United States v. Edwards

• Decision Date: 06 April 1971
• Docket Number: No. 29603.,29603.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 749 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Albert EDWARDS, Defendant-Appellant.

No. 29603.

United States Court of Appeals, Fifth Circuit.

April 6, 1971.

H. L. Cole, Bennett & Moon, Jim T. Bennett, Jr., Valdosta, Ga., for appellant.

Wiliam J. Schloth, U. S. Atty., Walker P. Johnson, Jr., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for appellee.

Before BELL, DYER and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Albert Edwards was convicted in a non-jury trial of unlawfully possessing and transporting non-tax paid whiskey. 26 U.S.C. 5205(a) (2) and 5604(a). The sole question on this appeal is whether the District Court improperly denied a motion to suppress evidence of the three 5-gallon containers of whiskey found in the trunk of defendant's automobile. Holding the search of the automobile trunk and the seizure of the contraband whiskey to be reasonable in constitutional terms, we affirm.

There is no doubt in this record that defendant was guilty of the crime charged. Likewise there is no doubt that he would not have been detected in the crime, much less convicted, if the challenged search had not been made.

It is well established that neither the evidence found in an illegal search, nor the knowledge acquired from such a search, can be used legally in enforcing the law. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), reh. den., 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Since 1914, the Supreme Court has held that such evidence obtained by federal officers cannot be used in federal courts, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and in 1960 the Court ruled that such evidence obtained by state officers, as in the case at bar, cannot be used in federal prosecutions. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960).¹ The evidence is not excluded because it is untrustworthy or lacks credibility, but simply because it was obtained in violation of the Constitution. The exclusionary rule has nothing to do with the reliability of the fact finding process in determining guilt or innocence. It is simply a means of making effective the Fourth Amendment protection against unreasonable searches and seizures. "Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it." Elkins v. United States, supra, 364 U.S. p. 217, 80 S.Ct. p. 1444; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

A brief review of the undisputed facts readily reveals that there would be nothing in this record with which to charge defendant or to convict him of this crime if the court should have suppressed the use of the knowledge and evidence disclosed by the search.

About 9 P.M. on the evening of September 8, 1969, Officer Robert Belflower of the Georgia State Patrol was driving east on Georgia Highway 32 away from Ocilla, Georgia. He met a 1961 Pontiac automobile traveling towards town about 70 miles per hour. Because the speed limit was 50 miles per hour, Officer Belflower turned around and gave chase. The Pontiac, driven by defendant, began to go faster and faster and the officer turned on his siren and light.

By the time they were getting close to Ocilla they were "running" 110 miles per hour, and at the city limits sign, where the speed limit is 35, the defendant was going about 90. Not too far inside the city limits, the defendant "dragged his brakes a pretty good piece" trying to make a turn onto Roosevelt Street. However, he missed the turn, ran partially off the pavement, and brought his car to a stop. The tail end of the car was on the pavement, the front end about two feet from a ditch.

Then Edwards jumped from the car, leaving the lights burning and the engine running, and fled on foot. Officer Belflower chased him a short way, gave him a chance to stop, and then went back to the car. He switched off the engine, called for assistance from the sheriff's office, made a general inspection of the car, and then took the key from the ignition and opened the trunk. There he found the incriminating whiskey.

Belflower knew Edwards, recognized him, thought the car belonged to him, and was not aware that he had committed any crimes on this occasion, except those which occurred in his presence from the start to the finish of the three mile race. The officer testified that he followed normal procedure in examining the vehicle as follows:

"Q Why did you turn the motor off and why did you do these things?

A Because he abandoned the car and I wanted to see what I had and just take inventory of what I had and make an attempt to find out whose it was, how to go about — of course I know who it was in this particular case, but that\'s just normal. After they abandon the car we do find out, we do look in the car."

Edwards was arrested the following day at the courthouse in Ocilla, where he was employed.

Under these circumstances, we hold that Officer Belflower's opening the trunk of Edwards' automobile was not an unreasonable search prohibited by the Fourth Amendment to the Constitution.² This case is controlled by the decision on the legality of the search, there being no question as to the propriety of the seizure, if the search was lawful. Untaxed whiskey is contraband, the very possession of which is illegal, so that the law enforcement authorities are entitled to seize and not return it, wherever found, regardless of constitutional requirements. 26 U.S.C.A. § 5613 (a) and § 5613(b); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

Like any rule of law that depends for its application upon a test of "reasonableness," the law of search and seizure cannot be applied with mathematical precision. The nuances of seemingly comparable facts often lead to divergent results, most being sound, but producing a variety of legal opinions which tend to leave the law in apparent disarray. Modern courts find as much difficulty in ascertaining the reasonable search as their common law predecessors encountered in the search for the reasonable man. It is sometimes impossible to clothe a particular search with the armor of specific precedent, even though "reasonable" beyond question. Such a case we have here.

A bilateral approach to this search reveals legality on two grounds. First, considering the case from the defendant's point of view, we find that by abandonment he had no Fourth Amendment right to be secure against this kind of search, at the time it was made. Second, from the Government's standpoint, we find that the search reasonably balanced the interest of the state with the defendant's civil rights in this situation.

I.

Defendant's right to Fourth Amendment protection came to an end when he abandoned his car to the police, on a public highway, with engine running, keys in the ignition, lights on, and fled on foot. At that point defendant could have no reasonable expectation of privacy with respect to his automobile.

This Court has previously approached the search and seizure problem from this "reasonable expectation" standpoint in holding that it is not an unconstitutional encroachment for police officers, if they are entitled to be on the property where the automobile is located and if they do not damage the automobile, to ascertain the correct vehicle identification number. United States v. Johnson, 431 F.2d 441 (5th Cir. 1970). Judge Wisdom has recently said, "The rationale for this holding is that an automobile owner can have no reasonable expectation of privacy with respect to the car's vehicle identification number," United States v. Polk, 433 F.2d 644 (5th Cir. 1970); United States v. Lowery, 436 F.2d 1171 (5th Cir. 1970).

In reasoning that "the Fourth Amendment protects people, not places," the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), hinged its decision against the Government's electronic surveillance of telephone booth conversations on the analysis that such activity "violated the privacy upon which he justifiably relied while using the telephone booth and this constituted a `search and seizure' within the meaning of the Fourth Amendment." Id. at 389 U.S. 353, 88 S.Ct. 512.

It is clear that this personal right to Fourth Amendment protection of property against search and seizure is lost when that property is abandoned.

In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), Mr. Justice Holmes referred to this principle in holding admissible in evidence the whiskey contents of certain containers discarded by defendant when pursued by revenue officers, and said:

"It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendant\'s own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned." Id. at 265 U.S. 58, 44 S.Ct. 446.

In Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), the Court held that the defendant had no constitutional protection against the search of a hotel room he had relinquished and against the seizure of articles he had there abandoned. Mr. Justice Frankfurter said:

"As such, however, it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the wastepaper basket, even though some of its contents had no connection with

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