Brewer v. Wolff

• Decision Date: 20 January 1976
• Docket Number: No. 75--1294,75--1294
• Citation: 529 F.2d 787
• Parties: David Lee BREWER, Appellant, v. Warden Charles WOLFF, Jr., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 787

529 F.2d 787

David Lee BREWER, Appellant, v. Warden Charles WOLFF, Jr., Appellee.

No. 75--1294.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1975.

Decided Jan. 20, 1976.

Richard L. Schmeling, Lincoln, Neb., for appellant.

Harold S. salter, Asst. U.S. Atty., Lincoln, Neb., for appellee.

Before GIBSON, Chief Judge, and STEPHENSON and WEBSTER, Circuit Judges.

GIBSON, Chief Judge.

Petitioner, David Lee Brewer, was convicted in the District Court of Douglas County, Nebraska, of possessing a firearm after having been previously convicted of a felony and of being an habitual criminal. His conviction was affirmed on direct appeal by the Supreme Court of Nebraska. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973). Petitioner now appeals from the denial of his federal petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1970). His sole contention is that the firearm serving as the cornerstone of the State's case was seized in an unlawful, warrantless search of an automobile. We affirm the District Court's ¹ conclusion that the search was lawful and denial of the writ.

Early in the evening of April 8, 1972, an off-duty police officer in Omaha, Nebraska, Sergeant Pfeffer, was told by one Randy Scott Gore, a tipster whom Pfeffer had known for six to eight months, that a robbery might take place in an Omaha bar that evening. Sergeant Pfeffer considered Gore reliable for the reason that information Gore had supplied in the past had corresponded with facts already established by independent police investigation. No arrests, however, had been made as a result of Gore's prior tips. Sergeant Pfeffer arranged for Gore to meet with Sergeant Swanson of the undercover intelligence division in the neighborhood where the robbery was to take place. In a fifteen or twenty minute meeting, Gore advised Sergeant Swanson that three, possibly four, persons would rob a certain neighborhood bar at about 9:30 that evening.

Gore identified two of the four persons as his neighbors, Warren Dittrich and David Lee Brewer, and the third as an acquaintance named Powell. The fourth man he identified only as an alleged escaped convict. Gore told Sergeant Swanson that the robbers planned to use two cars, a blue 1965 or 1966 Oldsmobile and a bronze Buick, both bearing Nebraska license plates, and that they would be armed with a shotgun and two handguns he had seen in their possession. Gore had been asked by the prospective robbers to participate in the crime by creating a diversion elsewhere in the same neighborhood for the purpose of occupying the police while the robbery was in progress. Gore reported that all of the above information was based upon his personal observation and conversations with the prospective robbers.

Sergeant Swanson relayed the information to uniformed police officers in the area. The bar was placed under surveillance but it was not robbed that evening. Earlier, while Swanson and Gore had been engaged in their conversation on the street next to Sergeant Swanson's unmarked car, Gore identified a passing car as the blue Oldsmobile being used by the suspects, but he could not see the occupants well enough to identify them. Gore promptly departed to rendezvous with the prospective robbers. He later reported that he was quickly quizzed by them about his suspicious contact with Sergeant Swanson but apparently he offered them a satisfactory explanation, for he was further instructed to proceed with the planned diversion by throwing rocks through a nearby store window. Gore promptly returned to inform Sergeant Swanson what the prospective robbers had told him to do.

Meanwhile, at approximately 9:30 p.m. uniformed officers Gutchewsky and Rockwell were instructed by radio to maintain surveillance of the residence of suspect Warren Dittrich, to be assisted by two other officers stationed in a nearby police cruiser. At about 11:30 p.m. petitioner drove up in a bronze Buick, honked his horn, waved at the officers and turned toward Dittrich's house. The officers, noting that Brewer's car matched the description relayed earlier from Gore, ordered him to stop and step out of the car. Brewer emerged from the car as instructed. They asked him for a driver's license and auto registration but he produced no identification. Rather, he orally identified himself as Clarence Brewer (petitioner's brother) and gave an evasive explanation of his presence in the area, saying he was going to visit a girlfriend down the street but refusing to give her name and saying he was unable to give her address.

