United States v. Chalk

• Decision Date: 06 May 1971
• Docket Number: No. 14711.,14711.
• Citation: 441 F.2d 1277
• Parties: UNITED STATES of America, Appellee, v. Victor CHALK, Jr. and Preston Eugene Dobbins, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

441 F.2d 1277 (1971)

UNITED STATES of America, Appellee, v. Victor CHALK, Jr. and Preston Eugene Dobbins, Appellants.

No. 14711.

United States Court of Appeals, Fourth Circuit.

Argued January 4, 1971.

Decided May 6, 1971.

James E. Ferguson, II, Charlotte, N. C. (Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., and Robert Harrell, Asheville, N. C., on brief), for appellants.

Bruce B. Briggs, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee.

Robert Morgan, Atty. Gen. of North Carolina, and T. Buie Costen and Andrew A. Vanore, Jr., Asst. Attys. Gen., of North Carolina, on brief, for amicus curiae.

Before HAYNSWORTH, Chief Judge, and CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

On September 29, 1969, after a battle between police officers and black students at the Asheville High School, the mayor of Asheville, North Carolina, issued a proclamation that a state of emergency within the meaning of North Carolina General Statutes § 14-288.1(10) existed within the City of Asheville. Under the authority of Asheville City Ordinance No. 613, enacted pursuant to North Carolina General Statutes § 14-288.12, the mayor's proclamation banned possession off one's own premises of dangerous weapons, explosives, or ammunition; banned all marches, parades, assemblies, or demonstrations on public property; and banned the sale of and consumption (off one's own premises) of alcoholic beverages. A short time later the mayor issued a second proclamation imposing a curfew from 9 p. m. to 6 a. m. The state of emergency was redeclared and the night-time curfew reimposed each day until terminated by the mayor on October 2, 1969.

At approximately 11 p. m. on September 30, 1969, an automobile driven by Victor Chalk, owned by Preston Dobbins, and in which Dobbins was riding as a passenger, was stopped by Highway Patrol Officer Jennings at an intersection within the Asheville city limits. Chalk and Dobbins were placed under arrest for curfew violation. As Chalk stepped out of the automobile, Jennings saw what appeared to be the butt end of a shotgun partially covered by some papers on the floor behind the front seat. He reached into the automobile and pulled out the stock and trigger mechanism of a 12-gauge shotgun. After Chalk and Dobbins were placed in custody, a further search of the interior of the automobile by Jennings and other police officers revealed the barrel of the shotgun beneath the papers on the floor, one 12-gauge shotgun shell on the back seat, and a roll of dynamite fuse in the glove compartment.

Chalk, Dobbins, and Dobbins' automobile were taken to the Asheville police station. A search of Dobbins at the police station produced four 12-gauge shotgun shells, two in each sock. Local and state police officers, joined by Federal Agent McGuire of the Alcohol, Tobacco and Firearms Division, conducted a thorough search of Dobbins' automobile. Five dynamite caps were found in a glasses case in the glove compartment. Among the items discovered in the trunk were a quart of charcoal lighter fluid, a soft-drink bottle, a book of matches, a bar of soap, a piece of cloth, and a paper bag containing particles of gunpowder. The items found in Dobbins' automobile formed the basis for Chalk and Dobbins' arrest, indictment, and subsequent conviction for possession of a firearm, i. e., a combination of materials from which an incendiary bomb could be readily produced and which were intended for such use, absent the registration required by 26 U.S.C. § 5841 in violation of 26 U.S. C. § 5861(d).¹

The only issue presented for review is appellants' claim that they are entitled to acquittal or a new trial because the evidence seized from Dobbins' automobile should have been suppressed.

I.

They contend first that the search of the automobile was contrary to the Fourth Amendment prohibition against unreasonable searches and seizures. At the time of the search, the Asheville police had in their possession a search warrant issued by a state superior court judge under the authority of North Carolina General Statutes § 14-288.11, which authorized the search of all vehicles entering or approaching Asheville for weapons. We need not consider appellants' arguments that the affidavit on which the warrant was obtained was insufficient, that the warrant unlawfully authorized general searches, or that Dobbins' automobile was not "entering or approaching the City of Asheville" as the warrant specified. Assuming the warrant invalid, the search was amply supportable on a theory of probable cause which itself was sufficient to make this automobile search an entirely reasonable one. Boone v. Cox, 433 F.2d 343 (4th Cir. 1970).

