409 F.2d 299 (8th Cir. 1969), 19209, Klingler v. United States

Docket Nº:19209.
Citation:409 F.2d 299
Party Name:Ralph Leroy KLINGLER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 03, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 299

409 F.2d 299 (8th Cir. 1969)

Ralph Leroy KLINGLER, Appellant,


UNITED STATES of America, Appellee.

No. 19209.

United States Court of Appeals, Eighth Circuit.

April 3, 1969

Page 300

[Copyrighted Material Omitted]

Page 301

Marvin D. Keller, Sioux Falls, S.D., for appellant.

Gene R. Bushnell, Asst. U.S. Atty., Sioux Falls, S.D., for appellee; Harold C. Doyle, U.S. Atty., Sioux Falls, S.D., with him on brief.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Ralph Leroy Klingler was convicted of violating 15 U.S.C. § 902(e), a section of the Federal Firearms Act which prohibits a former convict, such as Klingler was proven to be, from transporting a firearm in interstate commerce. Appellant Klingler urges reversal on grounds that: (1) the trial court erred in denying his motion to suppress the firearm in question as evidence because it was the fruit of an illegal search of an automobile in which he had been a passenger; and (2) the trial court, contrary to the mandate of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), erred in allowing an agent for the Alcohol and Tobacco Tax Division of the Treasury Department to testify with regard to inculpatory statements made by Klingler during a custodial interrogation. The rulings of the trial court were correct. We affirm the conviction.


Shortly after 4:00 A.M. on May 17, 1967, Officer Kisecker of the Sioux Falls, South Dakota, Police Department was advised via police radio that a bandit wearing sunglasses, a green jacket, and needing a shave had held up a Sioux Falls service station earlier that morning. The prime suspect was one of two occupants of a 1955 or 1956 white and brown Pontiac, which bore Minnesota license plates and had two metal construction

Page 302

helmets visible through the rear window.

At about 5:00 A.M., Officer Kisecker, while driving a patrol car on routine duty, observed two men in an automobile parked in a private parking lot in Sioux Falls. As Kisecker passed the parking lot, the automobile began to move. The officer turned his car around and stopped the suspects. Their vehicle, a 1957 white and salmon or coral Pontiac bearing South Dakota license plates, contained two metal construction helmets visible through the rear window. Kisecker asked the occupants of the vehicle, Klingler, a front-seat passenger, and Albert Mager, the driver, to get out.

Klingler and Mager each produced driver's licenses as identification and stated that they were from Huron, South Dakota, that they were looking for employment in Sioux Falls, that they had driven all night and had arrived in the stated that they were from Huron, South had been sleeping in the automobile for about four hours. The clothing on both men was in disarray. Klingler was wearing an olive-colored waistcoat and had about a two days' growth of beard. Kisecker noted that there were sunglasses on the automobile's dashboard.

Responding to Kisecker's radio call to police headquarters, Officers Konda and Nygaard arrived in their patrol cars. Klingler and Mager were then arrested for vagrancy. 1 No attempt was made by the police officers to determine whether either suspect had money, although suitcases, personal belongings, and a box of food were in the car.

Officer Nygaard commenced a search of the Pontiac just as Mager and Klingler were being placed in separate police vehicles. Nygaard discovered a .22 caliber pistol under a ventilated cushion on the front seat. Such discovery formed the basis for the Federal Firearms Act charge against Klingler and Mager. 2


A 'seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant'. Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960); Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). In this case, if the search of the automobile and seizure of the pistol is to survive the proscription of the Fourth Amendment, it must be under the exception for searches incident to a lawful arrest. See, e.g., United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Harris v. Tahash, 353 F.2d 119 (8th Cir. 1965). The validity of such a search and seizure is dependent initially upon a lawful arrest, Draper v. United States, 358 U.S. 307, 310-314, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Mulligan v. United States, 358 F.2d 604, 606 (8th Cir. 1966), the lawfulness of which is to be determined by state law insofar as the arrest is not violative of the Constitution. Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) ;

Page 303

United States v. Di Re,332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100,89 S.Ct. 1201, 22 L.Ed.2d 474 (1969). The constitutional validity of an arrest is dependent upon the existence of probable cause. E.g., Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Under South Dakota law, a peace officer may arrest without a warrant: (1) for a public offense committed or attempted in his presence; (2) when a felony has in fact been committed, and the officer has 'reasonable cause' for believing the person arrested to have committed it; and (3) at night on 'reasonable cause' even though it afterwards appears that a felony has not been committed. S.D.Code § 34.1609 (Supp.1960).

' Reasonable cause', as used in the above statute, is equated with the Fourth Amendment's requirement of probable cause. See, e.g., Reed v. United States, 401 F.2d 756 (8th Cir. 1968); Theriault v. United States, supra. Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); see also, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Beck v. State of Ohio, 379 U.S. 89, 98, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Gullett v. United States, 387 F.2d 307, 311 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968). Fourth Amendment protection requires that courts apply an objective standard in judging the officer's conduct. That interrelationship is stated in the 'stop-and-frisk' case of Terry v. State of Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), as follows:

'* * * The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? * * * And simple "good faith on the part of the arresting officer is not enough.' * * * If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,' only in the discretion of the police.' Beck v. State of Ohio, supra, at 97, 85 S.Ct. 223 at 229.'

The details concerning a case which are furnished an officer via police radio can be taken by him as reasonably trustworthy information upon which to base his actions. Nash v. United States, 405 F.2d 1047 (8th Cir., 1969); Montgomery v. United States, supra; Theriault v. United States, 403 F.2d 605.

There was probable cause for Klingler's arrest for the felony charge of robbery. The robbery suspect was described as 'wearing a green jacket, a pair of sunglasses, and needing a shave'. Klingler was wearing an olive waistcoat, a pair of sunglasses was on the automobile's dashboard, and he had two days' growth of beard. The automobile in which Klingler was a passenger, and one of two occupants, was a 1957 white and salmon or coral Pontiac, with South Dakota plates and two metal construction helmets visible through the back window. This substantially tallied with

Page 304

the description broadcast over the police radio. The factors that would have justified Klingler's arrest for robbery compare favorably with the facts in other cases in which we have approved warrantless arrests. See, e.g., Nash v. United States, supra; Reed v. United States, supra; Kayser v. United States, 394 F.2d 601 (8th Cir. 1968), cert. denied, 393 U.S. 919, 89 S.Ct. 250, 21 L.Ed.2d 206 (1968); Clay v. United States, 394 F.2d 281 (8th Cir. 1968), cert, denied, 393 U.S. 926, 89 S.Ct. 260, 21 L.Ed.2d 262 (1968). See, for close examples, Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967); United States v. LaVallee, 367 F.2d 351 (2nd Cir. 1966). See also, Sewell v. United States, 406 F.2d 1289 (8th Cir., 1969) (criminals do change license plates). 3

Because probable cause for an arrest is determined by objective facts, it is immaterial that Kisecker, at the hearing on the motion to suppress, testified that he did not think that he had 'enough facts' upon which to arrest Klingler for armed robbery. His subjective opinion is not material. See, Terry v. State of Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A constitutional safeguard predicated on an...

To continue reading