Massey v. United States, 8447.

• Decision Date: 09 May 1966
• Docket Number: No. 8447.,8447.
• Citation: 358 F.2d 782
• Parties: Russell Lee MASSEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

358 F.2d 782 (1966)

Russell Lee MASSEY, Appellant, v. UNITED STATES of America, Appellee.

No. 8447.

United States Court of Appeals Tenth Circuit.

April 5, 1966.

Rehearing Denied May 9, 1966.

COPYRIGHT MATERIAL OMITTED

Paul S. Goldman, Denver, Colo., for appellant.

William T. Thurman, U. S. Atty. (Lorin J. Broadbent, Asst. U. S. Atty., on the brief), for appellee.

Before LEWIS and HILL, Circuit Judges, and STANLEY, District Judge.

ARTHUR J. STANLEY, Jr., District Judge.

The appellant was convicted in the United States District Court for the District of Utah, of violation of 18 U.S.C.A. § 2312, commonly called the Dyer Act. He appeals, raising three points of claimed error.

The first point relied upon is that the trial judge erred in denying the motion to suppress evidence. The facts relating to this specification are as follows:

Late in the evening of April 11, 1965, a Utah highway patrolman observed the appellant driving ninety miles an hour in a fifty-mile-an-hour zone. The officer stopped the appellant's car. Upon stopping him, the officer ordered the appellant out of the car, and searched him. The officer then obtained from the appellant his driver's license and a certificate of registration. The certificate purportedly showed the issuance to the appellant of a California license of the same number, ITF-754, as that on the car, but contained obvious erasures and alterations. Shortly thereafter the appellant was formally told that he was under arrest for speeding. Subsequently, a metal identification plate was taken from the doorpost of the car the appellant had been driving. The car was then towed to a garage and the appellant was taken into custody. The next day, two agents of the Federal Bureau of Investigation went to the garage and obtained the semi-confidential or "secret number" from the car. No search warrant was procured authorizing this search.

The appellant's motion to suppress the certificate of registration, the metal identification plate, and the secret number was heard by the trial court before the trial.

As to the registration certificate and the metal identification plate, the motion was denied. The trial court, relying on Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), and Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961), held that the actual arrest preceded the formal words of arrest and became complete when the appellant was stopped and searched. Under the circumstances, this ruling was correct. In the Henry case, although dealing with the problem in another context, the Court states:

"The prosecution conceded below, and adheres to the concession here, that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete." (361 U.S. p. 103, 80 S.Ct. p. 171).

The Supreme Court limited its holding to the case in question, but the reasoning is apposite here. In this case, the appellant was stopped by the officer, ordered from the car, and was searched. His liberty was restrained, and he undoubtedly felt that he was under arrest. The actual arrest took place at that time, although the formal words were not uttered until a few moments later.

Thus, the arrest preceded the search and seizure of the certificate of registration and the metal plate, and if the arresting officer had probable cause to make the arrest, the contemporaneous search incidental thereto was reasonable and therefore lawful. The officer testified that he had observed the appellant going ninety miles an hour. This was sufficient to give him probable cause to make an arrest for speeding, and it was for speeding that the arrest was made.

The arrest, probable cause existing therefor, served the function of a search warrant authorizing a search for things seizable in connection with the offense for which the appellant was arrested. Papani v. United States, 84 F.2d 160 (9th Cir. 1936). While it is true that the certificate and plate were unrelated to the offense, the search which produced them was not invalidated by their discovery and seizure. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Nor were the officers required to return them to the appellant because they were unrelated to the offense for which the appellant was arrested. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). In Cook v. United States, 346 F. 2d 563 (10th Cir. 1965), this court has said:

"* * * The offense premising the arrest was committed in the officer\'s presence and routine and lawful police procedures were followed throughout. A bona fide arrest for one offense often reveals evidence of another and more serious offense and is not rendered illegal because of the prior suspicions or knowledge of the police concerning such other offenses." (p. 565).

In that case the defendant had been arrested for the statutory misdemeanor of operating an automobile having a faulty muffler. A search of his car revealed a false Selective Service Notice of Classification. A judgment of conviction under 50 App.U.S.C. § 462(b) (2) was affirmed. This case is governed by the same rule. Insofar as the metal plate and the registration certificate are concerned, the motion to suppress was properly denied.

The "secret number" presents a somewhat different problem. The government conceded that under the rule of Simpson v. United States, 346 F.2d 291 (10th Cir. 1965), the search was illegal. Thus, direct evidence of the number was not to be introduced. However, the appellant contends that the only way the car could be identified at all was through the use of the secret number, and under the "poison fruits" doctrine, no evidence of identification of the car should have been allowed. The appellant also alleges error in the eventual introduction of the secret number into evidence.

It is true that the number was introduced, but this was brought about by the appellant himself. As part of his defense, the appellant established that the secret number had been obtained and that it differed from the number on the metal identification plate. At that point, it was proper for the government, in cross-examination, to establish that the number was substantially identical to the number on the tag, and that the difference was not material. The appellant cannot complain, after having himself opened the door.

As to the identification of the car through the secret number, the trial court deferred ruling until it could be established that the number either was or was not used in identifying the car. The evidence showed that the only number used in identifying the car was the number on the metal plate, that the secret number was not used, and that the secret number would only have confused the issue. In view of that evidence, the motion to suppress was properly denied. There can be no "poison fruits" where there are no...