Marshall v. United States, 26037.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation422 F.2d 185
Docket NumberNo. 26037.,26037.
PartiesArthur Earl MARSHALL, Appellant, v. UNITED STATES of America, Appellee.
Decision Date22 January 1970

422 F.2d 185 (1970)

Arthur Earl MARSHALL, Appellant,
UNITED STATES of America, Appellee.

No. 26037.

United States Court of Appeals, Fifth Circuit.

January 22, 1970.

422 F.2d 186

Robert Watson, Houston, Tex. (Court-appointed), for appellant.

Morton L. Susman, U. S. Atty., Donald L. Stone, James R. Gough, Asst. U. S. Attys., Houston, Tex., for appellee.

Before COLEMAN and GOLDBERG, Circuit Judges, and SKELTON, Judge of the Court of Claims*.

GOLDBERG, Circuit Judge:

Appellant Arthur Earl Marshall posits two fallibilities in his conviction for possession of an illegally made firearm.1 First, he asserts error in the evidentiary use of the fruit of a search he deems illegal. Secondly, he claims that his conviction violated Fifth Amendment rights vouchsafed to him through Marchetti,2 Grosso,3 and Haynes.4

422 F.2d 187

The facts can be briefly summarized. On September 9, 1967, Roland A. Kinsey, Jr., a deputy sheriff in Harris County, Texas, was on his regular tour of duty as an accident investigator. At about 1:15 a. m. on that date he stopped to get a cup of coffee at a drive-in restaurant. While at the drive-in, he approached a car parked in the parking lot. Looking into the automobile, he observed appellant Marshall reclining in the driver's seat, a hat pulled down over his eyes, apparently asleep. Shining his flashlight into the car, Officer Kinsey noticed a sawed-off shotgun resting on the floorboard between Marshall's feet. He then opened the car door, awakened Marshall, and placed him under arrest.

On March 11, 1968, Marshall was tried in the United States District Court for the Southern District of Texas for possession of an illegally made firearm. On that date he was found guilty by the jury, and on March 28, 1968, he was sentenced by the court to a term of five years in prison. He now appeals his conviction to this court.


At trial Marshall objected to the introduction of evidence concerning the shotgun on the ground that it had been obtained as the result of an illegal search. He contended that evidence regarding anything which Officer Kinsey observed by directing the beam of his flashlight into the car should be ruled inadmissible.

The trial judge heard evidence outside the presence of the jury to determine the merits of this claim. Officer Kinsey was questioned about the events preceding the arrest. According to his testimony, when he arrived at the drive-in his wife told him that the car had been parked in the parking lot for about an hour with its lights on and the driver lying back in the seat. During that time no one had emerged from the car to order food. Officer Kinsey said he regarded this as a highly unusual circumstance. His purpose in going over to the car, he explained, was to see whether anything was wrong. Officer Kinsey's testimony concerning his motivation for investigating the car was not contradicted.

After hearing this testimony, the trial judge overruled Marshall's objection to the admission of the evidence. He stated that, in his opinion,

"this was not a search of the car in the normal sense of the word. * * Officer Kinsey\'s purpose was not to search it and not to arrest, but to see if anything was wrong, sick or needed help, and I see nothing wrong in an officer doing what he did. No more than looking inside the car to see if the occupants are ill or injured or need help or anything like that."

In his post-trial memorandum opinion the trial judge reaffirmed his ruling in these words:

"I incline to the view that there was no search of the automobile; but if there was, it was not illegal. The weapon fell within the plain view of the officer at a time when he was lawfully in a position to have that view. * * * The gun was therefore subject to seizure and admissible in evidence." Case citations omitted.

Marshall now urges this court to declare the evidence inadmissible as the result of an illegal search. At first blush it would appear that his contention raises two questions: (1) whether there was a search, and (2) if there was a search, whether it was illegal. The second question, however, is not disputed on appeal. The government now concedes that if Officer Kinsey was conducting a search by shining the beam of his flashlight into the interior of the car, the search was illegal.5 Consequently, the only question to be decided here is whether a Fourth Amendment search did in fact take place.

