Heffley v. Hocker

• Decision Date: 09 December 1969
• Docket Number: No. 22661.,22661.
• Citation: 420 F.2d 881
• Parties: James A. HEFFLEY, Appellant, v. Carl HOCKER, Warden, Nevada State Prison, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

420 F.2d 881 (1969)

James A. HEFFLEY, Appellant, v. Carl HOCKER, Warden, Nevada State Prison, Appellee.

No. 22661.

United States Court of Appeals Ninth Circuit.

December 9, 1969.

James A. Heffley, in pro. per.

Harvey Dickerson, Atty. Gen. of Nevada, Carson City, Nev., for appellee.

Before HAMLEY and MERRILL, Circuit Judges, and POWELL, District Judge.^*

HAMLEY, Circuit Judge:

James Alvin Heffley, serving a life sentence in Nevada State Penitentiary, appeals from an order denying his application for a writ of habeas corpus.

Heffley's incarceration is pursuant to a burglary conviction and a subsequent habitual criminal conviction obtained in 1966. The burglary conviction was upheld on appeal on March 20, 1967, one justice dissenting. Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967).

Heffley alleged in his application for a writ that he was deprived of his Fourth Amendment rights because documents seized during an illegal search of his automobile were received in evidence against him at his state burglary trial.

The facts pertaining to the seizure of these documents are not in dispute. On November 13, 1965, Officer George Santich of the Sacramento, California police department, received an order to investigate a report that a person driving a 1957 blue and white Buick with license number LUS 507 was trying to sell some guns. Sometime thereafter Santich saw this automobile being driven along a Sacramento street. Santich drove along behind the Buick until it stopped for a traffic light. He then got out of the police car and approached the other car. As he did so he observed a large quantity of guns, partially covered up, on the back seat of that vehicle.

Santich asked the driver of the Buick, Heffley, for his identification and driver's license. As Heffley was in the process of getting his wallet, Santich observed the butt end of a gun protruding from under the seat where Heffley was sitting. He then asked Heffley to get out of the car, and placed him under arrest for possession of the gun. Santich did not have a warrant for Heffley's arrest. The officer called for another squad car to take Heffley to police headquarters. Santich then drove Heffley's car about three blocks to the same police station.

Although Officer Santich looked over the guns in the back seat of the Buick when he arrested Heffley, he made no exploratory search of the car at that time. Heffley was removed to the police station within three minutes after the arrest. Santich placed the Buick in a private stall at the police station and, without a search warrant, immediately searched "the whole car, the trunk, back seat, under the hood, wheels, and everything." Heffley was in police custody in another part of the police station at that time. After the search was completed, the car was taken to a private garage and impounded.

In the course of his search, Santich found the documents in question on the rear floor of the Buick. He had not seen them before conducting this search. The documents consisted of two passports, a certificate of registration for a two-wheel trailer, and a certificate of ownership for a one-half ton pickup. All of these papers had been stolen during the burglary for which Heffley was convicted. They were received in evidence over the objection of Heffley's counsel that they were obtained as a result of an illegal search and seizure.¹

The district court questioned whether there was a search at all, under these facts, pointing out that most of the articles seized were in plain view in the rear portion of the sedan. The court conceded, however, that the documents here in question may have been covered or obscured by the guns and other paraphernalia.

In all probability, the documents were not visible from outside the automobile, since Officer Santich testified that he had not seen them before conducting the search. In any event, if it be assumed that the documents were plainly visible so that no search was required, that alone would not validate the seizure of the documents without first obtaining a search warrant. Amendment IV proscribes unreasonable seizures as well as unreasonable searches. See Pendleton v. Nelson, 404 F.2d 1074 (9th Cir. 1968).²

The facts of this case are distinguishable from those of Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067 (1968), in which a police seizure of a registration card found in an impounded automobile was upheld. While there was a police search of the Harris automobile, the court stated that the registration card was not discovered or seized while the police were conducting the search.

The impounded car was being held in a place open to the weather and it had begun to rain. The windows of the car were rolled down and the doors were unlocked. The officer opened the front door on the passenger side "in order to secure the window and door." As he did so he saw the registration card lying face up on the metal stripping over which the door closed. The Supreme Court held that since the officer had a right to open the door in his effort to protect the vehicle, he had a right to seize the card which was then plainly visible and could be obtained without an unauthorized entry. The Court made it clear that, with regard to the registration card, no entry into the vehicle for the purpose of search, or even for the purpose of seizing a card visible from the outside, was involved. It was in this context that the Harris Court said:

"Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.

"Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. State of California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634, 1635, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L. Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924)."

In our case the officer saw, from a point outside the car, weapons on the back seat of the car. The removal of the guns would probably have revealed the documents in question without the need of a further search or possibly, as the district court thought likely, the documents might themselves have been visible from the outside. But the officer still could not enter the unoccupied car after it reached the police garage without a warrant to search and seize, except for some other appropriate reason as in Harris. In Harris the officer's presence in the car was lawful — he was engaged in protecting the car by rolling up the windows and locking the doors. In our case, the officer's presence in the car was not lawful, for he was engaged in a seizure, if not a search, without a warrant. The "narrow circumstances" of Harris are not present here.

But the district court did not rely solely on the possibility that the documents were visible. That court's primary reason for denying the habeas application was that where, as here, the accused was arrested in his automobile in a traffic lane on a public street, a search of the vehicle made immediately after removal of the car to a nearby police station should be considered incident to and substantially contemporaneous with the arrest, and therefore reasonable under the Fourth Amendment.

The majority of the courts of appeals that have dealt with the problem support this view. See Price v. United States, 121 U.S.App.D.C. 62, 348 F.2d 68 (1965); United States v. Dento, 382 F. 2d 361, 365-366 (3rd Cir.1967); United States v. Powell, 407 F.2d 582, 585 (4th Cir.1969);³ United States v. Evans, 385 F.2d 824, 825 (7th Cir. 1967).⁴Contra: Barnett v. United States, 384 F.2d 848, 860-861 (5th Cir. 1967); Colosimo v. Perini, 415 F.2d 804 (6th Cir. 1969).⁵

The definitive Supreme Court decision in this area is Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). In that case the police arrested three men for vagrancy after receiving a report that the men were "acting suspiciously" because they had spent most of the night seated in a motorcar parked in a business district. The three men were immediately searched for weapons at the scene and then taken to police headquarters. Subsequently the police towed the car, which had not been searched at the scene of the arrest, to a garage and twice searched it. This search turned up evidence of a planned robbery, for which the trio was convicted. The police acted without a warrant in conducting this search and attempted to justify it on the ground that it was incidental to a lawful arrest. The Court rejected this argument, holding expressly that:

"Once an accused is under arrest and in custody, then a search of his automobile made at another place, without a warrant, is simply not incident to the arrest." Preston, at 367, 84 S. Ct. at 883.

The Price, Dento, Powell and Evans cases cited above were decided after Preston. In each, the court sought to distinguish Preston because the time interval between arrest and search was shorter than in Preston; or because, unlike Preston, a search of the vehicle on street was impracticable due to traffic or a gathering crowd; or because, unlike Preston, the search was related to the charge upon which the arrest was made; or because the accused was present when the search was made at the police station. In Barnett and Colosimo, Preston was held to be applicable despite factual differences of this kind.

Appellee attempts the same kinds of distinction between the facts of the instant case and those of Preston, claiming, for example, that the time lag and distance involved here were much less. However, reading the Preston precedent literally, as this court has consistently done in the past, we do not believe such distinctions are valid. See Pasterchik v....