U.S. v. Girst

• Decision Date: 28 March 1979
• Docket Number: No. 77-1604,77-1604
• Citation: 636 F.2d 316
• Parties: UNITED STATES of America v. Calvin Linwood GIRST, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 316

636 F.2d 316

204 U.S.App.D.C. 44

UNITED STATES of America v. Calvin Linwood GIRST, Appellant.

No. 77-1604.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 10, 1978.

Decided March 28, 1979.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal 77-00161).

Michael L. Lehr, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Michael W. Farrell and Daniel A. DeRose, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Ava Beth Scheinman, ^* with whom Michael Geltner, Georgetown Univ. Law Center, Washington, D.C. (Appointed by this Court), was on the brief, for appellant.

Before BAZELON, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

From his conviction, following a bench trial, on three counts alleging firearms violations, Girst appeals contending that the trial court was in error (1) when it refused to suppress certain evidence that was seized when he was arrested, and (2) when it allegedly convicted him of three firearms offenses for the same act. We sustain the court's denial of the suppression motion and set aside the judgment of conviction on one firearms count.

I

Acting on the basis of information received from two previously reliable informants a Special Agent of the U.S. Bureau of Alcohol, Tobacco and Firearms and officers of the Metropolitan Police Department obtained and executed a search warrant authorizing a search of the premises at 2028 13th Street, Northwest, for sawed-off shotguns and ammunition. ¹ In the process of executing the search warrant the agent searched Girst and seized a loaded .32 calibre semi-automatic pistol that he was carrying.

We reject appellant's argument that the evidence of the gun should have been suppressed. It is clearly established that the search which uncovered Girst's illicit pistol was reasonable, and where police action is reasonable, it is lawful under the fourth amendment. United States v. Hall, 174 U.S.App.D.C. 13, 15, 525 F.2d 857, 859 (D.C. Cir. 1976); Hinton v. United States, 137 U.S.App.D.C. 388, 394, 424 F.2d 876, 897 (D.C. Cir. 1969). Here we find that a squad of police officers executing a valid search warrant entered a reputed "shooting gallery" for heroin addicts at 2028-13th Street, N.W., Washington, D.C. During this search, the police were informed that a man named "Reds" had left the house to seek narcotics and could be expected to return shortly. The officers guarding the front door were informed to expect "Reds" return at any time.

Shortly thereafter, while the search authorized by the warrant was still underway throughout the premises, appellant Girst came up to the front door of the building. As he was reaching to open the door, the officers posted inside told him to come in. At this point, Girst turned in an apparent attempt to flee, and the police ordered him into the building. Once inside, in patting him down the police discovered the pistol that was the cause of Girst's arrest and conviction.

The frisk of appellant, solely a patting down of the outside of the clothing, fell clearly within the limited nature of a search authorized by the Terry v. Ohio, 392 U.S. 1, 83 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "stop and frisk" doctrine. Under the circumstances that led to the issuance and execution of this search warrant the police officers involved were properly on the premises and were fully justified in being sufficiently suspicious of Girst to merit administering a limited protective pat-down for weapons. Not only was he entering a building known to be a "shooting gallery," but moreover, it was a shooting gallery known to be protected at times by armed men and one that was at the time the subject of a valid search for weapons. Whether or not the police had adequate grounds to suspect that appellant was "Reds" returning with narcotics, they had more than adequate grounds to suspect that any individual entering a "shooting gallery" where guns were frequently seen was an individual who fully justified a Terry frisk, for protective purposes if for no other. "A police officer need not defer . . . protective measures to the point of peril," Young v. United States, 140 U.S.App.D.C. 333, 337, 435 F.2d 405, 409 (D.C. Cir. 1970), nor must he "shrug his shoulders and allow a suspected criminal to walk away." United States v. Hall, supra, 174 U.S.App.D.C. at 16, 525 F.2d at 860. Protective pat-downs have been upheld in situations closely analogous to the instant case, even though the police in the other cases were searching only for narcotics, not firearms, and thus had less reason to fear that someone entering the premises might be armed. United States v. Peep, 490 F.2d 903 (8th Cir. 1974); cf. United States v. Branch, 178 U.S.App.D.C. 99, 108 n. 10, 545 F.2d 177, 186 n. 24 (D.C. Cir. 1976); Guzman v. Estelle, 493 F.2d 532, 535 n. 10 (5th Cir. 1974). Terry v. Ohio, supra, and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) leave no doubt as to the legitimacy of the search involved in this case.

