U.S. v. Collins

• Decision Date: 10 February 1977
• Docket Number: No. 76-1231,76-1231
• Parties: UNITED STATES of America, Appellee, v. John H. COLLINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 557

549 F.2d 557

UNITED STATES of America, Appellee, v. John H. COLLINS, Appellant.

No. 76-1231.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1976.

Decided Feb. 10, 1977.

Kermit E. Bye, Fargo, N. D., for appellant.

Harold O. Bullis, U. S. Atty., Fargo, N. D., for appellee.

Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.

MATTHES, Senior Circuit Judge.

This is another appeal where the guilt of the accused (defendant) was established by the overwhelming weight of the evidence. Defendant was found guilty by a jury on eleven counts of transporting stolen motor vehicles in interstate commerce in violation of 18 U.S.C. § 2312 ¹ and eleven counts of selling or disposing of the vehicles in violation of 18 U.S.C. § 2313. ² He was sentenced to serve a total of ten years. Post-trial motions for a new trial and for release on bail pending appeal were denied.

The primary issue presented here concerns the legality of a warrantless search of defendant's automobile made at a police garage after the automobile had been removed from a public parking lot. The district court filed a memorandum opinion and order denying appellant's motion to suppress the introduction into evidence of certain articles obtained in the search. See United States v. Collins, 407 F.Supp. 1096 (D.N.D.1976). We conclude that the warrantless search did not violate the fourth amendment and that such articles were properly admitted into evidence.

I

The sequence of events that occurred in connection with the contested search is particularly important to a resolution of the issues raised in this appeal.

In the fall of 1975 two farmers in Wells County, North Dakota, Harlan Rogelstad and Byron Nelson, notified the FBI that certain vehicles in their possession might be stolen. On November 4, 1975, FBI agents Aldridge, Hufford and Waldie examined seven vehicles located at the Nelson farm for their Public Vehicle Identification Numbers (PVIN's) and True Vehicle Identification Numbers (TVIN's). A check with the National Crime Information Center indicated that all seven vehicles had been reported stolen.

Nelson advised the agents that the vehicles had been obtained through defendant and that he had last seen defendant about one month previous when defendant, driving a 1975 white Buick Limited automobile, arrived in the area with a Champion Motor Home driven by an unidentified couple. The agents learned that while certain of the vehicles found at the Nelson farm had been delivered personally by defendant, some had been delivered by other individuals, either in Wells County, or at Bismarck. Nelson informed Agent Aldridge that defendant had called from the Omaha jail the last of October or first of November and requested that his car be picked up from the Bismarck airport. Agents Aldridge, Hufford and Waldie became aware, through contact with their Omaha office, that defendant was in custody in Omaha and that at the time of arrest on October 20 he had in his possession five altered motor vehicle titles which corresponded with altered PVIN's on five of the vehicles at the Nelson farm. Agent Aldridge then telephoned Special Agent Willis at Bismarck to have him check at the Bismarck airport for defendant's automobile. Agent Willis located the Buick at the airport and had it impounded by Bismarck police on the basis of a violation of city parking regulations.

On the next day, November 5, an eighth stolen vehicle was located at the Halvorsen farm. The three agents then drove to Bismarck to examine the impounded Buick at the police garage. Agent Hufford testified at the suppression hearing that their sole purpose was to identify the true owner of the vehicle. An expired temporary license plate with defendant's name and a Denver address was affixed to the rear. The car was opened with a coat hanger. A tool box in the back seat was opened and found to contain a small socket set. A check on the PVIN, which was affixed to the rear part of the driver's side door, revealed no record of the car being stolen. While Agent Hufford looked for the TVIN, ³ and Agent Waldie searched the glove compartment, someone mentioned that it might be a rental vehicle and that rental agencies frequently place an identifying decal on the inside lid of the trunk. Agent Aldridge then opened the trunk by depressing a button in the glove compartment and found no decal, but did notice in plain view a device known as a "slammer", which is frequently used to replace and pull locks from automobiles. About at that moment, Agent Hufford located the TVIN. A check with the National Crime Information Center indicated that the car had not been reported stolen. The agents concluded that they had discovered defendant's "work car" and decided not to proceed further without a warrant. A search warrant was obtained on the morning of November 6. ⁴ A full search of the trunk yielded incriminating evidence consisting primarily of various tools used in the theft or changing the identity of automobiles, including the "slammer" first viewed during the initial search; lock and ignition parts; Illinois, Alabama and Indiana license plates; Ohio title applications; personal property belonging to the true owner of the Lincoln found at the Nelson farm; a can of spray paint; ⁵ and a bill of sale for a Ford tractor, Model 900, in the name of one Roy E. Goodman. In the glove compartment there was a bill of sale for the Buick in defendant's name and, under the driver's seat, a partial set of socket wrenches. These articles were introduced into evidence.

II

The critical question is whether the circumstances of the warrantless seizure which occurred when defendant's car was towed to the impoundment area, see United States v. Brown, 535 F.2d 424, 427 (8th Cir. 1976), and the subsequent search fall within one of the recognized exceptions to the fourth amendment, see United States v. Heisman, 503 F.2d 1284, 1287 (8th Cir. 1974). We stated in United States v. Kelly, 529 F.2d 1365, 1371 (8th Cir. 1976) that "(w) arrantless searches or seizures are per se unreasonable unless there are special circumstances which excuse compliance with the Fourth Amendment warrant requirement. Coolidge v. New Hampshire, 403 U.S. (443) 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971)."

There is no generalized automobile exception to the fourth amendment warrant requirement. See, e. g., United States v. Valen, 479 F.2d 467, 470 (3d Cir. 1973). Exceptions to the warrant requirement have been recognized in cases involving (1) exigent circumstances, see Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Kelly, 547 F.2d 82 (8th Cir. 1977); (2) permanent police custody, see Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); and (3) inventory searches, see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). ⁶

Here, the government relies heavily on the exigent circumstances exception to the warrant requirement. The government contends, in effect, that exigent circumstances would have justified a search of the Buick when it was discovered initially at the Bismarck airport and, applying the doctrine of Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. 1975, ⁷ that the exigency and probable cause factors still obtained later at the police impoundment area when government agents first entered the vehicle.

Defendant does not seriously argue that the facts and circumstances known to government agents on November 4 were insufficient to warrant the belief that the Buick constituted evidence of a crime. On the basis of their investigation in Wells County and conversation with Byron Nelson, the agents knew that defendant had been seen driving a white Buick Limited with a temporary license tag in the area and that he had participated in transactions culminating in the delivery of numerous stolen vehicles. We think that these facts gave government agents probable cause to believe that defendant's car was stolen. We turn, then, to the question whether exigent circumstances would have justified a warrantless search at the airport parking lot.

After defendant's arrest in Omaha on October 20, 1975, the incentive for the car's removal substantially increased. There was evidence, and defendant concedes, that he had telephoned Nelson from the Omaha jail in an effort to have his car removed from the airport parking lot only a few days prior to its seizure on November 4, cf. Cardwell v. Lewis, 417 U.S. 583, 595, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion). Moreover, the prior investigation disclosed the existence of confederates,...