Frye v. United States, 18145.

Decision Date27 March 1963
Docket NumberNo. 18145.,18145.
Citation315 F.2d 491
PartiesWilliam Ernest FRYE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Hillel Chodos and Sheldon G. Bardach, Beverly Hills, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and Norman T. Ollestad, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before JERTBERG and DUNIWAY, Circuit Judges, and ROGER T. FOLEY, Senior District Judge.

DUNIWAY, Circuit Judge.

Frye appeals from his conviction, following a trial by the court, under a one-count indictment which charged that he and one Barr had in their possession a 12-gauge shot gun with an 8-inch barrel, a firearm as defined in 26 U.S.C. § 5848, which had not been registered with the Director, Alcohol and Tobacco Tax Division, Washington, D. C. The offense is a violation of 26 U.S.C. § 5851. Barr was acquitted by the court.

Frye makes two contentions:

1. That the evidence against him was obtained as a result of an unreasonable search and seizure, and

2. That section 5851 is unconstitutional, when read with section 5861, because it violates the due process clause of the fifth amendment to the Constitution and is also unconstitutional because it violates the eighth amendment to the Constitution. We conclude that Frye's conviction must be affirmed.

The evidence, stated most favorably to the government, discloses that Frye and Barr were arrested on March 22, 1962 by a motorcycle policeman of the city of Monterey Park, California. The policeman was stationed at a principal intersection in the town, at about half past eleven in the morning, when he saw Frye driving a car in which Barr was a passenger. One of the tail lights of the car was broken, and the car was emitting excessive smoke and making excessive noise. The policeman followed the car, directed the driver to pull over to the curb, dismounted from his motorcycle, approached the driver and asked for his operator's license. Frye produced a temporary license. The policeman, considering that this was inadequate identification, because a temporary license can readily be obtained and is easily altered, asked for additional identification. Frye then produced a registration as an ex-convict. (This was apparently required by the adjoining County of Santa Ana sic — should be Orange). The policeman observed numerous tools lying on the floor in the back of the car, including wrenches, screw drivers, pliers and a "prybar." He asked Frye his occupation, and Frye stated he was a maintenance man presently unemployed and seeking employment.

The policeman and Frye then walked to the rear of the car where the policeman called Frye's attention to the smashed tail light, and asked to examine the interior of the trunk. Frye voluntarily opened the trunk and the policeman checked it, finding nothing. The trunk was then closed by Frye. At this point Barr left the vehicle and asked the policeman "Is this a routine stop or were you on call?" He was told that it was a routine stop. The policeman asked Barr for identification, which was produced, and he then asked Barr what he had been arrested for, receiving a reply that he had been arrested twice in the State of Arizona, "once for fighting and once for drunk."

The three men then stepped to the passenger side of the vehicle and the officer observed that the pupils of both men's eyes were "very pinpointed," and he asked if they used narcotics. Both men said no, and displayed their arms for the purpose of showing that there were no marks on them. In order to do this Barr removed his jacket and the policeman then saw two shotgun shells sticking out of the pocket of Barr's "Levis." He asked Barr what he was doing with them and Barr said that he had done some trap shooting a couple of days before and had left the shells in his pocket. The policeman then asked Frye whether he had a weapon in the vehicle. The reply was "No, why should I have a weapon in the vehicle?" The policeman asked "if it would be all right if I looked through the car, and he said `yes, go ahead,' at which time * * * I reached under the front seat * * * and I felt a metal object. I pulled this object out and it was a sawed-off shotgun." He then placed both men under arrest. He summoned help and when help arrived, the men were searched. The gun was loaded. Two shotgun shells were found in Frye's pocket and two boxes of shotgun shells were found in the glove compartment of the car. On cross-examination, the policeman also stated that Frye had told him that he was on probation for burglary.

The gun and the shotgun shells were duly identified and offered in evidence at the trial. Before trial, counsel made a motion to suppress the evidence, and this motion was renewed at the trial. The court denied it. The court made special findings in which it found substantially all of the foregoing facts and concluded that the search was incident to a lawful arrest. The government offered affirmative proof, by a Certificate of Non-Registration from...

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