422 F.2d 188

Our starting point in analyzing this question must be the doctrine known as the "plain view" rule. Under this rule "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." Harris v. United States, 1968, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067, 1069. Evidence concerning "that which is in plain view is not the product of a search." United States v. Barone, 2 Cir. 1964, 330 F.2d 543, 544, cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (emphasis added); accord, Ker v. California, 1963, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726, 744; Agius v. United States, 5 Cir. 1969, 413 F.2d 915, 919; Creighton v. United States, 1968, 132 U.S.App.D.C. 115, 406 F.2d 651, 652; Shorey v. Warden, Maryland State Penitentiary, 4 Cir. 1968, 401 F.2d 474, 478, cert. denied, 393 U.S. 915, 89 S.Ct. 241, 21 L.Ed.2d 201.

Under the circumstances of the case before us, if Officer Kinsey had observed Marshall's shotgun on the floorboard of the car in broad daylight by the use of the naked eye, the evidence thereby obtained would clearly come within the scope of the plain view rule. Even Marshall concedes this.6 However, Marshall contends that the use of the flashlight as a means to detect the contents of the car transformed Officer Kinsey's activities into a search within the meaning of the Fourth Amendment.7 We cannot agree.

The view that the use of a visual aid such as a flashlight changes the character of a visual encounter by a police officer has been repeatedly rejected by the courts. Dorsey v. United States, 1967, 125 U.S.App.D.C. 355, 372 F.2d 928, 931 ("Both appellants conceded before us that this could properly have been done in the daytime. We do not think the need to employ a visual aid at night in the form of a flashlight converts this from lawful into unlawful conduct."); Petteway v. United States, 4 Cir. 1958, 261 F.2d 53, 54 ("It is well established that it is not a search to observe what is open and patent either in daylight or in artificial light."); United States v. Callahan, D.Minn.1964, 256 F.Supp. 739, 745 ("It does not constitute a search to observe that which occurs openly in a public place and which is exposed to visual observation, and this rule includes observations whether made in daylight or in artificial light."); see Safarik v. United States, 8 Cir. 1933, 62 F.2d 892, 895; cf. Haerr v. United States, 5 Cir. 1957, 240 F.2d 533.

Notwithstanding the abundant authority contrary to his position, Marshall contends that the use of a flashlight in the present case converted Officer Kinsey's visual scanning of the car into a search. He cites as his only authority a state court case, Pruitt v. State, Tex.Crim. App.1965, 389 S.W.2d 475. Pruitt involved a conviction for unlawful transportation of wine in a dry area. The Texas Highway Patrolman who arrested Pruitt testified that he stopped Pruitt's car, late at night on a deserted country road, to check Pruitt's driver's license. After Pruitt showed him his license, the patrolman directed the beam of his flashlight into the car and discovered the prohibited wine in the back seat of the car. The Texas Court of Criminal Appeals reversed Pruitt's conviction, holding that the evidence concerning the wine was the product of an illegal search.

422 F.2d 189

There is language in the Pruitt opinion which implies that the use of a flashlight converts what would otherwise be a non-accusatory visual encounter into a Fourth Amendment search. 389 S.W. 2d at 476-477. This language is, in our view, both unpersuasive and contrary to the great weight of authority.8 However, the basis of the holding in Pruitt appears to be the Texas court's view of the police officer's intent. The court concluded from the evidence in the record that the officer's real purpose in stopping Pruitt's car was to investigate for evidence of some law violation other than non-possession of a valid driver's license. 389 S.W.2d at 476. The Texas court's conclusion that the arresting officer had the intent to search for evidence of the commission of a crime makes the holding in Pruitt inapposite to the present case.

In the case before us there was no intent to conduct a Fourth Amendment search.

"A search implies an examination of one\'s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest." Haerr v. United States, 5 Cir. 1957, 240 F.2d 533, 535.

Here there was no probing, exploratory investigation for evidence of crime. According to Officer Kinsey's uncontradicted testimony, he was not motivated by an intention to search for evidence of a law violation. He was not even called to the scene as a law officer. He came merely as a husband to drink coffee at the restaurant where his wife was employed. She asked him to look at a car whose lights had been burning for an hour and whose occupants had not ordered anything from the restaurant. When he complied with her request, his investigation of the car was motivated by a desire to render assistance rather than an intent to uncover any contraband or other evidence of crime. Surely this samaritan investigation cannot give rise to a genuine Fourth Amendment complaint on the part of Marshall. Humanitarian scanning is not Fourth Amendment searching, even when it occurs after dark with the aid of a flashlight.

We do not hold, of course,...

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