535 F.2d 881 (5th Cir. 1976), 76-1169, United States v. Robinson

Docket Nº:76-1169
Citation:535 F.2d 881
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene ROBINSON, Defendant-Appellant.
Case Date:July 21, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 881

535 F.2d 881 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bobby Gene ROBINSON, Defendant-Appellant.

No. 76-1169

[*]

United States Court of Appeals, Fifth Circuit

July 21, 1976

Andrew H. Marshall, Fed. Publ. Defender, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., Dorothy T. Beasley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, GEWIN and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The Defendant in this case was convicted of possession of stolen United States Treasury checks in violation of 18 U.S.C.A.

Page 882

§ 1708. The issue presented by this appeal is whether the trial court erred in denying the Defendant's Motion To Suppress certain articles of mail which were seized by officers during a warrantless search of the Defendant's vehicle. We hold on the basis of Judge Gewin's recent opinion for the Court in United States v. Rias, 5 Cir., 1975, 524 F.2d 118 that the "stop" of the Defendant's vehicle was unlawful and the resultant search and arrest of the Defendant and his companion were violative of the Fourth Amendment and accordingly we reverse.

FACTS

As always in Fourth Amendment search and seizure cases the facts are important. On May 4, 1975, two Atlanta, Georgia police officers were parked at an apartment building in a predominantly Black neighborhood where they had recovered a stolen car and were awaiting the arrival of automobile theft detectives who could go after the suspect. The officers were familiar with the neighborhood and its residents because it was their regular beat.

While they were waiting for the detectives the officers happened to notice a new 1975 Plymouth automobile drive past slowly. It is significant to note that this type of automobile was customarily used by Atlanta detectives and the officers thought the car in question was an unmarked police vehicle. Shortly thereafter, the same vehicle again passed by and the officers left their location to catch up with it, believing it to be the car driven by the automobile theft detectives for whom they were waiting. After pulling out of their location they discovered the vehicle had stopped along the side of the road a short distance away and so the police vehicle pulled up parallel to the Plymouth and at that time, officer Smith, who was on the passenger side of the police vehicle noticed that instead of auto theft detectives, two young black males occupied the vehicle. The defendant, Bobby Gene Robinson, was seated on the driver's side of the vehicle.

Without speaking to the occupants of the car, officer Smith got out of his vehicle and went to the rear of the Plymouth and transmitted the tag number to the police station. Officer Smith then approached the defendant and asked to see his driver's license. According to the testimony of Smith the Defendant reached down toward the floorboard in an attempt to push a paper bag under the seat and it was this motion that drew Smith's attention to the paper bag on the floorboard of the driver's side of the car. Pursuant to Smith's request the Defendant produced a driver's license and testified that while Smith examined it the Defendant appeared to be pushing the paper bag with his heal under the front seat.

Apparently due to this manipulation of the bag by the Defendant, a brown window-type envelope slid out of the paper bag. According to Smith's testimony he recognized this as the same type of envelope which contained Government checks and accordingly asked "what is that"? At this time the passenger in the vehicle swung open the door and started to leave the vehicle but officer Smith and his partner drew their weapons and prevented him from doing so.

Smith seized the bag and then placed the occupants in the police vehicle and then examined the contents of the paper bag and discovered that they were United States Treasury checks and at that time placed them under arrest for possession of stolen checks.

Arrest Incident To A Search?: The Cart Before The Horse

It is beyond cavil and the government does not contend that probable cause to search or arrest existed at the time the defendants were stopped. Indeed, probable cause did not exist until after the officer's search turned up the stolen mail. "It is axiomatic that an incident search may not precede an arrest and serve as part of its justification". Sibron v. New York, 1968, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917, 934, citing Henry v. United States, 1959, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.Ct. 367, 92

Page 883

L.Ed. 436. Thus, the search cannot be justified as incident...

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