U.S. v. Wiga

• Decision Date: 07 December 1981
• Docket Number: 80-1724,Nos. 80-1635,s. 80-1635
• Citation: 662 F.2d 1325
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jozsef Tibor WIGA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Jozsef Tibor WIGA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1325

662 F.2d 1325

UNITED STATES of America, Plaintiff-Appellant, v. Jozsef Tibor WIGA, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Jozsef Tibor WIGA, Defendant-Appellant.

Nos. 80-1635, 80-1724.

United States Court of Appeals, Ninth Circuit.

Argued April 6, 1981.

Submitted Aug. 14, 1981.

Decided Dec. 7, 1981.

Sidney M. Glazer, Washington, D. C., argued, for the U. S.; Ruth Cohen, Asst. U. S. Atty., Las Vegas, Nev., on brief.

Randall Roske, Las Vegas, Nev., for Wiga.

Appeal from the United States District Court for the District of Nevada.

Before ANDERSON and NELSON, Circuit Judges, and MURPHY, ^* Senior District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Jozsef Tibor Wiga was convicted in district court of two counts of violating 18 U.S.C. § 922(g)(1) (felon transporting firearm in interstate commerce), and two counts of violating 18 U.S.C. App. § 1202(a)(1) (ex-felon in possession of firearm). The district court vacated Wiga's convictions on three of the four counts, and sentenced Wiga to serve two years in prison on a single count of possession under § 1202(a)(1). In No. 80-1635, the government appeals the vacating of the three additional counts. In No. 80-1724, Wiga appeals his conviction, claiming the denial of his motion to suppress the two firearms which formed the basis of his conviction was erroneous. We affirm the conviction and the denial of the motion to suppress in No. 80-1724. We reverse the district court's dismissal of Count II for a separate violation of 18 U.S.C. Appendix § 1202(a)(1) in No. 80-1635.

I. BACKGROUND

On December 21, 1978, Special Agents Charles Barry and Kenneth T'Kindt of the FBI in Nevada received word from the FBI office in Spokane, Washington, that Wiga, a federal parole violator, would be traveling to Las Vegas in the company of one Alice Moody, and that Moody was expected to pick up some money from a particular branch of the Bank of Nevada. ¹ The agents went to the branch and arranged for one of the tellers to give a hand signal when Moody arrived. At approximately two o'clock that afternoon, Moody arrived at the bank and transacted her business. The agents observed her walk to a shopping center parking lot, where a motor home bearing Colorado license plates eventually pulled up. The plates indicated issuance of a vehicle license to a handicapped owner. The officers knew Wiga was not handicapped.

After following the motor home for roughly 15 minutes, Barry pulled alongside in an attempt to identify the driver. Barry determined that the driver closely resembled Wiga. At about the time that Barry pulled alongside, the driver pulled down the left-hand sun screen in what Barry surmised was an attempt to hide his face. Barry then pulled the motor home over to the side of the road. Barry and T'Kindt, after identifying themselves, ordered the driver to step out. They concluded upon closer inspection that the driver indeed was Wiga.

After arresting and handcuffing Wiga, Barry asked if anyone else was in the motor home. Wiga replied that no one else was inside, a statement the agents knew was untrue because they had seen Moody enter earlier. T'Kindt called for Moody to come out, which she did via the rear door. Moody had not been visible to the agents since she had entered.

After Moody complied, T'Kindt entered the rear door of the motor home to see if any confederates of Wiga might still be inside. T'Kindt briefly walked toward the front of the 20-foot vehicle, checking both the bathroom and the closet for possible occupants. As he neared the front, he noticed lying on the floor to the rear of the driver's seat a .357 magnum revolver, and also saw a shotgun in an overhead bunk section above the driver's compartment. He took custody of both weapons, each of which was loaded.

Wiga moved to suppress the weapons on fourth amendment grounds in a pretrial motion. The district court denied the motion and upheld the search of the motor home as a valid search of a vehicle contemporaneous with the arrest of the operator, the weapons being in plain view. Wiga renewed the motion at trial, where it was again denied. This appeal followed.

