U.S. v. Dall

• Decision Date: 13 November 1979
• Docket Number: No. 79-1198,79-1198
• Citation: 608 F.2d 910
• Parties: UNITED STATES of America, Appellee, v. Robert DALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 910

608 F.2d 910

UNITED STATES of America, Appellee, v. Robert DALL, Defendant-Appellant.

No. 79-1198.

United States Court of Appeals First Circuit.

Argued Sept. 11, 1979.

Decided Nov. 13, 1979.

Francis M. Jackson, III, South Portland, Me., by appointment of the Court, with whom Nisbet, MacNichol & Ludwig, South Portland, Me., was on brief, for defendant-appellant.

Margaret D. McGaughey, Asst. U. S. Atty., Portland, Me., with whom George J. Mitchell, U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, DOOLING, ^* Senior District Judge.

DOOLING, Senior District Judge.

Appellant was convicted in the United States District Court for the District of Maine on a one count indictment charging him with participation in the interstate transportation of stolen goods in violation of 18 U.S.C. §§ 2314 and 2. Appellant moved before trial, on the record earlier made in a related case, to suppress the use in evidence against him of certain allegedly stolen antique furniture that had been seized in Rhode Island, by the Rhode Island State Police from a pickup truck registered in appellant's name. Judge Gignoux denied the motion to suppress, and the correctness of that ruling is the sole question presented on this appeal.

The facts are not in substantial dispute. On December 24, 1976, at about 10:30 a. m., Trooper Richard Hurst saw a blue Chevrolet pickup truck, fitted with a white "camper cap", heading north on the Post Road in North Kingston, Rhode Island, at a rate exceeding the speed limit; Hurst pursued and stopped the truck. There were three men in the cab. None of them had an operator's license with him, and only one of them had any identification with him a card in a name other than his own. The driver, later identified as Richard B. Hudson, produced a Maine registration for the vehicle in the name of Robert Dall, the appellant. Appellant was not in the vehicle. The men in the vehicle with Hudson were Gary King and Michael Holmes, the man who produced "some sort of welfare card" in the name of Helms, saying, at first, that it was his name. Hudson told Hurst that he had a valid Maine operator's license but did not have it with him. Hurst tried unsuccessfully to have a computer check made on the vehicle and the three men through his cruiser radio; then, since none of the three had an operator's license, he requested them to go to the nearby police barracks to confirm their identities and the ownership of the truck, and they agreed to do so. At the barracks, the three men's names, dates of birth and addresses were taken down, and the trooper on the desk, recognizing the name Hudson, produced a police "flyer" indicating that Hudson was from Maine and had been involved in breakings and enterings, and stolen goods, and so forth, in Rhode Island and in the New England area. Preliminary investigation showed that none of the three men was wanted by the police in Rhode Island or elsewhere. They were detained, however, pending investigation, on the ground of their inability to identify themselves, and of their possession of an out-of-state motor vehicle without having a license to operate it.

At Hurst's request Detective Corporal Thomas Moffatt came to the barracks and interviewed the three men. Hudson told Moffatt that he had borrowed the truck from appellant in Maine on the preceding day to drive down to East Greenwich, Rhode Island, to see a friend, whom he named, and that he and his two companions had spent the night there. Hurst recognized the "friend's" name as that of someone said to be involved in breakings and enterings. Hudson said that his East Greenwich friend had not been at home, and that he and his companions were heading back to Maine when stopped.

Moffatt advised Hudson that their efforts to reach Dall by telephone had so far been unsuccessful. He also told Hudson that he had a bulletin, which he read to him, put out by the Lewiston police department, about his being a suspect in receiving stolen goods, such as antiques and rugs.

