Grundstrom v. Beto, Civ. A. No. CA 3-1767.

Decision Date18 September 1967
Docket NumberCiv. A. No. CA 3-1767.
PartiesDaniel GRUNDSTROM, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
CourtU.S. District Court — Northern District of Texas

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joel Jay Finer, Associate Professor of Law, Austin, Tex.; Warren Burnett, Odessa, Tex. (On Motion for Reconsideration only), for petitioner.

Crawford C. Martin, Atty. Gen. of Texas, Dallas, Tex.; Gilbert Pena, Asst. Atty. Gen., Austin, Tex., William F. Alexander, Asst. Dist. Atty., Dallas County, Dallas, Tex. (On Motion for Reconsideration, only), for respondent.

OPINION

WILLIAM M. TAYLOR, Jr., District Judge.

Petitioner is confined in the Texas penitentiary serving a 25-year sentence for the offense of armed robbery. By agreement of opposing counsel his application for a writ of habeas corpus was submitted on briefs. Because of the disposition herein made, it will only be necessary to consider Grundstrom's contention that the fruits of an unreasonable search were introduced in evidence against him at his state trial.

The record of the trial in the state court shows that on August 24, 1961, at approximately 3:30 A.M., the night clerk in a motel in Dallas, Texas, was robbed by a lone bandit. Shortly thereafter, and some four miles from the scene of this robbery, a Dallas police officer stopped an orange and white 1953 Mercury, having noticed that the car had a loud muffler, a violation of a Dallas city ordinance. Petitioner was a passenger in this car and his companion, the driver, failed to produce a driver's license at the officer's request. The officer thereupon instructed both men to get out of the car and seat themselves in the police car in which was also seated another police officer. Petitioner and his companion complied with this order and the officer then proceeded to search the Mercury. He tore out the kickboard beneath the glove compartment and found a paper sack containing money in bills and change, a handkerchief, and a gun, all lodged between the body and the inside of the car. When the officer confronted petitioner with the fruits of the search, he remarked, "this other boy didn't have anything to do with it." Petitioner was subsequently identified in a lineup by two motel employees as the person who committed the robbery.

The Fourth Amendment requires that no search shall be conducted in the absence of a search warrant. There are exceptions to the amendment and when the State relies upon an exception the burden is upon it to show the need for making use thereof. United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L.Ed. 59 (1951). Respondent contends that the search is justified on two grounds. First, the petitioner's companion, who was driving the car, was validly arrested for committing a traffic offense and the search was therefore incident to a lawful arrest. Secondly, that the officer had reasonable grounds to believe that the car in which petitioner was a passenger was the get-a-way car in which the robber fled and he therefore had probable cause to search the car.

The primary test to be applied in determining whether the search of a motor vehicle is valid is that of reasonableness. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). What is reasonable and what is unreasonable must necessarily be determined from the particular factual situation in which the issue arises.

The right to search a person incident to a lawful arrest has evolved as an exception to the requirement of the Fourth Amendment that no search shall be conducted in the absence of a warrant based upon probable cause. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Once a valid arrest is shown the police may invoke the exception.

Limitations on the exception have developed as to the character of the articles sought for so that only (1) fruits of or implements used to commit the crime for which the accused was arrested, (2) items under the immediate control of the accused which it is unlawful for him to possess, (3) visible instruments of a crime at the scene of the arrest, (4) weapons by which the escape of the accused might be affected, and (5) mere evidence of the crime for which he was arrested, are subject to seizure. Weeks v. United States; Carroll v. United States, supra; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

The permissible scope of the search is the place where the arrest is made. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

A search which is not restricted to one of the above items or which exceeds the permissible scope of the search is exploratory and unreasonable. Go-Bart Importing Company v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).

If, under the facts of the instant case, "the objects sought for and those actually discovered were not properly subject to seizure," Harris v. United States, 331 U.S. 145 at 154, 67 S.Ct. 1098 at 1103, 91 L.Ed. 1399 at 1407, under the foregoing limitations, then no reason for the search existed and it is relegated to the classification of general and exploratory. Go-Bart Importing Co. v. United States, supra.

a. The Instrumentalities and Means by which the Crime was Committed.