Because of its mobility, a search of an automobile without a warrant is reasonable if it is based on probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). If there is probable cause to search the automobile at the place where it was stopped, it matters not that the search is conducted sometime later after the automobile has been transported to the police station. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 419 (1970).

The mayor's proclamation declaring a state of emergency made appellants' possession of a shotgun and ammunition a misdemeanor. At the time of Chalk's arrest, the butt of the shotgun was in the plain view of the arresting officers and thus subject to seizure. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). We think the discovery of the stock of the shotgun entitled the arresting officers to conclude that the automobile probably also contained the shotgun barrel and ammunition. When the second search was conducted at the police station, the searching officers knew that the car had already been found to contain a shotgun, a shotgun shell, and a roll of dynamite fuse. They also knew Dobbins had concealed shotgun shells in each of his socks. Clearly they had probable cause to search the car for additional weapons or explosives.

II.

Appellants contend alternatively that the search was unlawful because it was triggered by the mayor's overbroad and unlawful restrictions (specifically, the curfew). Appellants' attack is two-pronged: (1) that the statutory scheme authorizing the mayor's declaration of a state of emergency is vague and sweeps overbroadly into areas of constitutionally protected activity; and (2) that there was an insufficient threat to public safety to allow the mayor to impose the restrictions that he did.

We think the challenge to the constitutionality of the statutory scheme is without merit. "Control of civil disorders that may threaten the very existence of the State is certainly within the police power of government." Stotland v. Pennsylvania, 398 U.S. 916, 920, 90 S.Ct. 1552, 1555, 26 L.Ed.2d 83 (1970) (Douglas, J. dissenting from the dismissal of an appeal for lack of a substantial federal question). North Carolina General Statutes defines "state of emergency" as: "The condition that exists whenever, during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent." N. G.Gen.Stat. § 14-288.1(10). The mayor's power to impose the restraints enumerated in North Carolina General Statutes § 14-288.12 and Asheville City Ordinance No. 613² is subject to a "narrow, objective, and definite standard." Shuttlesworth v. Birmingham, 394 U. S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Only when local law enforcement is no longer able to maintain order and protect lives and property may the emergency powers be invoked.

The standard is essentially the same as that which applies to the executive's inherent power to restore order through the use of the military. See Luther v. Borden, 48 U.S. (7 How.) 1, 2, 12 L.Ed. 581 (1849); Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932); Note, Judicial Control of the Riot Curfew, 77 Yale L.J. 1560, 1566-68 (1968). Attempting to precisely define under what specific conditions each of the authorized restrictions might be imposed would destroy the "broad discretion" necessary for the executive to deal with an emergency situation. Sterling, supra at 398, 53 S.Ct. 190, 77 L.Ed. 375. Appellants' argument that a mayor might use his emergency powers to unnecessarily infringe upon fundamental constitutional rights is unfortunately true, but affords no leverage for decision. "All power may be abused if placed in unworthy hands." Luther, supra, 48 U.S. at 44. The courts cannot prevent abuse of power, but can sometimes correct it.

III.

The invocation of emergency powers necessarily restricts activities that would normally be constitutionally protected. Actions which citizens are normally free to engage in become subject to criminal penalty. A curfew, like ordinances restricting loudspeaker noise and limiting parade permits, doubtless has an incidental effect on First Amendment rights. The standard that has developed where regulation of conduct has an incidental effect on speech is that the incidental restriction on First Amendment freedoms can be no greater than is essential to the furtherance of the government interest which is being protected. See, e. g., United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L. Ed.2d 672 (1968). The limitation on the use of emergency powers by the executive is essentially the same. The declaration of a state of emergency and the restrictions imposed pursuant to it must appear to have been reasonably necessary for the preservation of order. See Note, Judicial Control of the Riot Curfew, 77 Yale L.J. 1560, 1568 (1968).

It is clear that the executive's decision that civil control has broken down to the point...