U.S. v. White, 88-5772

• Citation: 871 F.2d 41
• Decision Date: 28 March 1989
• Docket Number: No. 88-5772,88-5772
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Allen WHITE, Jr., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 41

871 F.2d 41

UNITED STATES of America, Plaintiff-Appellant, v. James Allen WHITE, Jr., Defendant-Appellee.

No. 88-5772.

United States Court of Appeals Sixth Circuit.

Argued Jan. 31, 1989.

Decided March 28, 1989.

William T. Warren, III, Asst. U.S. Atty. (argued), Nashville, Tenn., for plaintiff-appellant.

Sumter L. Camp, Asst. Federal Public Defender (argued), Nashville, Tenn., for defendant-appellee.

Before KRUPANSKY and BOGGS, Circuit Judges, and EDWARDS, Senior Circuit judge.

BOGGS, Circuit Judge.

The government appeals the decision of the district court granting White's motion to suppress evidence of a firearm in the course of prosecution of White for possession of a firearm by a convicted felon. We reverse, finding that the search was a valid search incident to White's arrest.

I

The facts underlying the charges against White are as follows. White was operating his automobile southbound on Dickerson Road, a four-lane road in Nashville, Tennessee, at about 9:25 p.m. on April 14, 1987. White testified that he had been drinking and had stopped at a store to purchase more beer, after which he returned to his car and continued driving. According to his testimony, he changed into the left lane of Dickerson Road in preparation for making a left turn. However, because another vehicle was stopped at the intersection in the left (turning) lane in front of White, he decided not to turn, and again switched lanes, this time back into the right lane. White claims that another vehicle passed him on the left at about the same time he saw a Ford Bronco with blue lights turned on approaching him from behind. White then switched back into the left lane to accommodate the Bronco.

The Bronco was an unmarked police vehicle being driven by Officer Stevens, a vice officer from the Nashville/Davidson County government. He was patrolling the area in plain clothes, and observed White driving in what appeared to be an erratic manner. Stevens claims that the car was weaving from the right lane partially into the left lane and back again. Stevens turned on his lights and siren and stopped the car to investigate whether the driver was intoxicated.

Upon Stevens's signal, White made a left turn and pulled into an empty parking lot. He then got out of his car and produced his driver's license on demand. At that time, Stevens noticed the smell of alcohol on White's breath. He asked White to perform a field sobriety test consisting of touching his nose, which White failed repeatedly. Stevens claims to have no recollection of having White stand on one foot, but earlier told a Federal Alcohol, Tobacco and Firearms (ATF) agent that he had. Stevens then concluded that White required a breathalyzer test for which he would have to be taken to the police station. Thus, Stevens placed White under arrest on the charge of driving while intoxicated, and placed White in the rear seat of a police cruiser.

Stevens testified that he then went to White's vehicle and looked inside through an open window with the aid of a flashlight. He testified that he saw a .38 caliber revolver in plain view on the front floorboard between the driver's seat and the brake pedal, and retrieved the gun. White disputes this testimony, claiming that Stevens went to the car following White's arrest, opened the door, and began searching the interior, the glove compartment and the seats, and that the gun was found under one of the seats.

White asked if he could lock his car, and was told that he could call someone from the station to let them know where the car was so that they could pick it up. Stevens then had the vehicle towed to the police impound lot because White had been arrested for DUI. Stevens testified that he towed the car for White's protection because the area was a high crime area. However, the vehicle was not blocking traffic.

White was taken to the station and a breathalyzer test was administered. The test results indicated a blood alcohol level of .10%. White was charged with driving while intoxicated and carrying a firearm.

The trial judge analyzed White's fourth amendment challenge to the warrantless search of the car and seizure of the gun, first stating that Stevens conceded that his recollection of the relevant events was poor, and noting that his testimony was inconsistent in a number of crucial details with a statement he had made to an ATF agent on November 20, 1987, about six months after the event. In that statement, Stevens stated that he saw the gun when he first approached White's car to speak with White, and that the gun was in plain view on the floorboard at that time. Stevens made no claim that he had reasonable cause to believe that there was evidence of crime in the car, or that there was any probable cause to have taken the vehicle into custody. Nor did he claim exigent circumstances justifying a search without a warrant. On this basis, the trial judge concluded that there was no justification for searching the car. He stated that there are limits on the plain view doctrine in that the item must come into plain view in the course of a valid search of the arrestee. Thus, for these reasons, the judge granted White's motion to suppress.

II

On appeal, the government argues three grounds to support the search of the car and seizure of the gun: (1) the plain view doctrine; (2) the concept of "community caretaking function" enunciated in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); and (3) the search was a valid search incident to arrest. White maintains that the trial judge was correct in finding that the search of his car and the seizure of his gun were not justified under any of the exceptions to the warrant requirement. At oral argument, White further argued that the original stop of his vehicle was invalid. We agree with the government's assertion that the search was a valid search incident to arrest, and thus find no need to reach the other theories espoused by the government. In that the district court made no factual findings concerning the nature of the stop, we do not consider White's challenge to the stop itself, which may be raised on remand.

A

In general, "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of those [the fourth and fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979) (citations omitted). The Supreme Court has applied an objective test of reasonableness in determining the legality of car stops and searches, balancing the state "intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests." Id. at 654, 99 S.Ct. at 1396. "An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation." Id. at 662, 99 S.Ct. at 1400.

[P]rotection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that...