U.S. v. Birmley

• Citation: 529 F.2d 103
• Decision Date: 29 January 1976
• Docket Number: No. 75--1161,75--1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glen Ray BIRMLEY et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 103

529 F.2d 103

UNITED STATES of America, Plaintiff-Appellee, v. Glen Ray BIRMLEY et al., Defendants-Appellants.

No. 75--1161.

United States Court of Appeals Sixth Circuit.

Argued Sept. 29, 1975.

Decided Jan. 29, 1976.

Cecil D. Branstetter, Branstetter, Moody & Kilgore, Carrol D. Kilgore, Nashville, Tenn., for defendants-appellants.

Charles H. Anderson, U.S. Atty., Joe B. Brown, Asst. U.S. Atty., Nashville, Tenn., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and HARVEY, District Judge. ^*

HARVEY, District Judge.

This appeal is from a non-jury conviction on a two count indictment charging defendants with possession of unregistered firearms in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2.

In lieu of a formal trial proceeding, pursuant to stipulation between all the parties, this case was tried by the District Court Judge upon the submission to the Court of the record consisting of: (1) the testimony given at the preliminary hearing, (2) the testimony given at the hearing of the defendant's motion to suppress evidence and (3) the certificates of non-registration of the firearms which are the subject matter of this case.

From stipulated record the relevant facts may be summarized as follows:

On October 4, 1973 the residence of Mr. James Oakley of Kingston, Tennessee, was burglarized and a quantity of firearms was stolen from his property. Included in this quantity of stolen firearms were two short barreled weapons which were legally registered to Mr. Oakley.

On October 5, 1975 Mr. Billy Trew, a resident of Nashville, Tennessee, received a phone call at work at about 10:00 a.m. from a man known to him as 'Easy Money' who was later identified as defendant Birmley. 'Easy Money' offered for sale a quantity of stolen guns which included the firearms here in question. The caller said that he was on his way to Nashville and would bring the firearms so Mr. Trew could try to locate someone to buy them. Mr. Trew was told that the call was long distance from down in Georgia, somewhere outside of Atlanta.

Mr. Trew received two more calls at work later the same day, at 1:00 p.m. and 3:00 or 3:30 p.m. respectively. Mr. Trew was informed that 'they' were outside of Chattanooga on their way to Nashville and would be into Nashville later. No exact time of arrival was then given to Mr. Trew.

After the third call, Mr. Trew called Agent Cheshire of the Federal Bureau of Alcohol, Tobacco and Firearms. Agent Cheshire received the call at about 4:00 p.m. or shortly thereafter. The agent was advised of the earlier conversations Mr. Trew had with 'Easy Money' regarding the stolen guns. Mr. Trew was instructed to call back later with more information as it developed.

At about 8:30 p.m., Agent Cheshire received a call from Mr. Trew who advised him that 'they' were definitely coming to Nashville and planned to meet with him. At this time, Mr. Trew was advised that Agent Cheshire would try to get some other officers together in order to cover a meeting place which the agent suggested near Harding Road and Nolenville Road in Nashville. The agent further advised that he would call Mr. Trew and give him a telephone number where the agent could be reached near the meeting place.

After obtaining the assistance of other state and federal officers, Agent Cheshire went to a phone booth across the street from the K--Mart Shopping Center at Nolenville and Harding Road in Nashville and called Mr. Trew about 9:15 p.m. in order to give him the phone booth number and finalize the location of the meeting place. Agent Cheshire instructed Mr. Trew to telephone him at the phone booth when the 'people' called and said they were in town with the guns. Mr. Trew was to tell the people to meet him at a drive-up phone booth in the parking lot at the K--Mart. Mr. Trew was to find out what kind of car they were in and relay this information to Agent Cheshire, who would be waiting for them.

Agent Cheshire waited near the K--Mart until Mr. Trew called at about 10:40 p.m. and advised that the people would meet him at the K--Mart parking lot and would be driving a white over beige or brown 1963 Ford with Georgia license plates. Upon receiving this information, the federal agent with the assistance of the others, immediately went over to the K--Mart and observed the above described automobile with the three appellants in it, parked at the phone booth. Agent Cheshire and others seized the parked vehicle by placing their vehicles in the immediate front and rear of the parked vehicle.

All three appellants were arrested and searched once they exited the vehicle. Appellant Capps was in the driver's seat of the car and was found to have the automobile trunk key located separately apart from the ignition key in his watch pocket. Appellant Birmley was occupying the front passenger seat and was the owner of the automobile. Appellant Sexton was a passenger in the rear seat of the seized vehicle.

At the scene of the arrest, the trunk of the vehicle was opened and searched. The trunk contained four bundles of rifles and shotguns wrapped in bed linens and a small duffle bag containing handguns and the two short barreled weapons that are named in the above mentioned indictment.

Based upon the stipulated record, the District Court Judge found the appellants and each of them guilty of the illegal possession of unregistered firearms under both counts of the indictment.

Appellants raise a number of issues on appeal. The assignments of error are as follows: that the lower court erred in admitting into evidence the weapons seized, for such were the fruits of an illegal search and seizure; that the authorizing statute under which appellants are charged is unconstitutional; that there was insufficient competent evidence to convict the appellants of the charges alleged in the indictment; and that the trial court erred in denying appellants' demand for a bill of particulars.

First, appellants contend that the warrantless search was unreasonable for the federal agents had sufficient time prior to the search to seek a search warrant from either a federal magistrate or a state court.

The record is clear that under the circumstances, there was insufficient time to obtain a search warrant and that there was probable cause for a seizure of the vehicle and a search of the trunk.

We must give the Fourth Amendment a practical interpretation and follow common sense standards for establishing probable cause for such is mandated by United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Probable cause for the officers to arrest the appellants certainly existed after all the above facts finally came to the officers' attention. Since probable cause to search the automobile existed, such probable cause furnished the officers a sufficient basis for searching the vehicle at the scene without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Also, it is not necessary to obtain a search warrant if it appears likely at the time that the delay incident to obtaining a warrant would result in losing the opportunity to apprehend a law violator. Such is the case here. The above is true even though it later develops that sufficient time had been available in which a search warrant could have been obtained. United States v. Thomas, 319 F.2d 486 (6th Cir. 1963). Here the officers did not have the full information until late in the evening of the arrest. Given these circumstances then and now, there appears no time when the officers could have obtained a search warrant without losing the opportunity to apprehend the appellants.

The warrantless search was reasonable and therefore the fruits of said search were admissible into evidence. We find no error here.

Next, the appellants assert that the statute under which they were convicted is itself unconstitutional as not being authorized by the Necessary and Proper Clause of Article I of the Constitution and/or as an exercise of a power expressly denied Congress by the Second Amendment to the Constitution.

Congress could have prohibited the transfer of firearms altogether. Instead, it chose to permit transfer subject to well-defined regulation. Varitimos v. United States, 404 F.2d 1030, 1032, note 4 (1st Cir. 1968), cert. den., 395 U.S. 976, 89 S.Ct. 2126, 23 L.Ed.2d 765 (1969).

The taxing power of Congress provides the authority to validate the provisions of 26 U.S.C. 5861(d), Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.Ct. 554, 81 L.Ed. 772 (1937). Citing the above authority, the basic issue of validity was previously considered by the Fifth Circuit.

'Test of validity is whether on its face the tax operates as a revenue generating measure and the attendant regulations are in aid of a revenue purpose . . . (citations omitted) . . . Furthermore, that an act accomplishes another...