Sharpe v. U.S., s. 79-5314

• Decision Date: 30 June 1983
• Docket Number: 79-5315,Nos. 79-5314,s. 79-5314
• Citation: 712 F.2d 65
• Parties: William Harris SHARPE, Appellant, v. UNITED STATES of America, Appellee. Donald Davis SAVAGE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 65

712 F.2d 65

William Harris SHARPE, Appellant, v. UNITED STATES of America, Appellee.

Donald Davis SAVAGE, Appellant, v. UNITED STATES of America, Appellee.

Nos. 79-5314, 79-5315.

United States Court of Appeals, Fourth Circuit.

Submitted July 27, 1982.

Decided June 30, 1983.

Mark J. Kadish, Atlanta, Ga. (Rhonda A. Brofman, E. Marcus Davis, Kadish, David & Brofman, P.C., Atlanta, Ga., Larry Turner, Dennis E. O'Neill, Burkett, Wooddy, Bargmann & Cisa, Charleston, S.C., Edward T.M. Garland, Garland, Nuckolls & Catts, P.A., Atlanta, Ga., on brief), for appellants.

Lionel S. Lofton, Asst. U.S. Atty., Charleston, S.C. (Thomas E. Lydon, Jr., U.S. Atty., Columbia, S.C., on brief), for appellee.

Before WINTER, RUSSELL and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

The Supreme Court has vacated our decision in Sharpe v. United States, 660 F.2d 967 (4th Cir.1981), and has remanded ¹ this case to us, --- U.S. ----, 102 S.Ct. 2951, 73 L.Ed.2d 1345 (1982), with the direction that we reconsider it in light of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We have now done so. We conclude that by virtue of Ross, the decision of the Supreme Court in Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), upon which we relied as an alternative basis for our decision in Sharpe, is no longer valid. Accordingly, we disavow the rationale set forth in Section IV of the majority opinion. We also modify Section V of that opinion by deleting therefrom the words "either ... or because the warrantless search of the bales was unlawful."

Finding that Ross does not adversely affect our primary holding that the initial stop of the vehicle and the lengthy detention of the two defendants constituted illegal seizures, we readopt the majority opinion as modified herein, reaffirm our previous decision, and reverse the convictions.

I am authorized to state that Chief Judge HARRISON L. WINTER, a member of the original panel, and Circuit Judges JAMES DICKSON PHILLIPS, MURNAGHAN, and SPROUSE join in the views expressed in this opinion.

DONALD RUSSELL, Circuit Judge, dissenting:

When an opinion-order by the majority on remand of this appeal by the Supreme Court, which opinion-order was for all practical purposes in the same language as the present opinion distributed as of May 30, 1983, was first submitted by the majority of the panel on November 16, 1982, I promptly submitted my dissent on November 19, 1982. On the same date there was filed a motion by an active member of the Court to hear en banc this opinion-order. When the motion did not command the required Court majority, I again on December 14, 1982, submitted a dissent.

The majority has now submitted the present opinion and order. I reiterate my dissent both to the original opinion-order and to the denial of en banc hearing.

I submit my dissent to the denial of en banc hearing as my dissent to the present opinion-order herein. This dissent is as follows:

DONALD RUSSELL, Circuit Judge, dissenting:

I hesitate to file another dissent in this case, this time on the denial of a motion, made by a member of this Court, for an en banc hearing on an order on remand from the Supreme Court. I feel so strongly that our action on remand is contrary to the mandate of the Supreme Court that I am compelled again to state my views.

Implicit in the decision filed by the majority on remand in this case is the assumption that the Supreme Court overlooked inadvertently that the majority's original decision which was vacated by the Supreme Court rested "primarily" on a sound ground that was not involved in United States v. Ross ¹ and that, therefore, it was not necessary to disturb the result or to vacate the reversal of the convictions below as decided by the panel majority in their initial opinion. What the majority of this Court plainly stated is that the Supreme Court in reviewing this case failed to consider the ground on which the majority of our panel decided this case. I find, with due deference for the contrary opinion of my brothers, this to be a misreading of the Supreme Court decision.

