U.S. v. Bertucci

• Decision Date: 02 April 1976
• Docket Number: Nos. 75-1795,s. 75-1795
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. BERTUCCI, a/k/a Frank James Bertucci, et al., Defendants-Appellants. to 75-1797.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1144

532 F.2d 1144

UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. BERTUCCI, a/k/a Frank James Bertucci, et al.,

Defendants-Appellants.

Nos. 75-1795 to 75-1797.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 21, 1976.

Decided April 2, 1976.

Charles A. Bellows, William J. Harte, Chicago, Ill., for defendants-appellants.

Henry A. Schwarz, U. S. Atty., Robert Simpkins, Asst. U. S. Atty., E. St. Louis, Ill., for plaintiff-appellee.

Before SWYGERT and BAUER, Circuit Judges, and HOFFMAN, Senior District Judge. ^*

JULIUS J. HOFFMAN, Senior District Judge, Sitting by Designation.

These appeals by the defendants Joseph J. Bertucci, a/k/a Frank James Bertucci, Joseph A. Argento and Phillip F. Abbott, from their convictions for possession of stolen goods in violation of 18 U.S.C. § 659 present the question of whether a warrantless search of a motor vehicle was reasonable under the Fourth Amendment. The district court denied the joint motion of the defendants to suppress evidence thus obtained and entered judgments of conviction upon jury verdicts of guilty. We affirm the judgments of the trial court.

At 1:30 a. m, on November 17, 1974, Illinois State Troopers Clyde Paris and Donald Pabst observed a north-bound Chevrolet van weaving back and forth across the center line of Illinois State Route # 1, eight miles south of Mt. Carmel, Illinois. By means of a flashing red light, the officers directed defendant Bertucci, who was driving the van, to pull over into a gravel lot adjacent to the highway. Bertucci pulled over as directed and the officers parked behind the van. Bertucci then emerged from the van and met the officers between it and the patrol car. Upon request, Bertucci displayed a valid Illinois driver's license and when questioned about the weaving, replied that he was tired. Pabst and Paris detected no odor of alcohol.

They proceeded with Bertucci to the front of the van for the purpose of conducting a customary inspection for alcohol or weapons. At the open door on the driver's side, Bertucci stepped quickly in front of Pabst as if to restrain him from looking into the van. Proceeding to shine their flashlights through the front windows, the officers observed defendant Abbott in the passenger seat and also some shipping cartons in the rear of the van, with defendant Argento lying "spread eagle" over the tops of some of the cartons. Bertucci volunteered that the three men were moving his aunt from Evansville, Indiana, to Chicago, Illinois, and produced his copy of an agreement for the rental of the van. In their inspection, the officers discovered no alcohol or weapons.

Accompanied by all of the defendants, the officers moved to the rear exterior of the van. By flashlight through the window, they observed that the shipping cartons were sealed and that invoice envelopes were attached to them. Bertucci then stated that his aunt had bought the goods in Evansville and that he, Abbott and Argento were moving them to Chicago for her. The officers requested Bertucci's permission to examine the cartons more closely. In response, he opened the rear door of the van. The officers then removed an invoice bearing the address of a hardware store in Beaver Dam, Kentucky, from an envelope attached to one of the cartons. Bertucci said that if permitted to make a phone call, he could verify his story of why the three men were transporting the cartons.

The officers then directed the defendants to the Mt. Carmel, Illinois, police station, where they were advised of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the station, the officers opened the shipping cartons and discovered the contents to be trousers and stereo components. By telephone conversation with the shopkeeper at the address in Beaver Dam, Kentucky, Pabst and Paris learned that goods ordered several weeks previously had not arrived. In a third version of why the defendants were in possession of the cartons, Bertucci stated that he had purchased them from an Eddie Andrews at 201 First Street in Evansville, Indiana. The Evansville police found no listing for Andrews or the address. While defendants were permitted an unlimited number of telephone calls from the police station, none produced information substantiating any of Bertucci's explanations.

