United States v. Lawless

• Citation: 465 F.2d 422
• Decision Date: 25 August 1972
• Docket Number: No. 71-2097.,71-2097.
• Parties: UNITED STATES of America, Appellee, v. William Denton LAWLESS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

465 F.2d 422 (1972)

UNITED STATES of America, Appellee, v. William Denton LAWLESS, Appellant.

No. 71-2097.

United States Court of Appeals, Fourth Circuit.

August 25, 1972.

R. R. Ryder, Richmond, Va., on brief, for appellant.

Brian P. Gettings, U. S. Atty., and Raymond A. Carpenter, Asst. U. S. Atty., on brief, for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.

PER CURIAM:

Convicted of failure to register possession of a firearm under the National Firearms Registry and Transfer Record Act,¹ the defendant has appealed, claiming error in the admission of the gun, which was the subject of the prosecution, and which it was asserted was seized as a result of an unlawful search.²

The search, in the course of which the gun was discovered, was actually initiated and primarily carried on by defendant's wife, apparently out of her concern for her own safety. She and her husband, the defendant, were living in a trailer home. On the night the gun was discovered, she and the defendant had had a violent argument, during which she claimed the defendant had assaulted her. She went before the magistrate and swore out a warrant charging the husband with assault. There was some discussion between the wife and the magistrate about the presence of a sawed-off shotgun owned by the defendant, and in the trailer but no search warrant was issued by the magistrate. When the officers went to the trailer home to arrest the defendant under the arrest warrant, she accompanied them. After the arrest was made, the wife began, at her own instance, a search of the trailer for the gun. An officer accompanied her but the wife was the prime actor in the search. She began her search by looking behind the refrigerator in the trailer where she said the gun was normally stored. Not finding the gun, the wife, feeling that perhaps the defendant had hidden the gun in the trunk of one of their cars, rushed outside to search the cars. The officer followed, though again the primary role was that of the wife. No gun was found in the cars. At that point, the officer looking at eye-level into the trailer observed the gun under a sofa in the trailer. The wife and officer retrieved the gun from under the sofa and the officer took it to police headquarters for subsequent use as evidence.

It is obvious that this search was initiated not simply with the consent, but actually on the initiative, of the wife. At no point did the officer take the lead in, or direct the search. In general, he did little more than accompany the wife as she conducted her own search. It was only by chance that, in the course of accompanying the wife in her search, the officer espied the gun. Under these circumstances, the search did not violate any constitutional principles. Coolidge v. New Hampshire (1971) 403 U.S. 443, 487-490, 91 S.Ct. 2022, 29 L.Ed.2d 564. In the cited case, the search, found valid by the Court, was with the consent...