Officer Gutchewsky told his partner, Officer Rockwell, that he had been acquainted with David Brewer in the past and believed he recognized the occupant of the vehicle as David Brewer--one of the suspects identified by tipster Gore--not his brother Clarence Brewer. Petitioner was then placed under arrest for giving false information to an officer in violation of Neb.Rev.Stat. § 28--744 (Supp.1972), ² and for loitering and prowling. The officers handcuffed him and placed him in the back seat of the police cruiser. Officer Rockwell then quickly searched Brewer's car, finding an axe handle, gloves and a billfold containing David Brewer's identification. The brief search was interrupted, however, when word was received that a second car, a blue Oldsmobile, was approaching. The second car was stopped by the other police officers one-half block away and was found to contain suspects Dittrich and Powell. Officer Rockwell remained to guard Brewer while Officer Gutchewsky and the other officers went to search the second car. After finding a sawed-off shotgun and a handgun, they placed Dittrich and Powell under arrest.

At this point, Officer Gutchewsky and his partner realized that one of the handguns Gore had said would be used in the robbery had not yet been found. They so informed their field lieutenant who had by then arrived on the scene. The lieutenant ordered Brewer taken to the police station and Brewer's car carefully searched and guarded pending the arrival of a tow truck. Without obtaining a search warrant, another police officer, Kelly, carefully searched Brewer's car at the scene of the arrest and found a .357 magnum handgun with ammunition lying on top of the glove compartment up under the dashboard. The weapon served as the basis for petitioner Brewer's conviction.

Petitioner contends that the search was unconstitutional under Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and cannot be justified by any of the classic exceptions to the general Fourth Amendment prohibition against warrantless intrusions. ³ However, the general proscription of the Fourth Amendment is against unreasonable, not warrantless, searches. The main thrust of petitioner's argument is directed toward the final, complete search of his Buick that occurred after the late arriving Oldsmobile had been stopped, Brewer, Dittrich and Powell arrested, and two of the three weapons discovered. Petitioner virtually concedes, and we hold, that the initial stop of his car by Officers Gutchewsky and Rockwell was constitutionally permissible. The stop was merely for investigative purposes and was based upon the officers' reasonable suspicion that criminal activity was afoot. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In assessing police justifications for arrests or intrusions of a type less offensive than full arrests, we take an objective view of all the facts and may evaluate the knowledge of all the officers collectively. White v. United States, 448 F.2d 250, 254 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972). The District Court properly concluded that the tipster's prior accurate information and matching description of Brewer's car, coupled with the car's proximity to the residence of one of the identified alleged participants, were enough to arouse reasonable suspicion for the investigatory stop. Orricer v. Erickson, 471 F.2d 1204, 1207 (8th Cir. 1973); United States v. Harflinger, 436 F.2d 928, 932 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971). Thereafter Brewer's giving of false information to the questioning officers provided them with probable cause to arrest him. Orricer v. Erickson, supra at 1207; United States v. Harflinger, supra at 934. Petitioner does not challenge the immediate, brief search of his car that was interrupted by the arrival of the other vehicle. His primary attack is upon the ultimate search that produced the handgun.

The Government contends that in addition to the officers' reasonable suspicion justifying Brewer's initial detention and questioning, probable cause for the subsequent search of his car became manifest from further developments at the scene. The presence of both cars, three of the four suspects and two of the three weapons served to verify the tip and support the officers' belief that criminal activity was underway. However, analysis of the justification for such a warrantless automobile search must be split into two inquiries: first, whether the circumstances gave the officers probable cause to search the car and, second, whether sufficient exigencies were present to justify an immediate search without waiting to obtain a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 463--64, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

After a careful review of the instant record, we believe the developments at the scene serving to corroborate Gore's tip were sufficient to give the officers probable cause to search Brewer's car in the belief that it contained a third weapon. An appropriate framework for analysis is provided by the two-pronged touchstone of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which, in the circumstances, we believe was satisfied by Gore's tip.

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