Rodgers v. United States

• Decision Date: 26 July 1966
• Docket Number: No. 18202.,18202.
• Citation: 362 F.2d 358
• Parties: John Wesley RODGERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

362 F.2d 358 (1966)

John Wesley RODGERS, Appellant, v. UNITED STATES of America, Appellee.

No. 18202.

United States Court of Appeals Eighth Circuit.

June 30, 1966.

Rehearing Denied July 26, 1966.

Forriss D. Elliott, St. Louis, Mo. (court-appointed), for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.

BLACKMUN, Circuit Judge.

John Wesley Rodgers, age 33, was charged by information with having in his possession on or about June 17, 1965, in violation of 26 U.S.C. § 5851, a certain firearm, namely, a shotgun with a barrel less than 18 inches in length, made in violation of § 5821. Rodgers pleaded not guilty to this charge. He has been represented by the same appointed counsel since prior to his waiver of indictment.

With the approval of the court and the consent of the government Rodgers also signed a written waiver of his right to trial by jury, as provided by Rule 23(a), Fed.R.Crim.P. A defense motion to suppress evidence (the loaded shotgun found in an automobile, and shells and one of the gun's hammers found on the defendant's person) was denied. Rodgers was convicted by the court (Judge Meredith) and received a sentence of three years. He appeals in forma pauperis.

Both defense counsel and the defendant pro se have filed briefs. Counsel's primary argument is that (a) the validity of Rodgers' arrest must be determined by federal law; (b) the court erred in not finding that Rodgers was arrested when Missouri state troopers interrupted his automobile journey; (c) the court erred in denying the motion to suppress evidence; and (d) in any event, the search of the automobile was unreasonable.

There is little dispute about the basic facts. The court found them as follows:

"On June 16, 1965, a 1960 white Buick convertible, bearing license number XLO-698, was stolen in St. Louis, Missouri. At some time between 7:00 a. m. and 9:00 a. m., on June 17, 1965, three members of the Missouri Highway Patrol stationed at Rolla, Missouri, received a stolen car broadcast describing a number of cars. The white Buick convertible reported stolen from St. Louis was included in this broadcast. All three of these troopers testified as to what occurred. Later in the day, between 2:30 p. m. and 3:00 p. m., these officers were operating a radar check on Highway 66, west of Rolla, Missouri. Trooper Hoffman was manning the radar car. Sgt. Englehardt was about seven-tenths of a mile west of Trooper Hoffman questioning an out-of-state violator. Trooper Lawyer was about ninety-five feet west of Sgt. Englehardt. When defendant passed Trooper Hoffman, he was violating no traffic regulations, but, noting the passing car as being a 1960 white Buick convertible similar to the car previously reported stolen, Trooper Hoffman radioed Sgt. Englehardt and Trooper Lawyer that the 1960 white Buick convertible would be a good `check for an item', meaning that the car fit the description of one of the cars on their list of stolen autos. Trooper Lawyer accordingly stopped the car and asked to see the defendant's drivers' license. The defendant replied he did not have it with him; that he had left it in St. Louis. Trooper Lawyer then told the defendant he would have to wait beside the highway for a few minutes while he checked out a few things. Trooper Lawyer then returned to his car and radioed headquarters for a check on defendant's drivers' license and the license number of the car. Trooper Lawyer received information back that the car was stolen. Thereafter, the defendant was placed under arrest and handcuffed.

"Following confirmation of the car being stolen, and after the arrest, Trooper Hoffman entered the white Buick in order to drive it to Troop I Headquarters. Upon entering, he saw the butt of the sawed-off twelve-gauge shotgun protruding from a paper sack shoved partially under the front seat. He did not pull the gun out at that time, but drove on to Troop I Headquarters. At headquarters, Trooper Lawyer conducted a search of the car and seized the shotgun here sought to be suppressed. The shotgun was loaded with two shells and the left hammer was missing.

"At headquarters the defendant was searched and in his pocket were found two twelve-gauge shotgun shells and the left hammer of the gun in question. * * *

"The Court finds that the arrest of the defendant took place at the time defendant was handcuffed, which was after the trooper had received confirmation that the car being operated by the defendant was a stolen automobile. * * * The Court further finds that the defendant was in possession of the shotgun as charged in the information. * * *" We agree with the government that the appeal pivots on the issue of probable cause to arrest the defendant without a warrant. We also agree with the government and the district court that probable cause was present here.

Although Rodgers, who took the stand and conceded that he had "served time for robbery and burglary and operating a motor vehicle without the owner's consent", denied some details, the record contains abundant supportive evidence for the trial court's findings to the effect that a 1960 white Buick convertible had been reported stolen from Saint Louis; that Highway 66, on which the defendant was traveling, was a main thoroughfare southwest from Saint Louis; that the troopers had been advised of the theft of a white Buick; that one of them observed a car which fit the stolen car's description; that the defendant, who was driving it, was, accordingly, waved to the side of the road; that he was unable, on request, to produce an operator's license; that it was then ascertained by radio that the plates on the car were those of the stolen one; and that the defendant, despite his initial statement that he had left his operator's license in Saint Louis, concededly possessed no such license whatsoever.

We note that Missouri statutes make it unlawful for any person to drive a motor vehicle upon a Missouri highway unless he has a valid operator's license, V.A. M.S. § 302.020(2); that such a license "shall be carried at all times by the holder thereof while driving a motor vehicle and shall be displayed upon demand of any officer of the highway patrol * *. Failure of any * * * operator of a motor vehicle to exhibit his license to any of the aforesaid officers * * * shall be presumptive evidence that such person is not a duly licensed * * * motor vehicle operator", § 302.181, par. 2; that the word "steal" is defined as appropriation "by exercising dominion over property in a manner inconsistent with the rights of the owner", § 560.156, par. 1(2); that intentional stealing is unlawful, § 560.156, par. 2; that stealing a motor vehicle is a felony, § 560.161, par. 2(2); that driving a motor vehicle without permission of the owner is prohibited, § 560.175, par. 1, and is also a felony, § 560.180, par. 1; that any person receiving, with intent to defraud, any property stolen from another, knowing it to have been stolen, shall, upon conviction, be punished as though he had stolen the property, § 560.270; that "The primary purpose of the highway patrol is to enforce the traffic and promote safety upon the...