Taglavore v. United States

• Decision Date: 13 June 1961
• Docket Number: No. 17214.,17214.
• Citation: 291 F.2d 262
• Parties: Paul TAGLAVORE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

291 F.2d 262 (1961)

Paul TAGLAVORE, Appellant, v. UNITED STATES of America, Appellee.

No. 17214.

United States Court of Appeals Ninth Circuit.

June 13, 1961.

Taylor & Crane, Fairbanks, Alaska (Fred D. Crane, Fairbanks, Alaska, of counsel), for appellant.

Warren C. Colver, U. S. Atty., and James R. Clouse, Jr., Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before CHAMBERS, ORR, and HAMLEY, Circuit Judges.

ORR, Circuit Judge.

This appeal involves a conviction for possession of narcotics and specifically raises the question whether the evidence upon which the judgment of conviction rests was procured in violation of appellant's constitutional rights. Such questions arise in nearly all appeals we are called upon to decide in narcotics cases, involving as they do the cunning of the alleged offenders as they attempt to evade detection, and the efforts of the law enforcement officers to circumvent these attempts. It may be validly stated that in no field of law enforcement and detection is the work of the law officers more difficult; yet, difficult as detection may be, the arm of the law extends constitutional safeguards which must be respected. The factual situation presented at the trial of appellant is in substance as follows:

On May 3, 1958, James F. Calhoon was an investigator with the vice squad of the Alaska Territorial Police. Appellant at the time was employed as a cab driver with the Union Cab Company of Fairbanks, a job he sometimes took during the winter months when there was no construction work. At about 11:10 P.M. on this particular day Investigator Calhoon and several other police officers went to the offices of the Union Cab Company and arrested one of the owners of said Company on charges of violating the narcotics laws. Two boxes of cigarettes which were found by the police during the arrest were believed to be marijuana cigarettes. It appears that Inspector Calhoon, for reasons not appearing in the record, suspected that appellant was connected in some way with these narcotics violations. At any rate immediately following the arrest of the Cab Company's owner, and while still at the Cab Company's offices, Inspector Calhoon gave to Investigators Barkley and Borjesson of the Territorial Police a warrant for appellant's arrest. This arrest warrant, however, was not for a narcotics violation but for two minor traffic violations — failing to signal for a right turn and having faulty brake and signal lights. Inspector Calhoon testified at the trial that he had personally witnessed these violations the previous night, although he had not stopped appellant or issued a traffic citation at the time because he was busy doing other police work. Instead he waited until the afternoon of May 3rd and then swore out a warrant for appellant's arrest. At the time he delivered this warrant to Inspectors Barkley and Borjesson, he directed them to go out at once and find appellant, and he informed them that there was an excellent chance that appellant would have marijuana cigarettes in his possession when they found him.

Armed with this warrant and this warning Inspectors Barkley and Borjesson set out to look for appellant; approximately five minutes later they saw him in downtown Fairbanks as he was about to enter the Wonder Bar. While Borjesson returned to his police vehicle to get the arrest warrant, Barkley called out to appellant that he wanted to talk to him. As appellant came to the edge of the sidewalk, Barkley crossed the street towards him and when about three or four feet away said, "I have a warrant for your arrest." At this point appellant took his left hand out from the pocket of his trousers and placed it to his mouth. He then turned around and made a dash for the doorway of the Bar. Inspector Barkley grabbed him and pushed him up against a wall and applied pressure to his throat. Upon doing this, Barkley testified, he saw what appeared to be cigarette paper in one corner of appellant's mouth. At this juncture Inspector Borjesson rushed back with the warrant; the two officers succeeded in wrestling the struggling appellant to the sidewalk and while Borjesson sat on his stomach Barkley continued to choke him until his mouth opened and the Inspector was able to remove what proved to be the remains of a marijuana cigarette. After being subdued appellant was incarcerated. The contents thus forcibly acquired from appellant's mouth, which were analyzed and found to contain marijuana, were the basis of the charge of possession of narcotics brought against appellant and were introduced at the trial over appellant's objection.¹ The question raised is: was the possession of this evidence secured by illegal search and seizure?

Normally one's person or property may not be searched unless the authorities conducting the search have a search warrant which has been issued by a magistrate upon at least a showing of probable cause. Certain well-established exceptions exist to this basic rule. One such exception, within which the Government claims the instant case falls, is that incident to a valid arrest the person arrested may be searched without warrant. Thus where one has been legally arrested for the commission of a crime his person and, in most cases, his immediate surroundings at the time of arrest may be properly searched. The main purpose of this exception is to facilitate discovery of various elements and evidence of the crime for which the accused is being arrested, and also to remove weapons or other instrumentalities which might be used to resist the officers or for escape or similar purposes. If the search happens to uncover evidence of crimes other than the one for which the accused has been arrested, this evidence may also be used against him in prosecutions for the other crimes so discovered. Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L. Ed. 1399. Certain decisions even indicate that the arresting officers may deliberately look for evidence of other crimes in addition to that for which the arrest is being made. Charles v. United States, 9 Cir., 1960, 278 F.2d 386. However, there is one fixed and essential prerequisite to all of these searches: in each case there must be a valid, bona-fide arrest to which the search is merely incident. Where the arrest is only a sham or a front being used as an excuse for making a search, the arrest itself and the ensuing search are illegal. Worthington v. United States, 6 Cir., 1948, 166 F.2d 557; Henderson v. United States, 4 Cir., 1926, 12 F.2d 528, 51 A.L.R. 420. "An arrest may not be used as a pretext to search for evidence." United States v. Lefkowitz, 1932, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877. To put it in other words, the search must be incident to the arrest, and not vice versa.

It is quite apparent that the attempted arrest of appellant under the traffic warrant falls within this latter evil: the traffic warrant was being used as a mere excuse to search appellant for marijuana cigarettes. It is a matter of common knowledge, and it was admitted by one of the arresting officers at the trial, that it is not ordinary police procedure to physically take a person into custody for a minor traffic violation such as appellant allegedly committed, especially when no traffic ticket or citation has theretofore been given. Here the arrest warrant was acquired by an inspector in the vice squad who suspected appellant of being connected with certain illegal narcotics activities of appellant's employer. This inspector kept the warrant until immediately after the arrest of said employer, late at night, whereupon he gave it to two other police officers with instructions to go arrest appellant and a warning that appellant might well have marijuana cigarettes in his possession. All of these facts make the true purpose of securing the arrest warrant obvious. As one of the two arresting officers testified: "It was assumed that appellant had marijuana cigarettes in his possession. We were going to search him for the cigarettes, yes, if he had any." That the purpose of search was uppermost in the arresting officers' minds is also evidenced by the fact that they immediately applied force to severely choke appellant after he put something into his mouth.

The violation of a constitutional right by a subterfuge cannot be justified, and the circumstances of this case leave no other inference than that this is what was done with the traffic arrest warrant here. Were the use of misdemeanor arrest warrants as a pretext for...