United States v. Knight

• Decision Date: 28 February 1972
• Docket Number: No. 30787.,30787.
• Citation: 451 F.2d 275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Ray KNIGHT and Bobby Gene Grubbs, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

451 F.2d 275 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Ray KNIGHT and Bobby Gene Grubbs, Defendants-Appellants.

No. 30787.

United States Court of Appeals, Fifth Circuit.

October 4, 1971.

Certiorari Denied February 28, 1972.

Melvyn C. Bruder, Dallas, Tex., for defendants-appellants.

Eldon B. Mahon, U. S. Atty., Andrew Barr, Charles D. Cabaniss, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Before AINSWORTH, INGRAHAM, and RONEY, Circuit Judges.

Certiorari Denied February 28, 1972. See 92 S.Ct. 1171.

RONEY, Circuit Judge.

This is an appeal by defendants, Bobby Gene Grubbs and Bobby Ray Knight, from convictions under 18 U.S.C. § 659 for knowingly possessing 566 cases of stolen Chrysler spark plugs which had been taken from the Yellow Freight System terminal in Dallas, Texas, while the shipment was moving in interstate commerce from Toledo, Ohio, to Dallas.

The defendants contend (1) that evidence admitted against them was the fruit of an illegal search and seizure, (2) that the indictments were defective and that there was a variance between indictment and proof, (3) that the evidence was insufficient to show that defendants possessed the goods or that they knew the spark plugs were stolen, (4) that the trial court improperly admitted certain documents, and (5) that the trial court gave an improper instruction. We affirm.

On November 24, 1969, at Toledo, Ohio, Champion Spark Plug Company delivered 566 cases of spark plugs to the Yellow Freight System, an interstate freight carrier, for delivery to Chrysler Corporation in Dallas, Texas. After the goods arrived at the Yellow Freight System terminal in Dallas, they were unloaded on November 27, 1969, and thereafter loaded on another trailer for city delivery. After loading, the trailer was moved from the dock to a parking area within the terminal's enclosed yard. A weekend intervened and the following Monday morning when the city driver went to get his tractor and trailer, they were not there. On December 5, 1969, the tractor and trailer were discovered outside Dallas with the 566 cartons of spark plugs missing.

I. Motion to Suppress

A pretrial motion to suppress was filed seeking to exclude from evidence the cartons of spark plugs and other items found at 2918 Klondike on the ground that they were obtained by a search and seizure which violated the Fourth Amendment. After a hearing developed the following facts, the motion was denied.

Sergeant John Galli of the Dallas Police Department received information from an informant just before noon on December 3, 1969, that a large amount of stolen spark plugs was to be transported to the 2900 block of Klondike in Dallas. The informant had always given reliable information in the past. Sergeant Galli began a surveillance of the area by helicopter with the aid of ground units. About 4:00 P.M. that afternoon, Galli saw a pickup truck pulling a trailer going to 2918 Klondike, where the trailer was backed up to a garage and several men got out. This information was transmitted to a communication center. Officers Wade and Hackney, who were part of Galli's ground support, were dispatched to 2918 Klondike with information that there was a suspicious car with a trailer backing into a garage. Before beginning the air surveillance, Galli had told Hackney that they would be working together in a matter involving the theft of some spark plugs.

As Hackney and Wade drove up in front of 2918 Klondike in a marked police car, a man standing at the rear of the trailer yelled "Police!" and moved quickly into the adjoining house.¹ Four men ran from the garage around to the rear of the yard.² Hackney left the police car and followed these men. Wade, after radioing Knight's description, walked toward the garage. As he approached, and before he entered the garage, he saw a man standing in the garage and he also saw a number of cartons with the words "Chrysler Spark Plugs" on them. The man in the garage was L. B. Luckett, the owner of the premises, who was not charged with any criminal violation arising from this matter.

Wade went into the garage and asked Luckett his name and who the spark plugs belonged to. Luckett replied that he was buying the spark plugs. Wade then saw cartons in the trailer marked "Chrysler Spark Plugs."

