U.S. v. Killebrew

Decision Date10 August 1977
Docket NumberNo. 76-1467,76-1467
Citation560 F.2d 729
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gerald KILLEBREW, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Milton R. Henry, Henry, Grubbs & Bledsoe, Detroit, Mich., for defendant-appellant.

Philip Van Dam, U.S. Atty., Steven W. Rhodes, Detroit, Mich., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and SILER, District Judge. *

PHILLIPS, Chief Judge.

Gerald Killebrew, the defendant-appellant, appeals from a jury conviction on two counts of receipt and possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. App. § 1202(a)(1). 1 Two issues are presented for review: (1) Whether the district court erred in denying defendant's motion to suppress evidence seized at the time of his arrest where defendant's arrest followed and was precipitated by the warrantless entry and search of his motel room? and (2) Whether separate convictions on two counts of receipt and possession of firearms after having been convicted of a felony are proper where the defendant received two firearms at different times but possessed them simultaneously? We answer the second issue in the affirmative, but reverse and remand because the entry and search of defendant's motel room violated his rights under the fourth amendment.

I.

Gerald Killebrew was arrested on November 15, 1974, in his room at a Holiday Inn Motel in Taylor, Michigan, by officers of the Taylor Police Department. A shotgun and a pistol found in the motel room were confiscated by the police. On April 28, 1975, a federal indictment was returned charging Killebrew with two counts of receiving and possessing a firearm, after having been convicted of a felony, in violation of 18 U.S.C. App. § 1202(a)(1). (See note 1, supra ). Prior to trial, defendant made a motion to suppress the firearms found in his motel room on the ground that the warrantless entry, search and arrest by the police violated his fourth amendment rights. Evidentiary hearings were conducted before the district court on July 30 and August 5, 1975. The district court denied Killebrew's motion to suppress and the case went to trial. On November 14, 1975, a jury found defendant guilty on each count of the two count indictment. A motion for new trial was denied by the district court and defendant was sentenced to two years' custody on each count, to run concurrently. On appeal Killebrew challenges the failure of the district court to suppress the firearms found in his motel room and also challenges the propriety of his conviction for multiple violations of 18 U.S.C. App. § 1202(a) (1).

The evidence at the suppression hearings shows the following. Early in the evening of November 14, 1974, the Innkeeper at the Eureka Road Holiday Inn Motel in Taylor, Michigan, was summoned by a guest to room 154 of the motel to repair a malfunctioning heater. While in room 154, the Innkeeper noticed a pistol lying on the bed. The occupant of the room (later determined to be the defendant-appellant) was present and when questioned about the gun by the Innkeeper he replied: ". . . it's all right. I am a salesman and I have a permit for it." The Innkeeper ascertained that the man in the room would be staying another night and asked him to take the gun with him when he left the room to avoid upsetting the motel's maids. Before leaving the room, the Innkeeper also noticed a large box sitting on the pillow which he described as being "about the right size to hold a gun."

Returning to the motel office, the Innkeeper consulted the registration card for the guest in room 154. The room was registered to a James Walker, 2670 St. Antoine Street, Detroit, Michigan. Noting that the desk clerk who had registered Mr. Walker had failed to verify the information on the card, the Innkeeper made a telephone call to "Information" and was given a number for a James Walker on St. Antoine Street. 2 Satisfied with this verification, the Innkeeper told the desk clerk that the man in room 154 "checks out."

Around 10 p. m. on the night of November 14th, the Innkeeper's wife came on duty as the night clerk at the motel. Before retiring for the night, the Innkeeper related to his wife that he had seen a gun in room 154 and that he had seen a box that might contain a rifle or shotgun. The Innkeeper told his wife that if the police officers came around for coffee later in the night she should mention the guns to them and let them check it out.

Officer Raymond Reagan of the Taylor Township Police Department testified that he was flagged down by the assistant manager of the Eureka Road Holiday Inn at about 2:30 a. m. on November 15, 1974. The assistant manager told Officer Reagan that her husband, the manager of the motel, had seen a pistol in room 154. Officer Reagan requested to see the registration card for that room. He noted the name and address and that the occupant was driving a 1974 Cadillac automobile, license number RSV-186. Officer Reagan was informed by the assistant manager that the occupant of room 154 was approximately 34 years old.

