United States v. Bozada

• Decision Date: 18 January 1973
• Docket Number: No. 71-1727.,71-1727.
• Citation: 473 F.2d 389
• Parties: UNITED STATES of America, Appellee, v. Joseph A. BOZADA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

473 F.2d 389 (1973)

UNITED STATES of America, Appellee, v. Joseph A. BOZADA, Appellant.

No. 71-1727.

United States Court of Appeals, Eighth Circuit.

Submitted November 15, 1972.

Decided January 18, 1973.

Certiorari Denied May 7, 1973.

Daniel P. Reardon, St. Louis, Mo., for appellant.

Roger A. Pauley, Atty., Dept. of Justice, for appellee.

Before MATTHES, Chief Judge, and MEHAFFY, GIBSON, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges, sitting en banc.

Certiorari Denied May 7, 1973. See 93 S.Ct. 2161.

STEPHENSON, Circuit Judge.

Defendant Joseph A. Bozada appeals from his jury conviction of the charge of unlawful possession of goods which had been stolen from a motor vehicle while moving in interstate commerce in violation of Title 18 U.S.C. § 659. During the course of the proceedings the trial court denied a motion to suppress evidence alleged to have been obtained as a result of an unlawful search and seizure. The sole question presented on this appeal is whether the police search of an unoccupied trailer unit located on a private parking lot without a warrant was in violation of the Fourth Amendment. We agree with the trial court that the search and seizure was lawful.

Sgt. Henry Llewellyn of the St. Louis Metropolitan Police Department received a telephone call from a reliable informant, that a man known to informant as "Mr. Tag" had inquired of informant as to whether he was interested in purchasing about 4400 pairs of shoes at $4.00 per pair. The Sgt. received the telephone call at his home about 8:30 p. m. on April 27, 1971. (During the proceedings below, defendant agreed and stipulated that the information given by the informant was reliable and that probable cause for search existed.) The following morning Tag told informant to meet him at 2:00 p. m. at a designated place and they would be shown the shoes. Llewellyn observed the meeting area through binoculars and saw informant and two other men leave the area about 2:45 p. m. About 4:00 p. m., Sgt. Llewellyn, then back at his office, received a telephone call from the informant indicating that he had received a pair of shoes from a trailer. Llewellyn then met with the informant and obtained the box of shoes. From information contained on the box Llewellyn learned that the shoes were a part of a military shipment from the International Shoe Company destined for Okinawa. They were supposed to have been shipped about January 27, 1971. Informant stated that the name on the trailer was "Bozada" and that the defendant was present when informant obtained the shoes. After Llewellyn ascertained that the shoes were probably "hot", informant made another call to Tag and was instructed to bring $16,000 to Tag's office. He was also advised that shortly, the shoes would be moved to another location where informant was to pick them up.

Llewellyn and informant then drove to the private parking lot where the trailer was parked, arriving at about 4:50 p. m. Informant pointed out the Bozada trailer from which the shoes were obtained. It was hooked up to a tractor and the air brakes set. It was the only trailer hooked up for movement. Another trailer was parked up against the rear end of the Bozada trailer. Llewellyn and two of his men, who had joined him at the scene, watched the tractor-trailer for about an hour. No one appeared. They then moved the tractor-trailer five or six feet to permit access to the back doors, cut the bolts on the doors, and searched the trailer. Shoes were found inside the trailer that had shipping information on the boxes matching the information on the box of shoes previously turned over by the informant. Appellant Bozada was arrested shortly thereafter at another location. The contents of the trailer were the subject of the motion to suppress.

Sgt. Llewellyn testified that he did not attempt to secure a search warrant because of the information he had received concerning the imminent movement of the shoes to another location, plus the difficulties of obtaining a search warrant after 5 p. m.

The trial court in determining that the search without a warrant was valid relied on Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and its progeny Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 419 (1970); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L. Ed. 629 (1931). Appellant, on the other hand, urges that Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed.2d 564 (1971) controls for the reason that in the instant case, although there was probable cause, there existed no exigent circumstances sufficient to justify the police in searching without a warrant.

It is our view that Coolidge, supra, is readily distinguishable. In Part II-B (403 U.S. 443, 458-464, 91 S.Ct. 2022) Mr. Justice Stewart¹ emphasized that exigent circumstances sufficient to justify a warrantless search simply did not exist.² Coolidge's car was regularly parked in the driveway of his house, he was arrested inside the house, he had no access to the automobile after the police arrived on his property, the Coolidge property was under the guard of two other officers, the police had known for some time of the probable role of the car in the crime, and the automobile was not then being used for any illegal purpose.

In the matter at hand, exigent circumstances did exist. The trailer was being used for an unlawful purpose — to transport stolen shoes, reliable information indicated that it was about to be moved, the tractor-trailer unit was hooked up ready for movement, the owner of the vehicle was not in custody, and there were others who appeared to be involved who were at large.

As we read Coolidge, Carroll and its progeny remain viable.³ The automobile exception continues but not under every conceivable circumstance. Exigent circumstances must exist before a warrantless search may be made. A pressing need for a prompt search must be reasonably apparent. United States v. Menke, 468 F.2d 20 (CA3, 1972); United States v. Vivero, 465 F.2d 141, 143-144 (CA9 1972); United States v. Ellis, 461 F.2d 962, 966-967 (CA2, 1972).

In short, we are convinced that exigent circumstances amply justified the warrantless search that was made of the trailer in question. The opportunity to search was fleeting. Movement of the trailer appeared imminent. We are not impressed with the notion that a stakeout or limited seizure of the trailer should have been made while a search warrant was being procured. That could well pose more problems than it would solve. In Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. at 1981, the Supreme Court observed:

"For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment."

We are satisfied that the search in this case meets the test of reasonableness. See, e. g., Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777 (1964).

Affirmed.

LAY and HEANEY, Circuit Judges (dissenting).

We respectfully dissent.

"* * * The most basic constitutional rule in the search and seizure area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.' The exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' `The burden is on those seeking the exemption to show the need for it.' * * *". Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (Footnotes omitted.). In our view, the government has failed to sustain its burden.

The truck was, of course, mobile but this fact alone is insufficient to justify a warrantless search.¹ As Mr. Justice Stewart said in Coolidge:

"* * * If Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, permits a warrantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extension of Carroll. * * *"²

Id. at 461 n. 18, 91 S.Ct. at 2035.

Nor would the fact that the police had probable cause to believe that the truck contained stolen goods justify the warrantless search. Most vehicles which the police have probable cause to search contain evidence of a crime. Thus, to allow warrantless searches on this basis would swallow the warrant requirement in its exception — a result clearly not contemplated by the Coolidge Court.

Of course, if the vehicle were being used at the time of the search for an illegal purpose, no warrant would be required. Coolidge v. New Hampshire, supra 403 U.S. at 463 n. 20,³ 91 S.Ct. 2022. But, the term "being used" requires that someone be in or at the vehicle at the time that the search is carried out. If this were not the case, then the Court would have upheld the search in Coolidge because the police carrying out that search had good reason to believe that the vehicle contained evidence of a crime.⁴

It has been suggested that the Court, in Coolidge, distinguished between vehicles containing mere evidence and those containing stolen goods or contraband, and that it would deny the right to search a parked vehicle for the former and would sustain the right to search such a vehicle for the latter. It is clear, however, from Warden v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 1647, 18 L. Ed.2d 782 (1967), that such a distinction has no constitutional basis:

"Nothing in the language of the Fourth Amendment supports the distinction

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