The Fourth Amendment prohibits unreasonable searches and seizures. "Except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930, 935 (1967). The parties do not here question the reasonable police conduct of stopping a weaving van at 1:30 a. m., and inspecting the front thereof for intoxicants and weapons. United States v. Hood, 493 F.2d 677, 680 (9th Cir. 1974), cert. denied 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). What they vigorously dispute is the authority of the officers under the Fourth Amendment to inspect the rear portion of the van.

We conclude that the officers had probable cause to search the entire van for alcohol or weapons. Thus, any Fourth Amendment distinction between the front and rear portions is untenable. If the officers may lawfully search the front for alcohol or weapons, it would be unreasonable to expect them not to search the rear. Both the front and rear are logical places for concealment of alcohol or weapons. In view of the weaving and the furtive attempt of Bertucci to restrain Pabst from looking into the van, the officers could justifiably expect to find alcohol or weapons, even though Bertucci had said that he was merely tired and the officers had detected no odor of alcohol. None of the defendants has suggested that a warrant is required to inspect the back seat of an automobile, which has been stopped for weaving, for weapons or alcohol. Open to view by flashlight from three windows, the rear portion of the van is like the back seat of an automobile. It is unlike the trunk, which because of its complete enclosure, might generate a greater expectation of privacy then the back seat, and even a trunk is accessible to warrantless search under appropriate circumstances. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Furthermore, the fact of nightfall makes no difference in the case before us. Darkness does not usher in a set of Fourth Amendment rules different from those applicable in daylight.

The limited intrusions of Pabst and Paris are acceptable for other reasons. It is familiar doctrine that objects in plain view of officers rightfully in position to have that view are subject to seizure without warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1967). The stop by the officers of the weaving van rightfully brought them into position to observe the cartons by flashlight through the front or rear windows. The shipping cartons plainly visible in the rear might have contained either weapons or intoxicants. It is no answer that they contained evidence of a crime instead, for the Supreme Court has recognized that " . . . often noncriminal contact with automobiles will bring local officials in 'plain view' of evidence, fruits or instrumentalities of a crime, or contraband." Cady v. Dombrowski, supra, 413 U.S. at 442, 93 S.Ct. at 2528, 37 L.Ed.2d at 715.

When at the rear of the van, Bertucci modified his original explanation of the presence of the cartons, it would have been reasonable for the officers to conduct a more extensive search than the inspection actually undertaken. Bertucci realized that the sealed shipping cartons with invoice envelopes attached appeared new to the officers, and hence he explained that his aunt had bought the goods in Evansville. The evasiveness of a defendant was among the factors establishing reasonable grounds for an automobile search in United States v. White, 488 F.2d 563 (6th Cir. 1973), and courts have long recognized the utility of a motor vehicle for transporting evidence beyond official grasp, adjusting standards for warrantless automobile searches accordingly. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Zemke, 457 F.2d 110 (7th Cir. 1972).

Even if we assume that the modified story and the mobility of the van do not together establish the reasonableness of the limited intrusions that occurred, the trial court might properly have found that Bertucci consented to the inspection of the cartons in the rear. Whether consent to a search is voluntary is to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Watson v. United States, --- U.S. ----, 96 S.Ct. 820, 46 L.Ed.2d 598, 44 LW 4112 (1976). Although Bertucci testified that he never gave permission to search the van, he nevertheless opened the rear door in response to the officer's request to examine the cartons more closely. The record discloses no overt act, threat of force, promise or other form of coercion suggesting that the opening of the door on a public highway prior to any arrest was other than voluntary. Watson v. United States, --- U.S. at ----, 96 S.Ct. at 828-29, 46 L.Ed.2d at ----, 44 LW at 4116. Justifiably, the officers inspected the cartons and removed an invoice from an envelope attached to one of the cartons.

We recently said that "the ultimate test of the legality of the search and seizure is the reasonableness of the police officer's conduct." United States v. Balanow, 528 F.2d 923 at 924 (7th Cir. 1976). The record before us discloses limited intrusions acceptable on grounds of inspection for weapons and intoxicants as well under the "plain view," "consent," and "automobile" exceptions to the warrant rule. These limited intrusions in...