U.S. v. Duckett

• Decision Date: 14 November 1978
• Docket Number: No. 77-5741,77-5741
• Citation: 583 F.2d 1309
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward DUCKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1309

583 F.2d 1309

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward DUCKETT, Defendant-Appellant.

No. 77-5741.

United States Court of Appeals Fifth Circuit.

Nov. 14, 1978.

Theodore J. Sakowitz, Federal Public Defender, Lurana S. Snow, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Richard A. Woolf, Ralph N. Person, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, GEE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Thomas Edward Duckett was found guilty by a jury on each count of a four-count indictment charging him with two counts of possessing stolen mail in violation of 18 U.S.C.A. § 1708, retaining with intent to convert two United States Treasury checks in violation of 18 U.S.C.A. § 641, and obstructing the passage of mail in violation of 18 U.S.C.A. § 1701. On appeal Duckett objects to the trial court's instruction relating to the permissible inferences to be drawn from the possession of recently stolen mail and to the trial court's decision to overrule his motion to suppress. We find no reversible error, and affirm.

At approximately six o'clock a. m. on February 3, 1977, Officer Thomas Guilfoyle, a police officer of the Dade County Public Safety Department, stopped Duckett because the orange-colored van he was driving did not have a visible license plate light, an offense for which Officer Guilfoyle always stopped vehicles. After Duckett was unable to produce an operator's license, a vehicle registration form, or any other means of identification, the officer placed Duckett under arrest. After placing a call for a tow truck, the officer found it necessary to include the vehicle identification number (VIN) on a vehicle tow sheet he was required to complete. While the officer was inspecting the dashboard of the van for the VIN, he discovered two envelopes approximately eighteen inches from the spot where he had expected to find the VIN. Through the transparent window of one of the envelopes, the officer noticed that the name and address of the addressee was not the same as the one given by Duckett, so he seized the envelopes, finding one of them to contain two United States Treasury checks. A follow-up examination that same morning, conducted by Postal Inspector Donald Fulton, verified Officer Guilfoyle's initial conclusion that one of the envelopes contained two United States Treasury checks.

I.

Duckett moved to suppress these items, but the trial court overruled his motion. Duckett contends that the initial entry into the van and seizure of the envelopes, as well as the subsequent opening and examination of the envelopes, constituted warrantless searches in violation of the Fourth Amendment.

Having examined the record before us, we conclude that there was no constitutional violation in this case. It is undisputed that Duckett was unable to produce a valid operator's license, a vehicle registration form, or any proper means of identification. When a radio-check verified that Duckett did not possess a valid Florida operator's license, the officer arrested him, searched him briefly for weapons, and placed him in the rear seat of the patrol car. After Duckett's arrest the officer called to have the van towed in, and pursuant to Dade County Public Safety Department regulations, began to fill out the towing sheet. One of the necessary pieces of information to be included on the sheet was the vehicle identification number. Officer Guilfoyle testified that, on the basis of his experience, VINs are located on the upper left hand corner of the dashboard of 95 per cent of American-made cars after 1968. Knowing the van to be a 1970 model and expecting to find the VIN on the left hand side of the dashboard, Officer Guilfoyle opened the door of the van, leaned inside, and illuminated the dashboard with his flashlight. Within his immediate eyesight, approximately eighteen inches from the spot where he expected to find the VIN, lay two envelopes, one on top of the other. Through the transparent window of the top envelope, Officer Guilfoyle noticed that the addressee was someone other than Duckett. Suspecting that something was wrong, he therefore seized both envelopes, removed the top one, and discovered inside the second envelope, which had been opened, two United States Treasury checks made payable to someone other than Duckett.

We find the circumstances of this case to fall clearly within the " plain view" exception to the warrant requirement. Where the initial intrusion by a police officer is justified, the warrantless seizure of inadvertently-discovered evidence in plain view does not offend the Constitution if it is immediately apparent to the police officer that he has evidence before him. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In this case there can be no doubt that the officer had a right to be where he was when he came across the two envelopes. Where a legitimate reason exists to do so, the mere checking of a vehicle identification number in order more positively to identify the vehicle is not a "search" within the meaning of the Fourth Amendment, and even should it be, it is a reasonable one. United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (en banc). Thus the defendant conceded at the suppression hearing, as we now hold, that the officer was lawfully present in the van when he came across the two envelopes. Notwithstanding this concession, Duckett contends that two remaining components of the "plain view" exception inadvertent discovery and the presence of obviously incriminating evidence are lacking in this case.

Initially we note that the district court specifically found that the discovery of the envelopes was inadvertent and that their incriminating nature was immediately apparent to the discovering officer. We further note that the trial court's findings of fact on a motion to suppress must be accepted unless clearly erroneous. United States v. Griffin, 555 F.2d 1323, 1324 (5th Cir. 1977); United States v. Horton, 488 F.2d 374, 380 (5th Cir. 1973), Cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). A finding is clearly erroneous only when the reviewing court is left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Based on our review of the record, we unhesitatingly agree with the findings made by the district court and leave them undisturbed.

Officer Guilfoyle testified that the two envelopes were within easy eyesight (approximately 18 inches) of the spot where he expected to find the VIN, and that he in no way expected to find the envelopes until he came across them on the dashboard. The fact that the VIN was actually located on the door of the van is irrelevant for our purposes. Thus, we entertain no doubts that the discovery was inadvertent.

Duckett also suggests that the incriminating nature of the envelopes could not have been immediately apparent to Officer Guilfoyle, thereby rendering the "plain view" exception inapplicable. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Drew, 451 F.2d 230, 233 (5th Cir. 1971). In this regard Duckett seeks to make much over Officer Guilfoyle's admission that, at the time he seized the envelopes, he was unsure as to whether they were stolen or lost. Although he was not absolutely certain that the envelopes had been stolen, the officer did know that something was amiss; that the return address on the envelopes was an administrative agency of the State of Florida; that the name of the addressee on the top envelope was someone other than Duckett; and that inside the second envelope were two United States Treasury checks made payable to someone other than Duckett himself. There is no rule of law which requires an officer to know with absolute certainty that all elements of a putative crime have been completed when he seizes an article which reasonably appears to be incriminating evidence. United States v. Woods, 560 F.2d 660, 664 (5th Cir. 1977), Cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978); United States v. Cecil, 457 F.2d 1178, 1180-81 (8th Cir. 1972). We thus find that Officer Guilfoyle had probable cause to and did in fact reasonably believe that an offense, the possession of stolen mail, was being committed in his presence. See United States v. Sedillo, 496 F.2d 151 (9th Cir.), Cert. denied, 419 U.S. 947, 95 S.Ct. 211, 42...