United States v. Tharpe

526 F.2d 326, 1976 U.S. App. LEXIS 13186

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 23, 1976
• Docket: No. 75-1491
• Status: Published

Opinions

GEE, Circuit Judge:

Ralph Donald Tharpe was convicted of violating 18 U.S.C. § 922(g)(1).¹ He has challenged the validity of this conviction on a number of grounds, but because of the result we reach we need only discuss one in detail — suppression of a gun which was the sole subject of the indictment against him. We conclude, on the record, that the gun was discovered during an unreasonable search and, thus, should have been suppressed as evidence. It follows that the conviction must be reversed.

At 6:00 p. m. on January 16, 1973, Officer Martin of the Fulton, Mississippi police department received word from his dispatcher that the Tupelo, Mississippi police department had called and advised Fulton to be on the lookout for a Pontiac GTO equipped with chrome pipes and Alabama license plates and occupied by three white males. The information relayed indicated that Raymond Hester, who had just passed some worthless checks in Tupelo, was one of three men in such an automobile. 'Tupelo wanted him. It happened that Officer Martin had in mind additional information concerning Hester at the time he received this call. He had seen Hester previously at the Fulton County Jail and thus knew him by sight. Also, he had been informed six days earlier that Hester and two men identified as the Tharpe brothers, whom he did not know, were suspects in a Red Bay, Alabama burglary and that the authorities there wanted to talk to them. The Red Bay police had also mentioned that Hester and the Tharpe brothers were known burglars in Alabama.

At 6:30 p. m. — after dark — Officer Martin saw a GTO identical to the one described by his dispatcher and occupied by three white males. He stopped the car, approached the driver and asked him if he were Hester. Upon receiving a negative response, he asked to see his driver’s license. It was in the name of Wiggington. By this time Martin apparently had recognized that the driver was indeed Hester and so challenged his license’s assertion that he was Wigging-ton. Thus confronted, Hester admitted his identity. Martin immediately placed him under arrest for driving without a license. Next Martin asked the two passengers to identify themselves. When they replied that they were Ralph and Carl Tharpe, he ordered them out of the car into an area illuminated by the headlights and proceeded to pat them down. The patdown of Ralph led to the discovery of the gun.

The govermhent, the defense and the trial court all agreed that Tharpe was not under arrest at the time he was searched² and that the search could in no way be justified as one made incident to a lawful arrest.³ Nor was Officer Martin acting pursuant to warrant. The government contends, however, that the search is justified as reasonable because .it falls within that limited category of prophylactic patdowns authorized and defined by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). On the facts elicited at the suppression hearing, we disagree.

Once it has been established that a particular search was conducted in the absence of a warrant, “[t]he burden is upon the government to show that the search fell within one of the exceptions to the Fourth Amendment requirement of a warrant.” United States v. Cristancho-Puerto, 475 F.2d 1025, 1027 (5th Cir.), cert. denied, 414 U.S. 869, 94 S.Ct. 181, 38 L.Ed.2d 115 (1973), quoting Brett v. United States, 412 F.2d 401, 405 (5th. Cir. 1969). See also, e. g., Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The manner in. which this burden may be discharged has been made clear by the Supreme Court.

In Terry, the Supreme Court recognized that the Fourth Amendment does not preclude all warrantless, limited, patdown searches for weapons even when probable cause is lacking. It held that such searches are reasonable

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety .

Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884 (emphasis added). And in Sibron it laid down the prerequisites:

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

Sibron v. New York, 392 U.S. at 64, 88 S.Ct. at 1903 (emphasis added). Both opinions make it clear that the “particular facts” must be specific and articulated. And at a minimum, they also require that they must be facts which, when viewed objectively, would give rise to a reasonable belief (in a prudent, experienced officer) that the individual confronted might be ⁴ armed and dangerous. Terry, 392 U.S. at 21 — 22, 27, 88 5. Ct. 1868. But more, as the emphasized portions of the above-quoted passages indicate, the two cases require that the officer who conducted the patdown must actually have inferred from the facts available, in light of his experience, that the individual searched might have been⁵. armed and potentially dangerous.⁶

