U.S. v. Castellana, 73-2259

• Decision Date: 06 September 1974
• Docket Number: No. 73-2259,73-2259
• Citation: 500 F.2d 325
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Salvatore CASTELLANA, a/k/a Sam Castellana, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 325

500 F.2d 325

UNITED STATES of America, Plaintiff-Appellant, v. Salvatore CASTELLANA, a/k/a Sam Castellana, Defendant-Appellee.

No. 73-2259.

United States Court of Appeals, Fifth Circuit.

Sept. 6, 1974.

John L. Briggs, U.S. Atty., Harvey E. Schlesinger, Asst. U.S. Atty., Jacksonville, Fla., Claude H. Tison, Asst. U.S. Atty., Tampa, Fla., Mervyn Hamburg, Dept. of Justice, Crim. Div., Washington, D.C., for plaintiff-appellant.

Henry Gonzalez, Thomas J. Hanlon, Tampa, Fla., for defendant-appellee.

Before BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges, and INGRAHAM, ^* Senior Circuit Judge.

GEE, Circuit Judge:

The United States appeals from suppression ¹ of two answers and four pistols as evidence in Castellana's trial for possessing, as a convicted felon, firearms transported in interstate commerce. 18 U.S.C. Capp. 1202(a). In main, we reverse.

On August 4, 1972, Castellana was running a drive-in grocery in Tampa, Florida, on premises comprising a main business room about twenty by forty feet in area with an eight by ten office in the rear and another back room. Suspecting gambling there, F.B.I. agents obtained valid search warrants for the store and for Castellana's person. About six p.m. the next day twenty agents in mufti went to the store, where they saw Castellana peering at them from just inside the front door, which he then locked. The lead agent identified them as F.B.I., announced he had a search warrant, and called on Castellana to open up. Instead Castellana backed away and the agents broke in, while Castellana stood a few feet inside and others were seen screaming and running about. Agent Smith, assigned to search Castellana's person, asked him to go with him to the back room but did not arrest him. He consented to and did so. Smith testified he wished to adjourn to the back office because of the pandemonium in the front room and his belief that an amount of money would be found there which he wished Castellana to count and verify. Agent Arwine followed.

As Castellana halted about four feet from his desk and Smith prepared to read the warrant, Arwine suddenly asked Castellana whether he had any weapons within reach. Castellana replied that he did, pointing to a drawer in the desk. Arwine took four handguns from the drawer, one of which occasioned Castellana's present indictment, and asked Castellana where he got them. Castellana answered that he took them in on a loan. Smith then read the warrant and advised Castellana of his Miranda rights, which he refused to waive. The four handguns were unloaded and placed on the desk and the search of defendant and the store carried out. ² At no time was anyone arrested.

Assuming Castellana was 'in custody' under inherently coercive conditions when Arwine asked his questions, Miranda was not infringed, for Arwine was not interrogating Castellana in an attempt to elicit evidence of a crime. ³ The safety of the operation was Arwine's primary concern, he testified, and the very form of his first inquiry-- weapons within reach-- shows it was limited to this proper concern. No rational investigatory purpose could have prompted such a question about premises which the agents were already authorized to, intended to, and did search. Nor is there any indication of devious intent by the agents to achieve an investigatory end by means masquerading as security measures; such activities might be made short work of.

Presented instead is a bona fide and minimally offensive security measure in the line of Terry v. Ohio ¹ but less intrusive or demeaning than the 'stop-and-frisk' procedure on less than probable cause there sanctioned, a mild and distant cousin to the searches incident to lawful arrest approved in Gustafson and Robinson. ⁵ We find ourselves unable to condemn, after the fact and on grounds of some delicacy, such mild prophylactic measures reasonably calculated to ensure the safety of the officers, the suspect, and others on the scene as well. To be sure, the court below concluded that the agents did not feel physically threatened by Castellana, ⁶ but in our view the mild measures adopted were justified by a reasonable prudence under the circumstances and did not require an actual fear of imminent harm to validate them.

Our holding, like the familiar 'plain-view doctrine,' follows from the obvious principle that evidence discovered by the police in the course of doing what they have a right to do is not subject to suppression. ⁷ Arwine's inquiry about the gun's source falls outside this rationale, however, and that inquiry, as well as Castellana's answer to it, were properly suppressed.

Affirmed in part, reversed in part.

THORNBERRY, Circuit Judge, with whom WISDOM, GOLDBERG, GODBOLD and MORGAN, Circuit Judges, join (dissenting):

I dissent. The majority opinion engages in fact-finding at the appellate level and draws an inappropriate analogy with Terry v. Ohio ¹ to provide policy support for its views.

Themajority reasons that Miranda ² is inapplicable because Agent Arwine did not interrogate Castellana when he inquired whether any weapons were nearby. The question did not constitute interrogation, we are told, because Arwine did not ask it 'in an attempt to elicit evidence of a crime.' Assuming that the majority has hit upon a satisfactory definition of interrogation, I cannot agree with its reasoning; it presumes to find as a fact that Arwine asked about the guns for safety reasons. In the first place it is not the function of this court to find facts. Second, the 'safety purposes' theory conflicts with the lower court's finding that the agents did not feel physically threatened or endangered by Castellana. To say that a question is asked for safety purposes assumes that there is a perceived danger present. To justify intrusions on...