Gullett v. United States

• Decision Date: 27 December 1967
• Docket Number: No. 18890,18898.,18890
• Citation: 387 F.2d 307
• Parties: James D. GULLETT, Appellant, v. UNITED STATES of America, Appellee. Delmar R. WARNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

387 F.2d 307 (1967)

James D. GULLETT, Appellant, v. UNITED STATES of America, Appellee.

Delmar R. WARNER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18890, 18898.

United States Court of Appeals Eighth Circuit.

December 27, 1967.

Sam F. Hamra, Jr., Springfield, Mo., for appellant, James D. Gullett.

Rolland L. Comstock, Springfield, Mo., for appellant, Delmar R. Warner.

Anthony P. Nugent, Jr., Asst. U. S. Atty. for Western District of Missouri, for appellee; Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., and Bruce C. Houdek, Asst. U. S. Atty., on brief.

Before VOGEL, Chief Judge, and BLACKMUN and LAY, Circuit Judges.

VOGEL, Chief Judge.

These are consolidated appeals from judgments of conviction entered June 8, 1967, based upon jury verdicts finding both defendant Gullett and defendant Warner guilty of violating 15 U.S.C.A. § 902(g), which proscribes interstate transportation of stolen firearms, and finding defendant Gullett guilty of violating 15 U.S.C.A. § 902(e), which proscribes interstate transportation of a firearm by one convicted of a crime punishable by imprisonment for over one year.

The claims of error herein arise out of the arrest of the two defendants and the trial court's denial of their motions to suppress evidence seized at the time of arrest.

The arrest of the defendants occurred on a public highway in Missouri, without warrant, and by members of the Missouri State Highway Patrol. The Patrol has the power of investigation, arrest, search and seizure on Missouri highways. §§ 43.180, 43.200 V.A.M.S. Rodgers v. United States, 8 Cir., 1966, 362 F.2d 358, 361, certiorari denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454.¹

Both defendants made motions to suppress certain evidence obtained by the Highway Patrolmen at the time they were stopped and arrested.

A review of the testimony taken at the hearings on the motions reveals the following: On May 31, 1966, at about noon, three young men, two of them being defendants Gullett and Warner, and a young woman stopped at a tire shop in Lebanon, Missouri. The operator of the tire shop sold them one tire for $7.50, which defendant Gullett paid for in change, mostly quarters. (Gullett claims that they purchased two tires but concedes he paid for one of them with coins.) One member of the party attempted to sell the operator of the tire store cigarettes but the latter declined, although it was indicated that they had different brands of cigarettes for sale. After the party left at approximately 1:00 p. m., the tire shop operator called his son, the Lebanon police chief, and told him that the occupants of a gray 1955 Buick had paid for a tire with quarters and had offered to sell him cigarettes. He also described the number of people in the car and gave the police chief the license number thereof. The information was passed out by the Highway Patrol Communications Division in Rolla, Missouri, at about 1:15 p. m. The radio operator testified:

"Q. And what was the content of that?

"A. They radioed our office information, Gray 1955 or \'56 Buick, Ohio BD345, stated it left Lebanon on Highway 66, occupant trying to sell a quantity of cigarettes. They had purchased tires, using quarters, and left about one p. m. It was occupied by, they stated, three boys and one girl."

Sergeant Claud Arnold of the Missouri Highway Patrol called in at 1:21 p. m., advising that he had located the car near Conway. Arnold, together with Sergeant Wilson, also of the Highway Patrol, approached the car and by signal got its driver to pull to the side of the road, where it stopped. According to Sergeant Arnold, defendant Warner was the driver of the car. Arnold asked him for his driver's license, which Warner did not produce. Arnold then asked for proof of ownership of the car and was told that it belonged to James Gullett, who was in the back seat. Defendant Gullett went through his billfold and produced three papers which tended to prove ownership of three cars other than the 1955 gray Buick. The three men occupants were thereupon ordered out of the car and told they were under arrest "for investigation of car theft".

After the defendants had been told they were under arrest, Sergeant Arnold asked them to open the car trunk. This the defendant Gullett did without objection. The trunk appeared full of luggage, clothing, cigarettes and a gun or guns protruding from a wrapped coat. Search of the trunk disclosed three rifles. Two pistols were found in the car, one under a pillow and the other behind the back seat. In addition, the officers found between 30 and 40 cartons of cigarettes and several loose packages.