Meanwhile, the flight of the four men had been impeded by a fence beyond which was Luckett's big German shepherd dog. Hackett approached and talked with them. Wade and Luckett joined them shortly and Luckett identified the four as the men from whom he was purchasing the spark plugs. The four and Luckett were then placed under arrest. Thereafter, the police seized the stolen goods and reloaded the truck. A police officer also retrieved work gloves which had been thrown into the area occupied by the dog. The gloves were introduced in evidence as having been worn by all defendants except Knight.

The basic contention of the defendants is that prior to the intrusion by police on Luckett's property probable cause did not exist to justify either a search incident to an arrest or a search of a vehicle independent of an arrest. This argument is based on the theory that it was illegal for officers Wade and Hackney to be on Luckett's property when matters developed which gave them probable cause for arrest and for seizure of what to them was then in plain view.³ It becomes unnecessary for us to decide whether or not probable cause for arrest or search existed prior to entry on the property because we hold that the officers were not improperly on the property.

The entry upon Luckett's property, even if made without probable cause, does not necessarily constitute a trespass. When the performance of his duty requires an officer to enter upon private property, his conduct, otherwise a trespass, is justifiable. Giacona v. United States, 257 F.2d 450 (5th Cir. 1958), cert. den., 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104; Foster v. United States, 296 F.2d 65 (5th Cir. 1961); United States v. Sterling, 369 F.2d 799 (3d Cir. 1966). Here the original tip plus the sighting from the air dictated a police investigation to determine whether stolen goods were being transported. Under the circumstances an entry onto the property for the purpose of making a general inquiry was justifiable.

Moreover, even if the officers were trespassing on private property, a trespass does not of itself constitute an illegal search. Atwell v. United States, 414 F.2d 136 (5th Cir. 1969); Monnette v. United States, 299 F.2d 847 (5th Cir. 1962); United States v. Young, 322 F. 2d 443 (4th Cir. 1963); Giacona v. United States, supra; cf. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Nothing in the officers' conduct when they entered the property can be considered a search. Officer Wade, without his gun drawn, walked to the site of human activity, which was the garage adjoining the residence. Prior to entering the garage, he saw the Chrysler Spark Plugs cartons. This, however, was not a search since the cartons were in plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Capps, 435 F.2d 637 (9th Cir. 1970). Similarly since Wade did not enter or open the trailer, but merely looked into it and saw "Chrysler Spark Plugs" within his vision, there was no search of the trailer at that time. The plain view rule also applies to the work gloves which had been thrown in with the dog.

United States v. Davis, 423 F.2d 974 (5th Cir. 1970), cert. den., 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69, does not require a contrary result. In that case, following an afternoon assault by shooting at an FBI agent at the defendant's house, FBI agents returned that night to the property without a warrant to search for the gun, which was found on defendant's premises. This court held that the plain view rule did not apply and that the gun was found as a result of an illegal search. The crucial difference between Davis and the situation here is that in Davis the agents went on the property for the express purpose of searching for the gun, whereas, here, no such purpose was present.⁴Davis stated that the main consideration in applying the plain view rule "is to determine whether the observing officer had `a right to be in the position to have that view'." Id. at 977; see also United States v. Morales, 440 F.2d 1332 (5th Cir. 1971). Officer Wade did have a right to be where he was when he saw the cartons of Chrysler Spark Plugs.

The stolen goods, having been seen by the officer, were subject to seizure.

"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States, supra, 390 U.S. at 236, 88 S.Ct. 993.

II. Sufficiency of Indictment and Variance

Defendants contend that the indictment⁵ did not state an offense under 18 U.S.C. § 659⁶ because the indictment did not specify one of the interstate facilities or carriers set forth in § 659. The argument is that since the indictment only stated that the goods were taken from the Yellow Freight System terminal no offense was charged because "terminal" is not set forth in § 659. A similar contention was rejected in United States v. D'Antonio, 342 F.2d 667 (7th Cir. 1965), where it was argued that an indictment charging theft from "a dock of Day's Transfer" did not state an offense within § 659 because the word "dock" was not specified in that section. The court said that:

"In the case at bar, we find no significant difference between the meaning of the word `dock\' on one hand, and any of the words `station\', `platform\' or `depot\', on the other hand. We therefore hold that the allegation of the indictment as to the word `dock\' refers to a facility set forth in § 659 and we cannot sustain defenda

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