U.S. v. Ullrich
| Citation | 580 F.2d 765 |
| Decision Date | 20 September 1978 |
| Docket Number | No. 77-5038,77-5038 |
| Parties | 4 Fed. R. Evid. Serv. 304 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Lee ULLRICH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Louis M. Jepeway, Jr., Miami, Fla., for defendant-appellant.
Jack V. Eskenazi, U. S. Atty., Don R. Boswell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, GEWIN and TJOFLAT, Circuit Judges.
The appellant, Dennis Ullrich, was convicted by a jury in the district court of transporting a stolen motor vehicle in interstate commerce, in violation of the Dyer Act, 18 U.S.C. § 2312 (1976). Ullrich raises multiple grounds that he contends require his conviction to be overturned. First, he argues that the evidence utilized by the government to convict him was obtained as a result of a search incidental to his allegedly unlawful arrest by a Florida police officer. Second, he contends that the district court committed reversible error in admitting two Government exhibits offered to establish the identity of the automobile and its accessibility to Ullrich for the alleged theft. Third, he asserts that a lineup ordered by the district court during his trial was impermissibly suggestive.
We hold that the search incident to Ullrich's arrest was valid and that the district court properly denied Ullrich's motion to suppress the evidence obtained through the search. There was no error in the admission of the Government exhibits in question, and any error that may have occurred in the in-court lineup was harmless. Accordingly, Ullrich's conviction is affirmed.
On the evening of February 5, 1976, Officer Robert Albert Van Reeth, who at that time had been employed by the West Palm Beach, Florida, Police Department for approximately five months and had made numerous felony and misdemeanor arrests, was contacted by a security guard of Richard's department store while the officer was patrolling the Palm Beach Mall. Two of the salesclerks at Richard's had notified the security guard that a male customer had used a stolen credit card. The customer, who had purchased two items for less than fifty dollars each and had signed sales receipts for the purchases, was to return to the store at closing time, a short while later, for a social engagement with one of the salesclerks. The salesclerks gave the officer a description of the customer.
Officer Van Reeth, who was patrolling without a back-up officer, decided to investigate. He waited outside the store for the suspect to return. When Ullrich drove into the parking lot, both the salesclerks and the security guard pointed him out to the officer. Officer Van Reeth followed him in his patrol car, put on his flashing blue lights, and had Ullrich stop his automobile. Officer Van Reeth approached the automobile and, while standing outside the driver's side, asked Ullrich for identification. Ullrich procrastinated, then reached for his glove compartment with one hand while reaching under the front seat with the other. This movement was construed by the officer as threatening; he removed Ullrich from the automobile, frisked him, and placed him in the secured back seat of the patrol car. Officer Van Reeth then returned to the automobile and checked under the front seat to determine what was there. He found a revolver secured in a holster. At that point the officer returned to Ullrich, told him he was under arrest for carrying a concealed weapon, and read him his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Van Reeth also called for a supervisor.
The officer then returned to the open car to see whether the keys were in the ignition. As he got into the driver's seat, he observed a glassine bag containing various pills on the passenger's seat. Numerous credit cards were clearly visible in the glove compartment, which Ullrich had left open. The officer noted about four different names on the cards. At some time while at the scene of the arrest, Officer Van Reeth noted the vehicle identification number on the automobile, a 1976 Lincoln Continental. He also ran an initial check on the automobile's Ohio license tags, but it did not show the automobile to be wanted.
Officer Van Reeth waited with the defendant until a second police unit arrived. Following a written policy of the West Palm Beach Police Department, the officers impounded the vehicle and took it to the police station, where it was examined. By then the investigation had been taken over by Detective Sergeant John Conklin. Sergeant Conklin examined the contents of the automobile, including the contents of the open glove compartment. He interviewed and took the statements of the witnesses from the department store. Approximately two hours after the arrest, he saw Ullrich and, after obtaining a waiver of Miranda rights, interviewed him. Sergeant Conklin questioned him on the ownership of the car. Ullrich stated that the car belonged to a friend but did not give the friend's name. When Sergeant Conklin requested the friend's telephone number, to verify Ullrich's authority to have possession of the automobile, Ullrich said that his friend did not have a telephone. To identify the owner, Sergeant Conklin contacted the factory and discovered that the automobile had been shipped to a Lincoln Mercury dealer in Dayton, Ohio. When Sergeant Conklin telephoned the dealer, it was discovered that the automobile was missing from the dealer's lot. The federal authorities were promptly notified, and the Dyer Act charge now before us was instituted.