Prior thereto information had been received by the patrolmen of various burglaries, break-ins and other crimes in the area with quantities of cigarettes taken, as well as change from coin machines.

The trial court, after an extensive hearing, denied the motions to suppress the evidence and return the property seized.

In denying the motions, the trial court held that the evidence seized was not tainted by an illegal search. This court must affirm that finding provided it is based on substantial evidence and no clear error appears. Miller v. United States, 8 Cir., 1966, 354 F.2d 801, 808. Any question involved in the credibility of witnesses was for the determination of the trial judge and will not be reconsidered by this court on appeal. Miller v. United States, supra, at page 801; United States v. Gorman, 2 Cir., 1965, 355 F.2d 151, 154, certiorari denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027; United States v. Vita, 2 Cir., 1961, 294 F.2d 524, 528, certiorari denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788.

Whether there was a constitutionally valid arrest here depends of course upon whether the patrolmen had probable cause therefor. Were they, at the time they advised the four persons who had been in the Buick that they were under arrest, possessed of facts and knowledge of circumstances sufficient to warrant a reasonable person in believing that the defendants had committed or were committing a crime? Beck v. State of Ohio, 1964, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Henry v. United States, 1959, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134.

It is the defendants' contention that the arrest here occurred the moment their movement upon the highway was interrupted and restricted by the patrolmen. In assessing what the officers knew, or had reasonable grounds for believing at that time, they point out that it consisted only of the fact that the occupants of this car had purchased a tire, paying for it in quarters, and that they had offered to sell cartons of cigarettes. The trial court's determination that the arrest was made subsequently when the defendants were told by the officers that they were under arrest "for investigation of car theft" is supported by substantial testimony and will not be disturbed by this court. A like contention was made by the defendant in Rodgers v. United States, supra, wherein Judge Blackmun stated for this court, at page 362 of 362 F.2d:

"The defense asserts basically, however, that the arrest was premature; that it took place the moment the defendant was stopped and his journey interrupted; and that at that moment there was no probable cause to effect an arrest. It is true that, in one sense of the word, Rodgers was then `arrested\', that is, slowed and halted in his progress down the highway, but this is not the arrest by police action which brings into play all the requirements of probable cause.

"The highway patrol troopers were merely making a check of this white Buick which corresponded with the vehicle reported to them as stolen. They were well within their rights and, indeed, their duty, in so doing. Even a routine license check and its concomitant temporary delay of a driver, where there is nothing arbitrary or harassing present, do not constitute an arrest in the legal sense. D\'Argento v. United States, 353 F.2d 327, 334 (9 Cir. 1965); Lipton v. United States, supra, p. 593 of 348 F.2d 591. See Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960)."

The testimony of what transpired after the car was stopped involves some contradiction. These defendants claim that the third male occupant of the car, Sparks, was driving. The patrolmen each testified that defendant Warner was driving the car. Regardless of who was driving, such person was unable to produce a driver's license, a violation of Missouri law, V.A.M.S. § 302.181(2). When, thereafter, asked to produce registration or proof of ownership of the car being driven, the driver stated that defendant Gullett owned the car. Gullett testified during the hearing on the motions to suppress that he did produce proper registration for the automobile. The patrolmen testified that defendant Gullett did not produce proper registration for the automobile but did produce three different titles for cars other than the gray 1955 Buick which he claimed to own. (These three titles were retained by the patrolmen and introduced as exhibits at the hearing and trial.) It was at this point that the patrolmen claim that the defendants were formally advised that they were under arrest "for investigation of car theft". Defendant Gullett denies ever being so informed. A resolution of the factual disputes involved a finding of credibility, one strictly for the trial court's determination. We take it, then, as established that when the car was stopped the defendants were unable, upon request, to produce registration for the car, that the driver had no driver's license, that they did produce three car titles for cars other than the one they were driving, and that they were then formally advised of their arrest.

Defendants in this court make much of the fact that they were arrested for car theft but not tried on that offense. We consider the point irrelevant. A search is not invalidated because it reveals an additional and different...