United States v. Stanley Eugene Boyd

530 F.2d 1269, 1976 U.S. App. LEXIS 11520

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 3, 1976
• Docket: 75--2040
• Status: Published

Opinions

GODBOLD, Circuit Judge:

Defendant was convicted of interstate transportation of stolen firearms, 18 U.S.C. § 922(i), and possession of a firearm by one previously convicted of a felony, 18 U.S.C. App. § 1202. The major point on appeal concerns admissibility of weapons which came into possession of arresting officers following an allegedly illegal arrest.

On October 13, 1974, on a road near Cedartown, Georgia, two Georgia state troopers were conducting a routine check of vehicles for the purpose of examining drivers’ licenses, license tags, and state inspection stickers.¹ Defendant does not question the validity of the inspection activity.

Defendant drove up in a well-worn 1959 Edsel. When a trooper asked for his driver’s license, defendant handed him a license and told him his name was misspelled on it. The trooper checked for license plates and found mounted on the rear of the car a 1974 Alabama plate, No. 13-10345, and also saw in the rear window of the car a crude cardboard “tag” lettered “Alabama 74” and bearing the number 11 52479. As the officer was checking the license plate he saw several shotguns and rifles [five, as it turned out] on the rear seat, exposed to plain view. The trooper commented to defendant about one “nice looking” shotgun. He asked and received defendant’s permission to examine the weapons, and did examine them. Whether they were taken from the ear and put back or merely visually examined through the window is unclear but irrelevant. As the trooper finished looking at the guns he saw in plain view on the front seat a bottle of liquor with the seal on it broken. He reached through the open window, picked up the bottle, and examined it. It bore no Georgia tax stamps as required by state law. It is not clear whether the trooper saw that the stamp was absent before or after he reached through the window and picked up and examined the bottle.

The trooper arrested defendant for possession of non-taxpaid liquor. He and his car were taken to the county jail in Cedartown where he was booked and jailed on that charge. His car was parked on a public street outside the county courthouse. There is testimony that the car was locked, other testimony that it was not locked. The guns were removed from the car for safekeeping and locked in an office in the courthouse. The removal violated no rights of the defendant. Indeed, even if the car was locked, the officers might have been liable had the guns, open to public view through the car window and on the public street, not survived the night.

Local officers notified federal agents that they were suspicious of the guns, and federal officers examined them. It turned out that they had been stolen in South Carolina two days before defendant was arrested. The instant federal charges were brought, and the guns were introduced in evidence at defendant’s trial.²

The guns were not the fruit of an illegal arrest. Defendant does not question the initial stop, so we analyze events occurring after the stop. On examination of those events, we conclude that the trooper could arrest for the offense, committed in his presence, of possession of non-taxpaid liquor. Without regard to whether the officer observed the absence of a stamp before he reached through the car window and picked up the bottle, or only after he had it in his possession, he did not violate defendant’s Fourth Amendment rights. Having made a valid investigatory stop on other and unrelated grounds he had come into possession of additional information that permitted, and indeed mandated, that he make some further minimal investigation. U. S. v. West, 460 F.2d 374 (CA5, 1972); Frye v. U. S., 315 F.2d 491, 494 (CA9, 1963). Cf. U. S. v. Rollerson, 491 F.2d 1209 (CA5, 1974). The complex of facts which we have set out were highly suspicious in a general sense. And, in a more specific sense, various possible combinations of liquor, car and guns posed threats to highway safety and to the community at large that a peace officer neither could nor should ignore. If there was any invasion of privacy arising from the cursory scrutiny of the exterior of a bottle open to public view, it was minimal and was well within the range of what the officer constitutionally could do when alerted by the suspicious circumstances that existed.

Appellate counsel for the defendant has made a stringent and overenthusiastic attack on alleged ineffectiveness of trial counsel. In large part this is not based on matters of record but on unsworn statements of the defendant made in an outburst at trial and on inferences drawn by appellate counsel from matters that he considers should be in the record but are not. Insofar as shown by the record before us, there is no ineffectiveness of counsel. Insofar as claims are asserted based on extrinsic matters, they are not properly before us.

AFFIRMED.

1 . They had arrested a person for DWI and conducted the inspections while awaiting assistance to remove the car of the arrested driver.

2 . The guns were the fruits of burglaries of two homes that had occurred on October 11 in South Carolina, in which guns and jewelry had been taken. A black Edsel was observed on the scene of one burglary. Defendant was wearing a ring taken from one of the homes. On October 12, 1974, defendant attempted to sell a shotgun and jewelry to a waitress in Rome, Georgia.