U.S. v. Cole, 79-5529

• Citation: 628 F.2d 897
• Decision Date: 23 October 1980
• Docket Number: No. 79-5529,79-5529
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Mikel COLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 897

628 F.2d 897

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Mikel COLE, Defendant-Appellant.

No. 79-5529.

United States Court of Appeals Fifth Circuit.

Oct. 23, 1980.

Lucien B. Campbell, Federal Public Defender, P. Joseph Brake, Asst. Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, SIMPSON and THOMAS A. CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant Cole was convicted on five counts of unlawful possession of firearms. He challenges the failure of the district court to suppress evidence seized during searches of his person and his truck. We affirm as to counts one through four and reverse as to count five.

The facts

San Antonio police officers lawfully obtained a valid search warrant ¹ to search, for amphetamines,

the premises described as a one story duplex family dwelling being the rear apartment, known and numbered as 303 Savannah, rear apartment and a white Chevrolet with a blue top and Mag wheels and bearing Texas 79 plates EGB-81.

As police approached the premises they observed appellant's black pick-up truck pull into a carport attached to the rear apartment. Appellant got out of his truck and immediately an officer frisked him for weapons. This frisk uncovered a small pistol on appellant's belt which was seized and subsequently formed the basis of count five of the indictment.

The frisk took place beside appellant's truck, the door of which was still open. Through the open door the frisking officer noticed, lying on the front seat, a box containing white powder, some syringes and another gun in a holster. These items were also seized ² and appellant was brought inside the apartment, where several officers were executing the search warrant. Amphetamines were found inside the apartment, and appellant and the occupants of the apartment were arrested.

The officers brought appellant back outside and proceeded to search his truck. In the course of this search they found numerous weapons, including a pen gun inside the sweatband of a hat (the basis of counts three and four), and a silencer in an attache case (the basis of counts one and two).

I. The frisk

The officer's pat-down of appellant cannot be justified by appellant's mere presence on the premises during the execution of the warrant. "(A) person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238, 245 (1979). Mere presence neither obviates nor satisfies the requirement of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that specific articulable facts support an inference that the suspect might be armed and dangerous. Ybarra, supra, 444 U.S. at 92, 100 S.Ct. at 343, 62 L.Ed.2d at 246-47. See also U. S. v. Tharpe, 536 F.2d 1098, 1100 (5th Cir. 1976) (en banc).

Nor does the fact that the officers testified that they had previously received information of an undisclosed nature about appellant constitute reason to search under Terry. Without knowledge of the content of that information the court cannot assess the reasonableness of the inference of dangerousness. The exceptions to the requirement of a warrant are narrow and jealously guarded, and " 'the burden is on those seeking the exemption to show the need for it.' " Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235, 242 (1979), quoting U. S. v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951). This burden was not met by testimony that the officers involved had prior information about appellant, absent proof that the information was of a sort from which an inference of dangerousness could reasonably be drawn.

Since the frisk violated appellant's Fourth Amendment rights, the district court erred in refusing to suppress the pistol found on appellant's belt. Appellant's conviction on count five cannot stand.

II. The truck

In U. S. v. Napoli, 530 F.2d 1198 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976), this court held that a warrant to search "premises known as" a particular address and described as a residential dwelling conferred authority to search a camper parked in the driveway. Here the warrant referred to "premises described as" a family dwelling, "being the rear apartment" of a particular address. There is no significant difference in the terms of the two warrants. Under Napoli, therefore, appellant's truck, parked in a carport attached to the rear apartment, was within the scope of the warrant. ³ The officers were thus authorized to search the truck, limited only by the nature of what they were searching for. See Walter v. U. S., --- U.S. ----, ----, 100 S.Ct. 2395, 2400, 65 L.Ed.2d 410 (1980); Harris v. U. S., 331 U.S. 145, 152, 67 S.Ct. 1098, 1102, 91 L.Ed. 1399, 1407 (1947). Both the hat (in which the gun was found) and the attache case (in which the silencer was found) might have contained drugs. The officers thus did not exceed the scope of the warrant in searching those items. The convictions on counts one through four, based on the pen gun and the silencer, must be affirmed.

AFFIRMED IN PART and REVERSED IN PART.

THOMAS A. CLARK, Circuit Judge, dissenting:

I respectfully dissent from that portion of the opinion affirming the convictions based on Cole's possession of the silencer and pen gun. His attache-gun case and hat containing the silencer and pen gun were found in the truck on the premises to be searched. They were not within the scope of the search warrant in my opinion.

It is my opinion that Napoli ¹ does not control here. There the search warrant was directed to the house and premises. We extended the meaning of "premises" to include a camper which was parked on the premises when the police arrived. Napoli was seen locking the camper door when the officers arrived. A search of the house did not uncover the LSD described in the warrant. A search of a secret compartment in the camper did. Here the warrant and facts are different. A limited part of the premises is described (the rear apartment), a specifically described vehicle, and two named individuals. The majority extends Napoli and this more narrowly drawn warrant to support a search of a vehicle that is seen by the officers arriving on the premises as they approach, driven by a person not listed as the occupant of the premises in the warrant.

I agree with the majority that under Ybarra ² the police could not search Cole because "a warrant to search a place cannot normally be construed to authorize a search of each individual in that place." ³ And just as the person of the business visitor in Ybarra was not within the scope of a warrant authorizing the search of the "premises" of the tavern in that case, the person of Cole, who was not described in either the warrant or supporting affidavit (and whom the officers simply did not expect to find there) and whose truck was not the vehicle described in the warrant, is simply outside the scope of this warrant.

If the foregoing analysis is correct, I cannot understand why those Fourth Amendment considerations which are relevant to Cole's person are any less relevant to his truck, or more particularly to those personal effects of his that were in the truck. This warrant no more authorized a search of Cole's truck than it did of Cole. Cole's truck was just as much a "visitor" on the scene as was Cole. If Cole was not personally within the scope of the warrant then I do not see how his effects were any more subject to search under that warrant when they...