465 F.2d 620 (D.C. Cir. 1972), 71-1754, United States v. Green

Docket Nº:71-1754.
Citation:465 F.2d 620
Party Name:UNITED STATES of America v. Harry GREEN, Appellant.
Case Date:June 28, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 620

465 F.2d 620 (D.C. Cir. 1972)

UNITED STATES of America

v.

Harry GREEN, Appellant.

No. 71-1754.

United States Court of Appeals, District of Columbia Circuit.

June 28, 1972

Argued April 18, 1972.

Rehearing Denied Aug. 4, 1972.

Mr. Stanley O. Sher, Washington, D. C., with whom Mr. Alan S. Davis, Washington, D. C. (both appointed by the Court), was on the brief, for appellant.

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Mr. Robert Alan Jones, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry and Roger E. Zuckerman, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT, TAMM and WILKEY, Circuit Judges.

TAMM, Circuit Judge:

This appeal follows from a conviction for carrying a pistol without a license in violation of D.C.Code § 22-3204. Appellant asserts that his Fourth Amendment rights were violated in that the search of his automobile incident to a traffic arrest was unwarranted and unnecessarily broad in scope. Resolving these matters adversely to appellant, we affirm the decision of the district court.

I.

At approximately 2:00 a. m. one October evening, police officers Wells and Bolden, on routine patrol in a marked squad car, observed appellant's vehicle travelling at an excessive speed 1 on 13th and W Streets, N.W. They proceeded to follow the vehicle at a distance of approximately one car length whereupon appellant "ran a stop sign." The officers immediately turned on their flashing red dome light "in preparation of making a routine traffic stop." Prior to bringing appellant's vehicle to a halt, Officer Wells testified that when he saw appellant "his body was leaned over, and it appeared as though his arm was in front of his body, not to the side or to the rear." The officer stated that he believed appellant had moved his left arm and that appellant's shoulder, elbow and forearm were visible to him. He further testified that it did not appear that appellant "was going for his wallet." Both officers testified that their immediate reaction was that appellant was armed. Officer Wells testified that he stopped the police vehicle one and one-half car lengths in back of appellant's car instead of almost immediately to the rear as is usual. He also took the added precaution of ordering appellant out and away from his car via the cruiser's public address system. The defendant did as told, leaving the car door open according to the officers, although appellant asserts it was closed. Appellant alighted from his automobile proceeding to the rear where Officer Bolden conducted a "frisk, " finding nothing. Meanwhile, Officer Wells was standing beside the cruiser with one hand on a radio and the other placed upon the butt of his undrawn revolver. Appellant produced his license, but did not have the registration card, whereupon he told Officer Bolden it may be in the glove compartment. 2 Officer Bolden then proceeded to lean inside the car from the driver's side and recover a fully-loaded pistol from underneath the driver's seat.

At a hearing on appellant's motion to suppress the government originally relied upon the "plain view" theory to justify the search. The trial court, however, stated that it disbelieved the officers' testimony and accordingly granted the motion to suppress. Shortly thereafter the government filed a motion for reconsideration. In its motion the government abandoned its theory that there was a "plain view" search and urged that the search was a protective one. The trial court thereupon reversed itself, denying the motion to suppress, and holding the search valid.

II.

The Fourth Amendment proscription against unreasonable searches and seizures bans warrantless searches with certain exceptions. The exception relevant to our instant inquiry, search incident to arrest, is justified when used to remove any weapons the arrestee might seek to use in order to resist arrest or effect his escape; or when used to seize the fruits, implements or evidence

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of the crime for which the arrestee is seized in order to prevent its destruction. Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Sanction of searches incident to arrest, however, "does not mean that [the person arrested] is subject to any and all searches that the arresting officer may wish to conduct." United States v. Mills, No. 22, 444 sl. op. 5 (D.C.Cir. May 10, 1972) (en banc). "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The touchstone both as to whether the search is warranted and the propriety of its scope remains reasonableness. Although it is clear that an automobile is entitled to less privacy than a home under the Fourth Amendment, Chambers v. Maroney, 399 U.S. 42, 48-51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the law with regard to a search incident to an arrest for a traffic violation remains unsettled. 3 The Supreme Court left the question open in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and not unexpectedly the federal and state courts have set forth divergent views.

In a clear, scholarly analysis in another case, Judge Wright has delineated two categories of traffic arrests-"pure" and "special circumstances." 4 The "pure" traffic situation is one in which mere routine procedures are undertaken by the officer to ticket the offender. 5 In this category several courts have stated that there is no right to search, relying upon the theory that since there are no fruits, instrumentalities or evidence to be gathered from a traffic arrest there can be no search incident thereto. E. g., Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968) (dictum); People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970) (en banc). See cases collected in Annotation, Lawfulness of Search of Motor Vehicle Following Arrest for Traffic Violation, 10 A.L.R.3d 314 (1966) and B. George, Constitutional Limitations on Evidence in Criminal Cases 70 (1969). Other courts have, however, implied or stated in broad terms, often without exposition or explanation, that there is a right to search incident to a traffic arrest. E. g., Sumrall v. United States, 382 F.2d 651 (10th Cir. 1967);

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Welch v. United States, 361 F.2d 214 (10th Cir. 1966); Watts v. State, 196 So.2d 79 (Miss.1967); Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2270, 20 L.Ed.2d 1387 (1968); State v. Coles, 20 Ohio Misc. 12, 249 N.E.2d 553 (1969); See cases collected in Simeone, Search and Seizure Incident to Traffic Violations, 6 St. Louis U.L.J. 506, 512 n. 35 (1961); Note, Search and Seizure-Search Incident to Arrest for Traffic Violation, 1959 Wis.L.Rev. 347, 357 n. 56. Since the ramifications of a search incident to a "pure" traffic arrest are presently under consideration by this court in United States v. Robinson, we need not mediate this dispute here.

The second category of traffic arrest is that involving "special circumstances." In such situations there are special circumstances which alert the officer or create in him a reasonable apprehension of danger. Courts have consistently held that in such circumstances a search is permissible. 6 Among the many special circumstances recited by Judge Wright in Robinson is the situation in which an "officer notes a suspicious movement by one of the car's occupants as he makes his approach." 7

In the case at bar we note that although the traffic arrest may have begun as a "pure" or routine one, it ceased to be such when the officers, observing the furtive movements by the occupant of the vehicle, became reasonably fearful of danger. The testimony of the officers and the precautionary action taken by them clearly indicates their apprehension of harm. According to the testimony the officers stopped their scout car further back than normal. In addition, contrary to usual procedure, appellant was ordered out and away from the car via a public address system. Moreover, one officer put a hand on his revolver while holding the radio in the other hand.

While these facts demonstrate fear on the part of the officers, this is not sufficient for our purposes. The fear must be a reasonable one. As the Supreme Court has stated, "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 search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. Of course the conduct must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training, Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962), for "[c]onduct innocent in the eyes of the untrained may carry entirely different 'messages' to the experienced or trained observer." 8 Davis v. United States, 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460 (1969).

Having considered the totality of facts and circumstances, United States v. Davis, 147 U.S.App.D.C. 400, 458 F.2d 819 (1972), we are of the view that the officers' fear was reasonable. Confronted with a speeding vehicle running a stop sign at 2:00 a. m., they observed the driver making furtive movements as though pulling something out of his belt and placing it under his seat. We believe this is a sufficient basis upon which to uphold the limited...

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