Reed v. United States

Citation401 F.2d 756
Decision Date26 September 1968
Docket NumberNo. 19112.,19112.
PartiesNathaniel REED, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

George Howard, Jr., Pine Bluff, Ark., for appellant.

Robert F. Fussell, Asst. U. S. Atty., Little Rock, Ark., for appellee, W. H. McClellan, former U. S. Atty., W. H. Dillahunty, present U. S. Atty., Little Rock, Ark., on the briefs.

Before MATTHES and HEANEY, Circuit Judges, and REGISTER, Chief District Judge.

MATTHES, Circuit Judge.

A two-count indictment charged that defendant had violated 26 U.S.C. § 5851.1 He waived trial by jury. Upon finding defendant guilty as charged, Judge Young sentenced him to imprisonment for a period of "three years on the indictment as a whole." This appeal followed.

Omitting its formal parts Count I charged:

"That on or about May 20, 1967, in Pine Bluff, Jefferson County, Arkansas, and in the Eastern District of Arkansas, NATHANIEL REED, defendant herein, knowingly and unlawfully possessed a firearm, as defined by Section 5848(1), Title 26, United States Code, to wit, a weapon made from a 12-gauge shotgun, serial number 799461, with barrel 14 3/8 inches in length and with overall length of less than 26 inches, which firearm had been made in violation of Section 5821, Title 26, United States Code, in that the making tax of $200 had not been paid prior to the making of this firearm, and in that, prior to the making of such firearm, there was a failure to file a written declaration of intention to make such firearm, as required."

Count II was identical with respect to the date and place of the commission of the offense and the description of the firearm. The gravamen of the offense in this count was that the firearm had not been registered with the Secretary of the Treasury as required by 26 U.S.C. § 5841.

The trial, conviction and appeal occurred prior to the decision of the Supreme Court in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (January 29, 1968). Haynes holds that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under 26 U.S.C. § 5841 or for possession of an unregistered firearm under 26 U.S.C. § 5851. The Government concedes here that the defendant did not knowingly waive his constitutional privilege against self-incrimination and that the conviction under Count II cannot stand. See Dillon v. United States, 389 F.2d 381 (8th Cir., February, 1968). We agree and reverse the judgment under Count II with directions to dismiss that count.

This result does not dispose of Count I. Where, as here, a general sentence is imposed on more than one count it will be sustained if the defendant was properly convicted under any count. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Isaacs v. United States, 301 F.2d 706, 733 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). Defendant implicitly recognizes the validity of this proposition.

The questions at issue on appeal are: (1) whether the district court erred in denying defendant's motion to suppress the firearm because the search and seizure was unlawful and unreasonable; (2) whether the conviction of the offense of possession of the firearm made in violation of § 5821 is subject to the same infirmity of the offense of possession of an unregistered firearm. More precisely, do the facts bring this case within the principle promulgated in Haynes and the related cases of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (January 29, 1968).

PROBABLE CAUSE

Defendant challenged the validity of the search and seizure by a pre-trial motion to suppress in which he asserted that there was no probable cause for the arrest. After a full evidentiary hearing the court denied the motion. The evidence developed on the motion established that defendant was arrested by police officers without a warrant in the City of Pine Bluff, Arkansas. They acted in large measure upon information received from Gene Holland, the operator of the Rose Oil Service Station, located at 4211 Dollarway Road in Pine Bluff. Holland, whose testimony stands uncontradicted, stated that at approximately 2:45 a. m. on May 20, 1967, three automobiles "pulled up" to his station. One was a red and white 1960 or 1961 Chevrolet. Another, a 1955 white four-door Ford. The third, a dove-colored Falcon or Fairlane Ford. The occupants of the automobiles were Negroes. The driver of the Chevrolet purchased a small quantity of gasoline for which he paid $1.00. Holland observed the occupant of the 1955 Ford open the trunk of that automobile, remove a sawed-off shotgun and place the gun in the front seat or on the floorboard. Three of the group "huddled right there together * * * and was talking." He also saw one of the "boys" remove a pistol from the 1955 Ford and "stick" it in his pocket. Another went to the other side and "got one pistol and stuck it in his pocket, * * *." Thereupon the three automobiles left in "kind of a hurry." Immediately thereafter, Holland telephoned police headquarters, identified himself and detailed what he had witnessed. He was aware of a burglary of another Rose Oil Service Station. Additionally, he had called upon the police for assistance on three prior occasions: "one was for drunk"; "one was for a wreck"; and "one was for pulling a gun on me * * *."