I suggest with the utmost confidence that the majority of the Supreme Court did not overlook the first ground given by the majority of this Court for its initial decision, as the majority inaccurately would believe. Three members of the Supreme Court, in dissent, noted in particular this very ground and, to some extent at least, indicated they thought the Supreme Court should address it as entitled to some consideration in this context. The majority of the Supreme Court obviously did not agree and proceeded, by their action, to demonstrate (conclusively I suggest) that they did not feel that the first ground listed in our prevailing panel opinion provided any arguable basis for reversing the convictions below. Had they thought otherwise, they would simply have affirmed the reversal of the convictions as ordered in our initial opinion herein. I say that because it is a well-settled and oft-repeated rule of appellate procedure that, if the result of the decision which is challenged on appeal is correct for any reason, whether stated by the lower court or not, the decision of the lower court is affirmed. Riley Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 97, 85 L.Ed. 36 (1940); Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157, 82 L.Ed. 224 (1937). I am sure the Supreme Court is as well aware of its own Rules as we are. Under this rule, if the first ground in our initial opinion had been, in the opinion of the majority of the Supreme Court correct and supported a reversal of the convictions below, as the majority found in our panel opinion, the Supreme Court would have affirmed that opinion; better still, it would probably not have granted certiorari at all in this case. It did not do this, however. On the contrary, it vacated our decision and instructed us to decide the case on the basis of United States v. Ross.

The order on remand by us would assume, though, that the Supreme Court did not decide that United States v. Ross was controlling on the decision in this case and did not instruct us to decide this appeal on remand on the basis of United States v. Ross; it, in the opinion of a majority of the panel, only instructed us to "consider" United States v. Ross but left to us to determine, after considering Ross, whether it had any relevancy to the result reached by us in this case. Once again, I think the majority has mistaken gentleness in instruction for indefiniteness in command. The Supreme Court was seeking to be gentle with us but there is, I submit, no mistaking what they expected us to do. The Supreme Court thought Ross both relevant and dispositive and I would accept the plain direction of the Supreme Court.

I think it is plain why the majority of the Supreme Court didn't waste time on the first point made in our initial opinion herein. This is obvious when we look at the only detention and the only search really relevant in this action. Let's focus on the only search that was important in this case. ² That was the search of the van. It was the contraband in the van that convicted the defendants. The Pontiac car was only the lead car or guide for the van and its cargo of contraband. The Pontiac apparently transported no marijuana. The convicting evidence was in the van; the search and seizure of the van provided the critical evidence in the case; it was the suppression of the fruits of that search that was vital in this case and that made inescapable the proof of the guilt of the defendants. I say this because only if that search could be invalidated could the defendants keep out of the trial the contraband, the evidence which convicted the defendants. Since the first ground stated in our original opinion focused on the length of the detention or intrusion, the only issue was whether the detention of the van, but only the van, was illegally extended. What was the length of delay in that case?

Our original opinion states the length of that delay. It states that: "When Cooke [the DEA agent] arrived approximately fifteen minutes after the truck had been stopped ...." 660 F.2d at 969. Later it said: "... Savage [the operator of the van] was held under custodial arrest without probable cause by Thrasher [the highway patrolman who stopped the van at the instance of Cooke] for at least fifteen minutes before being questioned and finally arrested by Cooke." 660 F.2d at 970. And why was there a delay of fifteen minutes? The delay was occasioned by Savage's attempt to elude the DEA officer after he and the driver of the lead car had been stopped. Savage had tried to drive off when Cooke went over to the lead car, in the process "almost hitting [the car of the highway patrolman who had assisted Cooke in stopping the caravan]," 660 F.2d at 974 (Russell, dissenting). Is delay secured by such a ploy by a drug trafficker to be rewarded by declaring a delay of but fifteen minutes, and a delay so achieved, unconstitutionally long? I think not.

Approximately a year before our decision the Supreme Court in a case that the majority did not discuss, though it was discussed and relied on in my dissent, had dealt authoritatively with delay in connection with an investigatory Terry -type stop. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In that case the Supreme Court of Michigan had invalidated an investigatory stop of 50 minutes as too long. The United States Supreme Court reversed and, in so doing, declared:

"The cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. In these cases, as in Dunaway [v. New...