Walter Horace Barrentine, Jr. v. United States

Ninth Circuit

Walter Horace Barrentine, Jr. v. United States

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

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 23, 1970

Docket25861_1

StatusPublished

Cited by7 cases

This text of 434 F.2d 636 (Walter Horace Barrentine, Jr. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Walter Horace Barrentine, Jr. v. United States, 434 F.2d 636, 1970 U.S. App. LEXIS 6292 (9th Cir. 1970).

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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.

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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.

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434 F.2d 636, 1970 U.S. App. LEXIS 6292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-horace-barrentine-jr-v-united-states-ca9-1970.

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