II. DISCUSSION

A. No. 80-1724

Wiga does not dispute the validity of the initial stop of the motor home, nor does he argue that his arrest was improper. He does attack Agent T'Kindt's search of the motor home after Moody had stepped outside as being unreasonable. The government does not contend that Agent T'Kindt had probable cause to search for weapons or contraband, but instead justifies his inspection of the interior of the motor home as a search incident to arrest, and also invokes the "automobile exception" and "plain view" doctrines. In addition, the government has cited our recent decision in United States v. Gardner, 627 F.2d 906 (9th Cir. 1980), which we take as an argument that the "protective sweep" doctrine applies in this case. Upon resubmission, ² the government now also asserts that New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) controls.

1. The Automobile Exception

We recently held that the "automobile exception" is inapplicable to a motor home. See United States v. Williams, 630 F.2d 1322 (9th Cir. 1980). In Williams, we noted certain differences between a motor home and more conventional street vehicles:

"Whatever expectations of privacy those travelling in an ordinary car have, those travelling in a motor home have expectations that are significantly greater. People typically do not remain in an auto unless it is going somewhere. The same is not true of a motor home, in which people can actually live. In the ordinary motor home, the glass is tinted or shades can be drawn so that passers-by cannot peer in. Moreover, many, like the one in this case, have beds and fully equipped baths, making them in some senses more akin to a house than a car. In light of both these factors, we cannot uphold this search merely because it was of a search of a motor home...." (Citations omitted)

630 F.2d at 1326.

The motor home which Wiga was driving appears to be substantially similar to the vehicle considered in Williams. The agents testified that the rear of the Wiga motor home was completely shielded from their view so that Moody was not visible until she stepped outside under their orders. Wiga pulled down a sun screen which effectively blocked his face from Agent Barry's view prior to the vehicle being pulled over. Agent T'Kindt testified that the vehicle contained both a closed bathroom and a closet. Under the authority of Williams, therefore, we cannot sanction the search at issue here merely on the basis of the "automobile exception." ³

2. Protective Sweep Incident to Arrest

While a motor home may afford its occupants a higher expectation of privacy than does an ordinary passenger automobile, it also raises the possibility of certain exigencies which are not present in the case of the ordinary automobile stop. A motor home may shield from the view of officers unknown occupants who could either present a threat to the officers' safety or destroy or secrete contraband while the driver is being interrogated. In that sense, a motor home is very much akin to a private dwelling. Therefore, search and seizure doctrines normally applicable to a stationary dwelling or business may in some instances also be applicable to a motor home.

The government invokes one such doctrine here. In United States v. Gardner, 627 F.2d 906 (9th Cir. 1980), we had occasion to comment extensively upon what is known in this circuit as the "protective sweep" doctrine. In Gardner, we stated the doctrine thusly:

"When officers have arrested a person inside his residence, the exigent circumstances exception permits a protective search of part or all of the residence when the officers reasonably believe that there might be other persons on the premises who could pose some danger to them." (Footnote omitted.)

627 F.2d at 909, 910.

In Gardner, officers posing as drug purchasers had observed certain items of contraband and dangerous weapons in plain view within the residence of Gardner. Even though the residence had remained under surveillance from the outside, it was constructed in such a manner that a person could enter or exit undetected, and the agents were aware that at least one person had departed during their surveillance without being seen. When Gardner returned from a trip to purchase methamphetamine, he was arrested on the sidewalk outside of the residence, while a codefendant was arrested inside the residence. The arresting officers immediately engaged in a "protective sweep" of the residence to determine whether any other occupants remained. We there held that the agents could reasonably assume that other persons might have entered the premises undetected, and that weapons which had earlier been observed could be used. Applying the standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we held that the officers in Gardner had reasonable cause to suspect that other potentially dangerous persons might be on the premises.

The "reasonable cause" element of Gardner is not susceptible of clear definition. Under the analogous Terry v. Ohio standard:

"... (T)he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger ... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience...." (citations omitted)

392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Pre-Gardner decisions in our circuit which have upheld warrantless premises searches under the rationale of assuring officer safety have generally arisen in the context of circumstances wherein suspicion of the presence of...