As the district court noted, the testimony at the suppression hearings concerning subsequent events at the motel is somewhat in conflict. A series of "lien checks" were run on the computer maintained by the Michigan State Police. The record of lien requests and returns for the night in question shows that at 2:30 a. m., in response to a query by the Taylor Police Department, the computer reported that there were no outstanding violations or tickets against the vehicle with license number RSV-186 and the vehicle had not been reported stolen. At 2:38 a. m. a message was forwarded to the Taylor Police Department stating that the Cadillac in question was registered to a Marcia and Gerald Killebrew, 3809 Hazelwood, Detroit. Apparently based on the information gained by Officer Reagan from the motel registration card and from questioning the assistant manager, a request was forwarded to the computer for liens and warrants for Gerald ("James") Walker, Negro male, approximately age thirty. At 2:45 a. m. the computer responded with information on four James Walkers.

The Taylor Police also asked for warrants and liens on a Gerald Killebrew, Negro male, age 30, and at 2:46 a. m. the response came back negative indicating there was no information on record regarding such a person. At 3:02 a. m., after the entry, search and arrest, a further request for information on a Gerald Killebrew with date of birth specified as July 9, 1937, came back indicating two outstanding traffic warrants. 3

At some point during this series of communications between Officer Reagan, the Taylor Police Department and the state crime computer, Officer Reagan requested back-up assistance from his headquarters. A Sergeant Harshberger and other officers came to the motel, bringing to at least five the number of officers then present. Sergeant Harshberger testified that a call was placed to the room where the Innkeeper of the motel was sleeping and a layout of room 154 was obtained. The Innkeeper's wife showed the officers to room 154. Sergeant Harshberger, Officer Reagan and an additional officer carrying a shotgun stationed themselves in the hallway outside of the room. Two other officers were dispatched to cover a second exit from the room.

With his service revolver drawn, Sergeant Harshberger knocked at the door to room 154. A voice inside asked who it was, and the Sergeant replied "Police Department." The door opened to the length of the night latch on the inside, and Sergeant Harshberger positioned himself so that the occupant of the room could see his uniform. The officers observed a Negro male peering out through the crack in the door. The occupant unlocked the door and stepped out into the hallway dressed in a bathrobe.

Sergeant Harshberger testified that he asked the man in the hallway if he was James Walker. The man replied in the affirmative. The Sergeant asked the man for some identification. As told by Sergeant Harshberger:

". . . At that point he (the occupant of room 154) turned around and walked back into the room. I followed him into the room and after I entered the room and had been in the room possibly five or six feet where I could see the bed, I noticed the pistol laying out in the open on the bed . . . I asked the subject if it was his gun. He stated that it was. I asked him if he had a permit for it and if it was registered . . . * * * . . . (H)e advised me that he had no permit and that the gun was not registered."

According to the Sergeant, the man in the room then produced a Michigan Drivers License with his picture on it which indicated his name was Gerald Killebrew. Sergeant Harshberger testified that he then requested by radio a lien check for outstanding warrants on the name Gerald Killebrew. Some four or five minutes passed before the response came back that there were no warrants outstanding. 4 Again in the words used by the Sergeant at the suppression hearing: "At that point I advised the subject that he was under arrest for possession of an unregistered gun and for the felony warrant that was outstanding under the name James Walker." The gun on the bed was seized, and the defendant was handcuffed.

As indicated, the defendant was not dressed at the time of these events. Officer Reagan, having also followed the defendant into his room, approached a bed in the room to gather some clothes for the defendant to wear to headquarters. Between the two beds in the room, Officer Reagan kicked an oblong box lying on the floor. Suspecting from the size and weight of the box that it might contain a weapon, Officer Reagan picked up the box and opened it. The box contained a loaded shotgun rigged within the box in a manner allowing it to be fired without removal from the box. The shotgun was confiscated and the defendant taken to Taylor Police Headquarters....

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