When Holland was pressed on cross examination for the reason he reported the matter to the police, he stated: "Well, I thought — I thought they was aiming to rob the station. That's the most reason I called them. That's the most reason I called the law."

Holland's telephone message to police headquarters was relayed by radio to members of the Pine Bluff police force at approximately 3:00 a. m. The dispatcher described the three automobiles and advised that the occupants were in possession of one sawed-off shotgun and two pistols. Officer Blythe, who was one of the patrolmen who received the message, had personal knowledge of recent robberies in Pine Bluff committed with use of sawed-off shotguns. Shortly after the orginal dispatch, a police officer in another automobile radioed that he was pursuing "the three cars in question." Blythe and the officer accompanying him immediately proceeded to the designated vicinity to assist the pursuing officer. At Sixth and Laurel streets three police cars converged on three automobiles of the exact description furnished by Holland. One of the police vehicles formed a roadblock and stopped the automobiles. At the command of the officers the occupants emerged from their automobiles. They were questioned. The defendant admitted he was the driver of the 1955 Ford. Upon searching that automobile Blythe observed the sawed-off shotgun under the front seat and removed it. The pistols were not located by the officers. Officer Blythe then formally placed defendant under arrest. He was taken to the police station where he was booked for the possession of the weapon. There he falsely stated that his name was Australia Reed. Australia is defendant's brother.

The record reveals that the weapon was a 12-gauge shotgun having a barrel length of 14 3/8 inches, an overall length of 22 inches and a "pistol grip." One of the officers tested the weapon and found it would fire.

Defendant did not testify at the hearing on the motion to suppress. He did, however, take the stand during the trial of the case. His defense was that he did not know that the gun was in the automobile. This was in direct conflict with not only the testimony of Holland, but of one of the occupants of defendant's automobile, who stated that she observed defendant place the gun under the front seat while the automobile was on the premises of the Rose Oil Service Station. Defendant admitted he had been convicted of second degree murder in California and was on parole at the time of the incident in question.

Defendant asserts here as he did in the district court that the officers acted without probable cause and upon mere suspicion; that the arrest was subsequent to the seizure of the weapon and consequently was not based upon reliable information acquired before the search and seizure. Defendant's attack is based solely on his Fourth Amendment right to be secure against an unreasonable search and seizure. He has completely ignored the law of the place of arrest. The principle is established that the lawfulness of an arrest by state officers for violation of federal law is to be determined by state law insofar as it is not violative of the Federal Constitution.

In Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court in speaking of the law to be applied stated:

"This Court, in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution.
Miller v. United States, supra 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed. 2d 1332; United States v. Di Re, 332 U.S. 581 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 15, n.5, 68 S.Ct. 367, 92 L.Ed. 436 (1948)." 374 U.S. at 37, 83 S.Ct. at 1632. (Emphasis supplied.)

See also Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); compare Cooper v. California, 386 U.S. 58, 788, 17 L.Ed.2d 730 (1967).

The courts of appeals have recognized and applied this rule. See Theriault v. United States, 401 F.2d 79 at 81 (8th Cir., Sept. 6, 1968); McClard v. United States, 386 F.2d 495 (8th Cir. 1967); Dorsey v. United States, 125 U.S.App. D.C. 355, 372 F.2d 928 (1967); Myricks v. United States, 370 F.2d 901 (5th Cir. 1967); Lovelace v. United States, 357 F.2d 306 (5th Cir. 1966).

Turning to local law we find that ...

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