Hurst had meanwhile ascertained that the camper cap on the pickup truck was locked; when he looked into it as best he could by moving a louvered side window a little with his finger, he had seen that there was old furniture or antique furniture in the cap. Moffatt and Hurst asked Hudson if he would mind if they looked into the truck, and Hudson answered that he didn't have a key to get into the cap. Moffatt asked Hudson if he would sign a consent-to-search form for the truck, and Hudson said he definitely would not sign anything, that the stuff did not belong to him, that he didn't know what was in the cap, and that he hadn't looked in "there" or touched the back of the truck at all. Hudson, and, inferentially, the others, were advised that the truck would not be released to them, since none had a license with him, but that it would be impounded. The three were told that they would be released when their identities were confirmed, and that no charges would be brought if the owner confirmed that he had given them permission to have the truck.

Another attempt was made to reach appellant, again without success, and Hudson was then asked specifically if he had a key to the back of the camper. He said that he had only the ignition key, and that neither he nor the other two men had any keys to the cap. Hudson was then told that the police were impounding the truck, that it had to be inventoried, and that unless the police had a key they were going to have to pry up the fiber glass door at the back of the truck to lift out and inventory the contents. Before Hurst went forward with the formal impounding of the truck and inventorying its contents, Moffatt informed his superior, Detective Lieutenant Francis J. Martin, that the truck was going to be held until the owner came from Maine for it, and Martin told Moffatt to make sure that it was the owner in fact who did come to Rhode Island to pick up the truck.

Moffatt testified that he concluded that there were no criminal violations for the detectives to follow up on but only a motor vehicle violation, that he had not looked into the cap to see what it held, and that he turned the matter back to Hurst, telling him to seize the vehicle and hold it until the owner contacted him. Moffatt then had Hurst open the back of the truck, remove the contents and place them in a safekeeping stall in the barracks garage. The contents were inventoried; the truck remained in the barracks parking lot.

The District Judge found, in accordance with the testimony of Moffatt, Martin and Hurst, that it was the regular practice of the Rhode Island State Police to impound a vehicle in a variety of circumstances, including instances in which an out-of-state driver is stopped, cannot produce an operator's license or identification and is driving a vehicle that belongs to someone else. The District Judge found that when a vehicle was impounded the regular practice was to secure it, to lock the vehicle, and to inventory the contents of the vehicle in order to protect the Department against allegations that property had been lost, damaged or stolen and also to make sure that there was no explosive or otherwise dangerous material in the vehicle. The evidence was, and the District Court found, that the parking lots at the barracks were not enclosed or fenced. There was testimony that the garage space inside the barracks building is not used for impounded vehicles but for police vehicles. Martin indicated that the contents of a vehicle that was being impounded were in State Police practice inventoried if the vehicle contained an unusual amount of goods or was to be kept in an area to which others had access.

About three or four o'clock in the afternoon, after the vehicle had been opened and its contents inventoried and stored, Hurst did reach appellant on the telephone. Appellant told Hurst that the truck was his and that he had lent it to Richard Hudson. Hurst explained that the truck had been stopped, that Hudson and the two men with him had no licenses or valid identifications, and that appellant would have to come to Rhode Island to claim the truck and show his ownership of any contents that might be in it. Appellant then said that the truck was empty when he had "just" lent it to "them" to use. Appellant said that he would come to pick up the truck, and later he did.

No charge was made against any of the three men by the Rhode Island police, and they were released at about 7 or 7:30 P.M., but a summons was issued to Hudson for driving without having an operator's license in his possession.

Judge Gignoux, after finding the facts in detail, concluded that the undisputed evidence established that appellant's pickup truck was legally impounded in accordance with standard procedures of the Rhode Island State Police, and that the search of the impounded vehicle was carried out in accordance with standard procedures of the Rhode Island State Police. He found accordingly, on the authority of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and the cases following it, that the warrantless search of the pickup truck did not violate the Fourth Amendment. Having decided that the search was permissible under Opperman as a routine inventory search conducted in accordance with established police procedures, Judge Gignoux did not address the question of appellant's "standing", but he observed that United States v. Nunn, 525 F.2d 958, 959, Rehearing denied, 527 F.2d 1390 (5th Cir. 1976), relied on by the United States Attorney as showing that appellant's personal rights were not violated by the search of the pickup truck, might well be considered inconsistent with the "standing" principles enunciated in Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

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