871 F.2d 41 (6th Cir. 1989), 88-5772, United States v. White

Docket Nº:88-5772.
Citation:871 F.2d 41
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. James Allen WHITE, Jr., Defendant-Appellee.
Case Date:March 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 41

871 F.2d 41 (6th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellant,

v.

James Allen WHITE, Jr., Defendant-Appellee.

No. 88-5772.

United States Court of Appeals, Sixth Circuit

March 28, 1989

Argued Jan. 31, 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.

Page 42

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...

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