409 F.2d 1055 (10th Cir. 1969), 177-68, United States v. Humphrey

Docket Nº:177-68, 178-68.
Citation:409 F.2d 1055
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ray Charles HUMPHREY, a/k/a Ray Humphrey, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hiawatha MICKENS, Defendant-Appellant.
Case Date:April 16, 1969
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1055

409 F.2d 1055 (10th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ray Charles HUMPHREY, a/k/a Ray Humphrey, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Hiawatha MICKENS, Defendant-Appellant.

Nos. 177-68, 178-68.

United States Court of Appeals, Tenth Circuit.

April 16, 1969

Page 1056

John E. Green, Oklahoma City, Okl. (B. Andrew Potter, U.S. Atty., with him on the brief), for plaintiff-appellee.

Gary D. Baer, Oklahoma City, Okl., for defendants-appellants.

Before MURRAH, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

In this case Appellants jointly appeal from a sentence on a jury verdict convicting them of violating Section 902(e) of Title, 15, United States Code, by transporting firearms in interstate commerce having previously been convicted of a felony. The sole issue raised on appeal is whether the search which discovered the firearms in Appellant Humphrey's automobile was legal.

On March 6, 1968, at about 10:30 p.m. Officers Acox and Schimmels of the Oklahoma City Police Department observed an automobile, with out-of-state license tags, violate a city traffic ordinance. The officers pursued, turning on the patrol car's flashing red light. Immediately the officers both observed Appellant Mickens, a passenger in the right front seat, motion with his hands as though putting something under the seat as the automobile came to a stop. Officer Acox approached the driver's side and met the driver, Emery, who had gotten out of the car. Emery identified himself, produced his drivers license and was immediately searched. The search produced several money orders found in his shirt pocket in a name other than Emery.

While this transpired, Officer Schimmels approached the other side of the car, asked passengers Mickens and Humphrey to get out and he 'frisked' them. No weapons or contraband of any sort were found on either Mickens or Humphrey. Mickens and Humphrey were then asked to step to the rear of their car where Officer Acox was standing with Emery. Officer Schimmels then looked under the right front seat with a flashlight and found a revolver. Further search also disclosed another revolver under the left front seat.

The driver, Emery, had been arrested for the traffic violation prior to the search. 1 After the discovery of the weapons Mickens and Humphrey were arrested for possession of firearms in violation of a city ordinance. All three were then placed in the rear of the patrol car and, according to the officers, given the Miranda warnings. No statements were made in the patrol car. Before leaving the scene, Emery requested permission to get his jacket out of the trunk and opened the trunk in the presence of Officer Acox. When Emery removed his jacket, the officer saw a shotgun and confiscated it.

At the police station, again according to the officers, the prisoners were each reminded of their Miranda rights and then willingly interrogated. On interrogation, the prior felony convictions of Mickens and Humphrey came out and further statements were made as to who owned which weapon. Federal officers were called in an admittedly advised Mickens and Humphrey of their Miranda rights, whereupon both made further statements relating to the ownership of the weapons.

After the trial began, defense counsel moved to suppress all evidence as the fruits of an illegal search and seizure and, in the exercise of his discretion, the trial judge considered the motion and all...

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