U.S. v. Erwin
| Decision Date | 10 February 1975 |
| Docket Number | No. 74-2672,74-2672 |
| Citation | 507 F.2d 937 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James W. ERWIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles D. Butts, Fred A. Semaan, San Antonio, Tex., for defendant-appellant.
William S. Sessions, U.S. Atty., w. Ray 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 BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
James Erwin was convicted for possessing an unregistered sawed-off shotgun. He challenges the conviction on two grounds: first, that the shotgun evidence should have been suppressed because both arrest and search were invalid, and second, that the evidence of possession was insufficient to sustain his conviction. We hold that the motion to suppress should have been granted because the search was invalid, and therefore find it unnecessary to consider the sufficiency of the evidence.
While investigating the 'pornography industry,' state and county officers made a legal search of a local theater and obtained information that Erwin was an officer in a corporation which distributed allegedly obscene movies. Based upon this information, they secured a warrant for Erwin's arrest. On September 19, 1973, police, including San Antonio police officer Brown and district attorney's investigator Collins, executed the warrant. They arrested another member of the alleged conspiracy to distribute obscene materials outside the apartment where both he and Erwin were staying. When police entered the apartment, Erwin and a Ms. Roquemore were seated on a couch in the living room watching television. Erwin was placed under arrest, and Collins made a cursory search of the rest of the apartment to see if anyone else was there. He found no one, and testified that Erwin and Ms. Roquemore posed no threat. They were not handcuffed or otherwise restrained, but if they wandered about, they were always accompanied by Officer Brown. When Erwin went to the back bedroom which he had been occupying to get a shirt and shoes, Officer Brown accompanied him and confiscated a pistol from the bedside table. They returned to the living room and Brown told Collins about the pistol. Investigator Collins then went back to the bedroom, where he discovered the shotgun on a shelf in the open closet. It was the second search, the one which produced the contraband item, which we now hold was illegal.
If either the arrest or the search were unlawful, the motion to suppress should have been granted. Here we assume without deciding that the arrest was lawful, in spite of a concededly defective warrant, because the officers had probable cause to believe that Erwin was involved in the conspiracy. Chimel v. California, 1968, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Morris, 5 Cir. 1973, 477 F.2d 657, 663. However, even assuming that the arrest was lawful, we find no justification for the weapon-producing search. The government attempts to justify it both as a search 'incident to arrest' and as the seizure of an object in 'plain view.' Neither of these theories, however, is applicable to the search in question.
In considering whether a warrantless search is properly 'incident to arrest,' the inquiry focuses on the scope of the search. Vale v. Louisiana, 1970, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409. Such searches are allowed only to prevent the arrestee's seizing a weapon or destroying evidence. The basic philosophy of Chimel controls: a search incident to arrest is limited to the person of the arrestee and to the area under his immediate control, from which he might be able to reach a weapon or evidence. It has never justified a general or exploratory search. In fact, aside from the cursory search for other persons, there is no justification for 'routinely searching any room other than that in which an arrest occurs.' Chimel v....
To continue reading
Request your trial
-
U.S. v. Carter
...us are of even less magnitude than those asserted in Gamble. Thus, we also repudiate the proposed exception. See also United States v. Erwin, 507 F.2d 937 (5th Cir. 1975); Enzensperger v. Solomon, Nos. 73-2407, 73-2383 (July 29, 1974, 9th Cir.) (unpublished), cert. denied, --- U.S. ---, 95 ......
-
Brooks v. United States
...sustain the continued warrantless displacement of appellant's Fourth Amendment rights. See Coolidge v. New Hampshire, supra; United States v. Erwin, supra; United States v. Artieri, It is fundamental that, particularly where the situs of the law enforcement activity is an individual's home,......
-
U.S. v. Gwinn
...from place to place and use his [or her] presence in each location to justify a `search incident to the arrest.'"); United States v. Erwin, 507 F.2d 937, 939 (5th Cir.1975) ("[Police officers] cannot allow the arrestee freedom of movement, and then later use that freedom to justify an explo......
-
State v. Willis
...to conduct a search incident to a lawful arrest." United States v. Davis, 423 F.2d 974, 979 (5 Cir. 1970); See also, United States v. Erwin, 507 F.2d 937 (5 Cir. 1975). Nor has the state demonstrated any reasonable fear that this male or female "young voice," belonging to an unknown, unsusp......