U.S. v. Fossler

Decision Date20 June 1979
Docket NumberNo. 78-5446,78-5446
Citation597 F.2d 478
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Douglas Earl FOSSLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

James R. Gillespie, San Antonio, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, John E. Murphy, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before SIMPSON, TJOFLAT and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Douglas Earl Fossler appeals from his conviction on a two-count indictment charging him with the unlawful possession of a bomb not registered to him and not identified by a serial number in violation of 26 U.S.C. §§ 5861(d) and 5861(i). Following the jury's rendition of guilty verdicts on both counts, the District Court suspended imposition of sentence and placed Fossler on probation for a period of five years. Fossler presents three issues on appeal: (1) whether the District Court erred in denying his motion to suppress evidence under the "silver platter" doctrine's rejection in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); (2) whether the District Court erred in failing to dismiss the indictment under the reasoning in Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), and Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977); and (3) whether the District Court erred in delivering the Allen 1 charge on two separate occasions when the jury indicated it could not reach a verdict. We find no merit in Fossler's first two arguments, but his Allen charge contention is persuasive. We therefore reverse his conviction.

The evidence shows that at approximately six o'clock in the evening of May 30, 1976, an officer of the Kerrville, Texas, Police Department was notified by radio that there was a reckless driver in the 600 block of Lois Street. When the officer arrived at the 600 block of Lois Street, he saw Fossler leaning against his car, which was sitting in the front yard of a residence and was only a few inches away from a tree. A small girl had been up in the tree when Fossler ran his car onto the lawn and under the tree's boughs.

The officer approached Fossler and asked him for his driver's license. The officer noticed that Fossler had difficulty trying to stand, had bloodshot eyes, and slurred his speech. When the officer asked Fossler if he had been drinking, Fossler replied, "Yes." The officer also talked to witnesses who said they had seen Fossler drive down the street very erratically, weave from side to side, and finally stop next to the tree. The officer came to the conclusion that Fossler was intoxicated and arrested him for driving while intoxicated.

Shortly thereafter, another officer arrived to assist the arresting officer. The assisting officer was asked by a man who appeared to be the owner of the house if the car could be removed from the lawn. The assisting officer then asked Fossler whether he preferred that the car be towed to the police station or driven there by the officer. Fossler responded by giving the assisting officer the car keys.

The assisting officer opened the car door and looked under the front seat for open liquor or beer bottles that might spill enroute. When his brief search revealed a .22 caliber pistol under the driver's seat, he decided to drive the car to the station before taking an inventory of its contents pursuant to standing Police Department orders regarding impounded cars. As the officer drove the car to the station, he noticed an object, similar in size and shape to a softball, on the passenger side of the front seat. When the officer later inventoried the contents of the car, he discovered that the round object was a homemade bomb. 2 The sphere was covered with masking tape and a piece of fuse was attached to it. The evidence presented at trial established that the homemade bomb was designed as a weapon with no legitimate lawful purpose. Although Fossler, who holds a graduate degree in biophysics, claimed that he made the bomb only to injure coyotes, he admitted that it was a dangerous device containing a blasting cap and could at least mutilate a person's hand. He also admitted that he told the police officer to drive his car, in which the bomb was found, to the station.

In addition to the driving while intoxicated charge, Fossler was charged in the State District Court with possession of a destructive weapon. Fossler's motion to suppress evidence in the State proceeding was granted. The District Attorney thereafter filed a motion to dismiss the indictment, which was granted. Fossler was subsequently charged with the federal offenses alleged in the instant indictment. He filed a motion to suppress evidence and a motion to dismiss the indictment on the basis of Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), but both motions were denied. The trial and conviction which followed led to this appeal.

I.

In arguing that the District Court erroneously denied his motion to suppress evidence, Fossler points out that the State Judge suppressed the evidence and concludes that he did so because Fossler's initial arrest by the state officer was unlawful and the subsequent search was therefore illegal. Thus, he argues, the rejection of the "silver platter" doctrine in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), prohibits the use of the same excluded evidence in a subsequent trial.

The holding of Elkins v. United States is not, however, wholly consistent with Fossler's argument:

(W)e hold that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial. In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.

364 U.S. at 223-24, 80 S.Ct. at 224 (footnote omitted). The District Court was thus correct in making an independent inquiry and determination regarding the suppression of evidence. Accord, United States v. Garrett 565 F.2d 1065, 1068 (9th Cir. 1977), Cert. denied, 435 U.S. 974, 98 S.Ct. 1620, 56 L.Ed.2d 67 (1978), Cert. denied sub nom., Morgan v. United States, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978); United States v. Bedford, 519 F.2d 650 (3d Cir. 1975), Cert. denied, 424 U.S. 917, 96 S.Ct. 1120, 47 L.Ed.2d 323 (1976).

The District Court was correct as well in determining that, under Texas law, 3 Fossler's arrest was lawful. Fossler asserts that he could not have been properly arrested for driving while intoxicated because the officer did not see him driving, but rather found him leaning against his stopped car. Article 14.01(b) of the Texas Code of Criminal Procedure allows a warrantless arrest for a misdemeanor, which driving while intoxicated is, only when the offense is committed in the arresting officer's presence or within his view. The Texas Court of Criminal Appeals has indicated, however, that an arrest for driving while intoxicated is not necessarily invalid merely because the arresting officer did not see the defendant drive his car, since the defendant may still be subject to a public intoxication charge. Fletcher v. State,164 Tex.Cr.R. 321, 323, 298 S.W.2d 581, 582 (1957). The Fifth Circuit has recognized that where a defendant was arrested for the "wrong" offense, the arrest is nonetheless valid where the crime for which he was arrested and the crime for which there was probable cause to believe he had committed are closely related and there is no proof of sham or fraud. Mills v. Wainwright, 415 F.2d 787, 790 (5th Cir. 1969). Hence, our inquiry focuses on whether there was probable cause to arrest Fossler for public intoxication.

Fossler contends that because he was in the front yard of a Private residence when he was arrested, there was no probable cause then existing to arrest him for Public intoxication. 4 In view of his status as an uninvited stranger on the front lawn, his contention is unpersuasive. See Pugh v. State, 55 Tex.Cr.R. 462, 117 S.W. 817 (1909). The Texas courts have traditionally held that a place may be a public one or not according to the circumstances. See Clinton v. State, 64 Tex.Cr.R. 446, 142 S.W. 591 (1912). To hold that there was no probable cause to arrest Fossler for public intoxication merely because he had moments before driven his car from the public street up onto a stranger's lawn would be unreasonable, and we decline to do so. 5

Having determined that Fossler's arrest was valid, we turn now to the lawfulness of the discovery of the homemade bomb in his car. Fossler's car was legitimately impounded and subsequently subjected to a routine inventory search. Indeed, there is every indication that Fossler chose to have his car driven to the police station by the police officer and that he willingly handed the keys to the officer for that purpose. The evidence discovered in the course of the inventory of the car is admissible against Fossler under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Moreover, the officer who conducted the inventory was rightfully in position to observe the homemade bomb in plain view on the front seat of the car as he examined the object in order to classify it for the inventory listing. The bomb was thus properly seized and admitted into evidence against Fossler under the plain view doctrine...

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