Ullrich contends that his arrest by Officer Van Reeth for carrying a concealed weapon was invalid under Florida law and that the evidence obtained from the search of the automobile should have been suppressed. The evidence included, among other things, the vehicle identification number observed by Van Reeth at the scene of the arrest, a false Ohio certificate of title, and other papers purporting to demonstrate that the automobile was properly registered in Ohio. Ullrich argues that without this evidence the Government could not have obtained his conviction.
At the outset, we should note that the Government challenges Ullrich's standing to protest the search of the automobile. Under the case law of this circuit, a defendant has automatic standing to contest the search of a vehicle when he is charged with a violation of the Dyer Act, 18 U.S.C. § 2312 (1976). Williams v. United States, 412 F.2d 729 (5th Cir. 1969); Glisson v. United States, 406 F.2d 423 (5th Cir. 1969) (overruled on other grounds, United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (en banc)). But see United States v. Edwards, 577 F.2d 883 at 895-96 (5th Cir. 1978) (en banc) (Brown, C. J., concurring in part and dissenting in part) (Tjoflat, J., concurring specially) (). Therefore, we must hold that Ullrich has standing. 1
Turning then to the question of the validity of Ullrich's arrest, we start with our holding in United States v. Wynn, 544 F.2d 786, 788 (5th Cir. 1977): when an arrest is made by state officers acting pursuant to state authority, "the requisite standard of probable cause for a lawful arrest is determined by state law, provided such law meets federal constitutional standards." See United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 226, 92 L.Ed. 210 (1948). The Florida Supreme Court has defined the test for a valid warrantless arrest as being "what a reasonable man would have believed had he known all of the facts known by the officer." State v. Outten, 206 So.2d 392, 397 (Fla.1968). Accord, Canney v. State, 298 So.2d 495 (Fla.App.1973), Cert. denied, 310 So.2d 743 (Fla.), Cert. denied,423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975); Chaney v. State, 237 So.2d 281 (Fla.App.), Cert. denied, 242 So.2d 461 (Fla.1970), Cert. denied,403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971). The test is the same under the fourth amendment. E. g. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). Therefore, to determine whether Ullrich's arrest and the search incident to it were reasonable under Florida law and the federal Constitution, we must review the facts known to Officer Van Reeth at the time of the arrest. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2059, 29 L.Ed.2d 564 (1971)).
When Officer Van Reeth decided to stop and question Ullrich, the officer had been informed by the department store personnel that the suspect had made two purchases with a credit card that had been reported stolen. The salesclerks not only gave a physical description of the customer but also pointed him out to the officer. Prior to stopping the suspect, the officer may have considered his conduct to constitute a misdemeanor under Florida law. 2 Record, vol. 1, at 401. State Credit Card Crime Act, Fla.Stat. §§ 817.57-.68, §§ 817.60(1), 817.61 (1975). Florida law does not authorize an officer to make a warrantless arrest for a misdemeanor unless it was committed in his presence, Fla.Stat. § 901.15 (1975), but it does permit him to stop and briefly detain a suspect under the state's "stop and frisk" law, Id. Clearly, Officer Van Reeth was acting reasonably and lawfully in making the initial stop and asking Ullrich for identification. 3
When the suspect procrastinated before opening the glove compartment and then simultaneously reached under the seat of the car, Officer Van Reeth's responses to what he considered a threatening motion were manifestly reasonable. The Supreme Court has repeatedly acknowledged the dangers facing police officers when they approach persons...
To continue reading
Request your trial
-
Borden, Inc. v. F.E.R.C.
... ... cases, each within its own scope of application, petitioners' assertion of irreconcilability between the two lines of authority is properly before us. If found to be irreconcilable, the proper course would seem to be a remand directing the Commission to explain away the judicially perceived ... ...
-
US v. McQuagge
...testified that he was afraid that the defendant would attempt to escape by running an agent over with his truck); United States v. Ullrich, 580 F.2d 765, 769 (5th Cir.1978) (where defendant had not responded when asked for identification, and then reached for glove compartment with one hand......
-
State v. Pope
...loss." Perry, 136 Wis. 2d at 111, 401 N.W.2d 748 (quoting DeLeon, 127 Wis. 2d at 77, 377 N.W.2d 635 ); see also United States v. Ullrich, 580 F.2d 765, 773 n.13 (5th Cir. 1978). The majority flouts the law by imposing the consequences of the lost transcripts on Pope despite the fault plainl......
-
Bank of N.Y. Mellon v. Shone
...and use the record in the course of its own operations in a manner that confirms the accuracy of the record. See United States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978) (holding that the vehicle inventory schedule prepared by the manufacturer and received by the dealer was integrated......