The crime committed which gave rise to the search was a traffic offense, operating a motor vehicle with a loud muffler. The means by which the offense was committed was the vehicle itself and, more specifically, the muffler. The officer most certainly could not have disassembled the inside of the car looking for the muffler. United States v. Tate, 209 F.Supp. 762 (D.Del.1962). The search of the interior of a motor vehicle bears no relation to seeking the means by which a traffic offense was committed. Distinguishable is the case in which the operator of a motor vehicle who has committed a traffic offense appears to be under the influence of an intoxicant wherein it is arguable that the officer has reasonable grounds for searching the car for liquor or drugs. See Richardson v. State, 163 Tex.Cr.R. 585, 294 S.W.2d 844 (1956); Tabb v. State, 154 Tex.Cr.R. 613, 229 S.W.2d 628 (1950); Thompson v. State, Tex.Cr.App., 398 S.W.2d 942 (1966); Anderson v. State, Tex.Cr.App., 391 S.W.2d 54 (1966); Ybarra v. State, 160 Tex.Cr.R. 487, 272 S.W.2d 374 (1954); Church v. State, 206 Tenn. 336, 333 S.W.2d 799 (1960); Stevens v. State, 274 P.2d 402 (Okla.Crim.1954). These searches, however, find their justification in the fact that they were incident to an offense for which the officer had probable cause to arrest, i. e., driving under the influence of drugs or driving while intoxicated, offenses for which there exists means or instruments of commission.

Similarly, the search cannot be justified as an effort to locate the fruits of the offense for there are no fruits of driving with loud mufflers.

b. Property by which the Escape of the Person may be effected.

After stopping the Mercury, the officer did not search petitioner and his companion for weapons but instructed them to go sit in the police car which they did. It was at this time that the search took place.

To permit all searches incidental to an arrest to be justified on the theory that the officer is searching for weapons would be to allow wholesale fishing expeditions whenever a legal arrest is made. United States v. Tate, supra. Contrariwise, it must be recognized that policemen spend much of their time dealing with dangerous criminals, some of which are well dressed and peaceful appearing as the majority of law-abiding citizens, and a search for weapons is necessary in many instances. But just when the search becomes necessary must be tested by the standard of reasonableness. If, from the totality of the circumstances presented to the officer he has reasonable grounds to believe that he is in danger of bodily harm or injury or that the person he encounters is armed or is dangerous, justification for a search for weapons exists. See United States v. Washington, 249 F.Supp. 40 (N.D. Ill.1965); People v. Thomas, 31 Ill.2d 212, 201 N.E.2d 413, cert. den. 380 U.S. 936, 85 S.Ct. 948, 13 L.Ed.2d 824 (1965); Brinegar v. State, 97 Okl.Cr. 299, 262 P.2d 464 (1953); State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448 (1964); Elliot v. State, 173 Tenn. 203, 116 S.W.2d 1009 (1938). Where, however, as in this case, the occupants of the car are seated in the rear of a police car with an officer present in the car with them and the police have made no effort to search their persons for weapons, and neither of the officers has reason to believe that the individuals are armed, or dangerous, and neither has done anything from which the officers could believe their own persons were in danger, a search of the car for weapons by which the petitioner and his companion might seek to escape is unreasonable. See State v. Michaels, 60 Wash.2d 638, 374 P.2d 989 (1962); State v. Scanlon, Brinegar v. State, supra.

c. Property the Possession of which is a Crime.

A search for contraband is reasonable when conducted incident to a traffic violation only when the arresting officer observes some occurrence other than the traffic offense itself which reasonably leads the officer to believe that the motorist possesses contraband. See State v. Krogness, 238 Or. 135, 388 P.2d 120, cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964) (large rifle seen through window giving rise to belief that contraband game animals were being transported); People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57 (1956) (suspicious...

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    ...is, if anything, the automobile itself, a search of any portion of its Interior cannot be justified on this ground. (Grundstrom v. Beto (N.D.Tex.1967) 273 F.Supp. 912, 916.) Moreover, there are no 'fruits' of such an offense, and the 'evidence' thereof is not subject to search and seizure a......
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