Carpenter v. Sigler

• Decision Date: 20 January 1970
• Docket Number: No. 19668.,19668.
• Citation: 419 F.2d 169
• Parties: Stuart CARPENTER, Appellant, v. Maurice SIGLER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.2d 169 (1969)

Stuart CARPENTER, Appellant, v. Maurice SIGLER, Appellee.

No. 19668.

United States Court of Appeals Eighth Circuit.

December 23, 1969.

Rehearing Denied and Rehearing Denied January 20, 1970.

William G. Line, Fremont, Neb., for appellant.

C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., for appellee; Clarence A. H. Meyer, Atty. Gen., Lincoln, Neb., with him on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and HEANEY, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied January 20, 1970.

VAN OOSTERHOUT, Chief Judge.

Stuart Carpenter has taken a timely appeal from the denial by the District Court (Judge Van Pelt) of his petition for habeas corpus under 28 U.S.C.A. § 2241. Carpenter was convicted by the state court of burglary in violation of § 28-532 R. S. Nebraska and possession of burglary tools in violation of § 28-534 R. S. Nebraska. Concurrent sentences of three-years imprisonment were imposed. The conviction was affirmed, State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129.

Carpenter contends that certain burglary tools were improperly received in evidence at his trial because they were obtained as a result of an unlawful search and seizure in violation of his Fourth Amendment constitutional rights. The trial court, after an evidentiary hearing, rejected such contention setting forth the basis of its decision in a well-considered memorandum opinion. (Not reported.)

We hold that the court's findings upon which its dismissal order is based are supported by substantial evidence and that its decision was not induced by any erroneous view of the law. We affirm.

The basic facts, with respect to which there is no substantial dispute, as found by the trial court may be summarized as follows:

Early on the morning of April 12, 1966 at approximately 3:30 a. m. officers Sam Austin and William Cowan of the Blair, Nebraska, city police department were patrolling the streets of that city. Blair is a town of approximately 2,000 persons which at the time of this incident had been plagued by a series of burglaries. The officers noticed a car containing two men driving slowly through the streets, located off the main highway, in Blair. The officers did not recognize the car and noticed that it had out of county license plates. The officers kept the vehicle under surveillance for a period noticing it slowly move by several business establishments which were closed. Then by the use of their flashing red light, the officer signaled the driver to pull the vehicle to the curb. No traffic violation was observed. The driver of the auto complied with the flashing red light and the cars stopped with the police car approximately twenty-five feet behind the other auto.

The driver of the auto alighted from his vehicle and went back to the police car, while the passenger remained seated in the car. The driver produced a valid Nebraska drivers license which identified him as Stuart Carpenter, the petitioner in this action.

While Carpenter was talking to officer Austin, officer Cowan left his position in the police car and proceeded to the passenger side of the Carpenter auto where Sherman Hawkins was sitting. Officer Cowan asked Hawkins to step out of the car. To this request Hawkins complied and while getting out of the car, Hawkins evidently bumped some object on the floor of the vehicle which gave a noise of metal hitting metal. Officer Cowan heard this sound and shined his light inside thereby seeing the ends of two pry bars sticking out of a sack on the floor of the car. Upon getting out of the car, Hawkins was searched for weapons by officer Cowan.¹ No weapon or other incriminating evidence was found.

Officer Cowan then asked Hawkins to step to the rear of the car where officer Austin was talking to Carpenter. At this time all four men were in the light provided by the headlights of the police car. Officer Cowan then asked officer Austin to look in the Carpenter auto. Austin walked forward to the car and shined his light into the vehicle and observed assorted tools on the floor and gloves on the front seat.

After seeing the tools in the car, officer Austin returned to the others and asked Carpenter and Hawkins why they had the tools in their possession. Carpenter replied that they were used in his business. The officer then asked Carpenter why he was in the area, and he replied that he was looking for a man named Jimmy Ward.

Officer Cowan then asked Carpenter to drive to the police station, which he did. The officer contacted the county sheriff who came to the station and recognized Hawkins as a "known burglar." Carpenter and Hawkins were then locked in the county jail and their car left in front of the Blair police station over night. Nothing was removed from the car. The next morning a warrant was obtained for a search of the car reciting probable cause to believe that the auto contained burglary tools.

The search of the auto revealed numerous tools that could be used in a burglary and especially a broken screwdriver handle which matched a broken screwdriver found at the scene of the burglary for which the pair were convicted. The tools seized under the warrant were introduced at the trial of the petitioner for burglary and possession of burglary tools. It is the use of these tools in evidence which is the basis of the petitioner's claim for relief.

It is argued in this case that the petitioner's Fourth Amendment² rights were violated when the police stopped his car and eventually found burglary tools in his possession. The issue can only be resolved by an examination of the police activity in this case in light of the Fourth Amendment principles.

The Supreme Court has recognized that the protection of the Fourth Amendment applies at all times whenever an individual has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576. It is quite clear that a person driving an automobile has such an expectation and is therefore protected by the Fourth Amendment. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. There is no doubt that petitioner was protected by the Fourth Amendment when he drove through the streets of Blair, Nebraska.

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

The important Fourth Amendment issues therefore are whether there was a "search" or "seizure" or both in this case and whether they were "reasonable."

The Supreme Court recently in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889, defined the Fourth Amendment term seized for the purpose of police-citizen street encounters. The Court said:

"It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized\'

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