Walter Horace Barrentine, Jr. v. United States

434 F.2d 636, 1970 U.S. App. LEXIS 6292

Opinions

PER CURIAM:

Appellant was convicted upon three counts of an indictment charging him with violation of federal gun control laws. (26 U.S.C. §§ 5822, 5841(c) or (d), 5842(a), 5861(c) (d) (i).) The critical item of evidence was a sawed-off shotgun. The shotgun was found in the trunk of appellant’s automobile, when state police officers, without a warrant, searched the car after appellant had been taken into custody on a drunk driving charge and after the officers had called for a tow truck to impound the automobile. Appellant’s motion to suppress the shotgun as the product of illegal search was denied.

The officers had no probable cause to believe that evidence of the offense for which appellant was arrested had been concealed in the automobile. There was no probable cause to believe that the vehicle contained contraband. The search of the trunk was not reasonably incident to appellant’s arrest. The search was not of a vehicle subject to forfeiture proceedings. There were no exigent circumstances conceivably justifying the trunk search. Accordingly, the search was illegal. (Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Preston v. United States (1964) 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.)

The judgment is reversed with directions to dismiss the indictment.