified. In the context of a possible airplane highjacking with the enormous consequences which may flow therefrom, and in view of the limited time in which Marshal Brophy had to act, the level of suspicion required for a Terry investigative stop and protective search should be lowered. Therefore, despite the fact that it may be said that the level of suspicion present in the instant case is lower than in Terry, it was sufficiently high to justify Marshal Brophy’s acting.”

In Ballou v. Commonwealth of Massachusetts, 403 F.2d 982 (1st Cir. 1968), cert, denied, 394 U.S. 909, 89 S.Ct. 1024, 22 L.Ed.2d 222 (1969), the police received information that several gangland figures were armed and meeting at a cafe. Although the informer in that case was without credentials or identity, the Court of Appeals said that for the police to have done nothing would not have been reasonable “in the light of police knowledge about the individuals and the all too real possibility of gangland violence.” The Court continued at 403 F.2d 985:

“The course of action decided upon here — to follow up the tip and investigate — was properly responsive to all the information the officers possessed and the governmental interests of crime prevention and detection. Failure to have investigated would, to use the Court’s words in Terry, [392 U.S. at 23, 88 S.Ct. at 1881] ‘have been poor police work indeed’.”

We conclude that while the suspicious actions of the defendant and his colleague were of less magnitude than in Terry, the addition here of the informer’s facts, the high school disturbance and the moving automobile were more than adequate to bring the doctrine of Terry into play and to justify the officer’s initial stop of defendant’s automobile. Those facts were undoubtedly also sufficient to justify a frisk of defendant and his companions. At that point, moreover, the officer saw a shotgun and a pistol in plain view and a sawed-off shotgun in partial view. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The frisk and automobile search ensued.

As Mr. Justice Harlan said in his concurring opinion in Terry at 392 U.S. 34, 88 S.Ct. 1886:

“Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer’s right to take suitable measures for his own safety followed automatically.”

We conclude that the search was a permissible one and that the district court properly denied the motion to suppress since “[t]he recurring questions of the reasonableness of searches” depend upon the “facts and circumstances —the total atmosphere of the case.” United States v. Rabinowitz, 339 U.S. 56, 63, 66, 70 S.Ct. 430, 434, 435, 94 L. Ed. 544 (1950).²

III.

The defendant raised two additional issues on appeal.

He contended that his statement to the officer that he owned the sawed-off shotgun, the possession of which is the subject of the indictment and conviction, should have been suppressed because of the failure of the officer to give complete Miranda warnings.

The arresting officer and two other officers who were present at defendant’s arrest testified at a hearing outside the jury’s presence that the arresting officer read the warnings to defendant before questioning him from a card which he carried in his wallet, including “the right to remain silent, right to counsel, and if they haven’t got funds to have counsel, that the court will see that they are properly defended.” The defendant’s counsel requested to see the card and it was shown to him. He did not object to nor cross-examine the officer in regard to the contents of the card nor did he offer it in evidence.

Defendant complained that the card was not offered in evidence by the government and that the defendant was not advised that he had a right to have an attorney present during questioning.

Assuming that the card did not include the warning regarding the presence of an attorney, the warnings, as summarized by the officer, were satisfactory under United States v. Lamia, 429 F.2d 373 (2d Cir.), cert, denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970), and United States v. Cusumano, 429 F.2d 378, 380 (2d Cir.), cert, denied, 400 U.S. 830, 91 S.Ct. 61, 27 L.Ed.2d 61 (1970), in the latter of which the Court said:

“It is unrealistic to expect the same degree of formality with respect to waiver and question ‘on the street’ as in the station-house.”

Finally, defendant contended that the trial court erred when he refused to give an instruction on the voluntariness of defendant’s statement,³ and instead gave the court’s own instruction.⁴ We find that the district court complied with 18 U.S.C. § 3501(a).⁵

The judgment of conviction is affirmed.

Affirmed.

1 . Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931) ; Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938) ; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

2 . It is clear that contraband (defined as an item the possession of which in itself is a crime) may be seized in the course of a legal search. Cf. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). The sawed-off shotgun which formed the basis of the offense in the instant case is contraband. See 26 U.S.C. §§ 5841, 5861(d), and 5871; 49 U.S.C. § 781(b)(2).

3 . “Ladies and gentlemen of the jury, before you take into consideration as evidence the statement (s) allegedly made to the South Bend police officers by the defendant you must first find that before making the statement (s) that — (1) defendant was informed lie had a right to remain silent and that anything he said could be used against him, and (2) defendant was informed that he had a right to have counsel present at the interview, and (3) defendant was informed that if he could not afford counsel, counsel would be furnished him to be present at the interview without cost before any interview.

“If no counsel was present at the time the alleged statement (s) was made by the defendant, the government must prove to your satisfaction beyond a reasonable doubt that the defendant intelligently and understandingly waived the right to have counsel present at the interview.

“In addition to making the foregoing findings, before you take into consideration the alleged statement (s) and evidence you must also find that the statement (s) was voluntary in accordance with the other instructions given to you, recalling that any statement(s) made outside of the Court should be considered with caution and weighed with great care.”

4 . “The Court instructs you that it has found that the statement made by the defendant at the time of his arrest was voluntary, and based upon that Court’s finding, the Government witnesses were permitted to testify as to certain statements which the defendant was alleged to have made at or following the time of his arrest.

“However, it is for the jury to determine the credibility and weight to be given such statement with respect to defendant’s innocence or guilt.”

5 . “In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible, in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, detei’mine any issue as to volun-tariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of volun-tariness and shall instruct the jury to give such weight to the confession as the jury feels it deseiwes under all the circumstances.”