Lipton v. United States

• Decision Date: 23 September 1965
• Docket Number: No. 19541.,19541.
• Citation: 348 F.2d 591
• Parties: Dennis Paul LIPTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

348 F.2d 591 (1965)

Dennis Paul LIPTON, Appellant, v. UNITED STATES of America, Appellee.

No. 19541.

United States Court of Appeals Ninth Circuit.

July 27, 1965.

Rehearing Denied September 23, 1965.

F. Alfred Aycock, Fresno, Cal., for appellant.

Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Sec., Donald C. Smaltz, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before JERTBERG and BROWNING, Circuit Judges, and BOWEN, District Judge.

BOWEN, District Judge.

Dennis Paul Lipton, appellant here, appeals from the judgment and sentence imposed by the Trial Court pursuant to his conviction by the Court sitting without a jury on the one-count indictment charging appellant under the Dyer Act with the unlawful transportation in interstate commerce of a 1951 Chevrolet automobile known to him to have been stolen.

In the Trial Court, the appellant upon his request was assigned counsel by the Court, was arraigned and pleaded not guilty, and through his counsel moved to suppress the evidence discovered by a city motorcycle patrolman respecting appellant's possible violations at Bakersfield of California's vehicular traffic laws, and leading to appellant's arrests, first, for driving without a driver's license, and second, for driving a stolen motor vehicle and finally to the charge in said indictment of his Dyer Act violation. The motion to suppress was denied by the Trial Court which set the case for jury trial, a jury trial was had, but a mistrial was ordered because the jury was unable to agree upon its verdict. Thereupon, the appellant waived jury trial and consented to trial before the Court without a jury, and at such non-jury trial the Court found the appellant guilty as charged, and initially imposed against him a twoyear sentence, but later reduced it to one year, ten months and fifteen days.

The Trial Court under 18 U.S.C.A. § 2312 (the Dyer Act) had, and this Court under 28 U.S.C.A. §§ 1291 and 1294 has, jurisdiction.

Appellant's assigned errors, though not stated in his words, are in substance: (1) That there was no legal right, justification or probable cause for the officer's stopping the automobile driven by appellant and investigating appellant's driver qualifications, and (2) that the arrest of appellant was without probable cause and was unlawful.

On June 18, 1964, Bakersfield, California, motorcycle police patrol officer Snow while on traffic control duty observed appellant, a youth 18 or 19 years old, driving on a city street in Bakersfield a 1951 Chevrolet automobile with Arizona state license plates. Snow was a traffic control motorcycle patrolman whose main duty pertained to traffic control work. Pursuant to his assigned duty and utilizing the red light on his motorcycle, officer Snow stopped the Chevrolet driven by appellant to see if the driver had a driver's license.

Officer Snow asked to see appellant's driver's license, but the latter was unable to produce a driver's license or any other identification, and told the officer that he had left the license at his home. The officer then arrested the appellant for not having a driver's license or other evidence of his identity, as required by the California Vehicle Code § 40302(a). Snow then inquired of the appellant concerning his ownership and registration of the Chevrolet. Appellant told the officer he had purchased the car from his aunt, Helen Dynia, in Phoenix for $200, and produced a registration certificate in her name and said his own name was David Minsky. Upon further questioning concerning his aunt, the appellant became evasive, and did not know her street address or in what section of Phoenix she resided.

In view of the foregoing officer Snow became suspicious, and via his motorcycle radio called the Bakersfield police desk sergeant and requested information as to whether the Chevrolet was a stolen vehicle. While that radio communication was occurring, appellant said he might have some identification, went around to the other side of the car "as if to get into the glove compartment," but instead of stopping there he then broke and ran, the officer pursued him on foot for about two blocks, overtook the appellant and returned with him to the officer's motorcycle. Then officer Snow, in response to his radio inquiry, was informed that the Chevrolet had been reported stolen by the Arizona highway patrol. Thereupon, appellant was arrested again, this time for driving a stolen vehicle, and was turned over to a detective of the Bakersfield police department for further investigation and transportation to that department.

The foregoing evidence related to events occurring before and at the time of appellant's final arrest by officer Snow.

No acts of Congress governing the conduct of inspecting and arresting officers in cases relating to traffic control on the public highways have been cited or brought to our attention, and we are not advised of any. In United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210, 217, the Supreme Court held:

"* * * that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity."

Likewise in Burks v. United States, 9 Cir., 1961, 287 F.2d 117, cert. denied 369 U.S. 841, 82 S.Ct. 868, 7 L.Ed.2d 846, this court at page 122 held:

"State law determines the validity of arrests without warrants, subject to such minimum standards as the Supreme Court may rule are required by constitutional standards. * * (citations omitted). Thus it is not relevant that appellant was finally indicted for a federal offense; if his arrest was valid under state law, the subsequent search and seizure was valid and the evidence so obtained admissible in the federal prosecution."

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