We need not decide whether, viewed objectively, the facts available to Officer Martin concerning Tharpe and the circumstances surrounding his pat-down were sufficient to sustain the search.⁷ As mentioned, the burden of proof to justify the patdown was on the government. To prevail it needed to show an actual, reasonable belief ⁸ on the part of Martin that Tharpe might be armed and that, as a result, he, as an investigating officer, might be in danger — in other words, a well-founded belief that a patdown was necessary for his own protection. But no evidence was elicited at the suppression hearing which even approaches establishing a subjective belief on Martin’s part that Tharpe might have been armed. Moreover, Martin’s testimony contradicted the possibility that he believed Tharpe dangerous to him.⁹ What does emerge from Martin’s testimony is the distinct impression that after discovering Tharpe’s identity he always intended to take him down to the station and that, as a matter of practice, he never closed people up in the car behind him without first patting them down.¹⁰

Since the government failed to justify the warrantless search of Tharpe it was error for the trial court to have admitted into evidence the fruit of that search, the gun.¹¹

Reversed and remanded.

1 . 18 U.S.C. § 922(g)

It shall be unlawful for any person—

(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year:

* * * * * to ship or transport any firearm or ammunition in interstate or foreign commerce.

2 . A patdown is, of course, a search. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3 . Any arrest of Tharpe made prior to the discovery of the gun based upon either the Tupelo or Red Bay incidents would have been unlawful. Officer Martin knew about Tharpe only that he was a passenger in a car driven by a man wanted for passing bad checks and that out-of-state authorities wished to talk to' him concerning a burglary.

In his testimony at the suppression hearing, Officer Martin stated that he could have arrested Tharpe for “public drunk.” Such an arrest was never made.

4 . There is some doubt about whether the two cases require the facts to point to the conclusion that the person to be frisked actually is armed and dangerous or only to the conclusion that he might be. See W. LaFave, “Street Encounters” and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 84-88 (1968). J. M. Weisgall, Stop, Search and Seize: The Emerging Doctrine of Founded Suspicion. 9 U.San Francisco L.Rev. 219, 231-32 n. 69, 70 (1974). We need not address that question here.

5 . See footnote 4 infra.

6 . Cf. Gustafson v. Florida, 414 U.S. 260 at 266, 94 S.Ct. 488 at 492, 38 L.Ed.2d 456 (1973), in which the Court, upholding a search incident to a lawful traffic arrest, observed,

Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Smith did not indicate any subjective fear of the petitioner or that he did not himself suspect that the petitioner was armed.

Doubtless, in referring to “fear,” the Court intends reasonable grounds for apprehension, not a sliding scale calibrated in subjective boldness.

7 . Facts which possibly indicate that Tharpe was armed were (1) the information that he was a known burglar, (2) the information that he was a suspect in a recent unsolved burglary, and (3) his current (possibly criminal) association with a man wanted for a felony committed only hours before the search. Facts which indicate possible threats to safety were the three mentioned above plus (1) Officer Martin was alone facing three men, (2) it was night and the stop took place in a poorly-lit area, (3) Martin had arrested Tharpe’s companion, and (4) Tharpe had been drinking.

8 . We reject as not compatible with Supreme Court case law the per se rule of the Ninth Circuit that

All companions of the arrestee within the immediate vicinity, capablé of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory “pat-down” reasonably necessary to give assurance that they are unarmed.

U. S. v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971).

9 . Cf. United States v. Kirsch, 493 F.2d 465 (5th Cir. 1974).

10 . Of course, as a practical matter this bespeaks good police procedure. Normally, however, before the police take someone “downtown” they arrest him. If the arrest proves lawful, a search incident to it will be held reasonable. We cannot, however, condone searches simply because an officer intends to take a suspect into custody and therefore wishes to find out if he is armed. If that were the law there would be nothing to restrain the police from patting down anyone whether or not they have either probable cause to arrest or a reasonable belief that the person whom they are investigating might be armed and dangerous.

11 . Because we reverse we find it unnecessary to consider any of the other allegations of error except Tharpe’s contention that he was denied his Sixth Amendment right to a speedy trial. Under the facts and current Fifth Circuit case law, that contention is without merit and is rejected.