II

Appellant's second contention is that his conviction and sentence on the three firearms counts cannot stand because they impose penalties for the same act. We find this complaint to be partially correct and we perceive another defect in the sentence as well.

All three counts involved Girst's possession, and transportation in interstate commerce, of a .32 calibre pistol.

The First Count of appellant's indictment alleged that

On or about February 11, 1977 . . . GIRST, having been convicted of a crime punishable by imprisonment for a term exceeding one (1) year, did knowingly ship and transport a firearm . . . a .32 calibre pistol, in interstate commerce from the State of Virginia to the District of Columbia.

This conduct was alleged to violate 18 U.S.C. § 922(g)(1) which provides

(g) It shall be unlawful for any person

(1) . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport any firearm . . . in interstate . . . commerce.

18 U.S.C. § 922(g)(1) (1977). P.L. 90-618, October 22, 1968 (82 Stat. 1220). Section 922(g)(1) is part of Title 18, Chapter 44 which is entitled "FIREARMS." A subsequent paragraph of that same chapter entitled "Penalties," provides:

(a) Whoever violates any provision of this chapter . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both . . ..

18 U.S.C. § 924(a) (1977), P.L. 90-351, June 19, 1968, 82 Stat. 924; P.L. 90-618, October 22, 1968, 82 Stat. 1220 (emphasis added). ²

The Second Count of the indictment charged that on or about the same date

. . . GIRST, having previously been convicted of a felony, did knowingly, receive, possess and transport in commerce and affecting commerce (the same .32 caliber pistol) . . . described in the First Count . . ..

The conduct was alleged to violate 18 U.S.C. § 1202(a)(1), Appendix, which provides:

(a) Any person who

(1) has been convicted by a court of the United States or of a state or any political subdivision thereof of a felony . . . and who receives, possesses or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

18 U.S.C. Appendix § 1202(a)(1); P.L. 90-351, June 19, 1968, 82 Stat. 236 (emphasis added). ³

Following his conviction by the court on all counts Girst was adjudged concurrent sentences of "five years" imprisonment on the first count and "two years" imprisonment on the second count. The Government's brief characterizes these offenses as

. . . five years for transportation of a firearm by a felon, (and) two years' imprisonment for possession of a firearm by a felon . . .

Govt. Br., p. 2. The testimony that supported the convictions on both of these counts was the seizure of the pistol from Girst as above described and a statement by Girst to the agent and police that on February 11, 1977, he had carried the pistol with him when he traveled from Roanoke, Virginia, to Washington, D.C. (Tr. 33). Thus, there was no evidentiary support for the charge in the First Count that Girst did "ship" the pistol "in interstate commerce" or for the charge in the Second Count that he did "receive . . . a firearm . . . in commerce."

The only remaining element of either offense, apart from the charge in both counts that he did "transport (the pistol) . . . in (interstate) commerce" is the allegation that he did "possess (the pistol) . . . in commerce," this being an allegation of the Second Count. However, the evidence in support of the allegation that Girst personally did "possess . . . in commerce . . . a firearm" is exactly the same evidence that supports the charge that he did "transport in commerce . . . a firearm . . . ." In fact, both allegations charge, in effect, the same personal conduct. And, since the transportation of the firearm in this case in both counts was accomplished by the "possession" referred to in the second count, the charge that Girst did "possess" the firearm "in commerce" is necessarily included in the allegation that he did "transport" the pistol. We thus conclude that the two counts do not allege two separate offenses of transportation and possession in interstate commerce as the Government asserts. Instead, in the context of this case the two counts allege essentially the same offenses, i. e., the transportation in interstate commerce of a firearm by a felon on February 11, 1977. There is no evidence in this record of any possession of the pistol "in commerce" apart from Girst's admission that he transported the pistol in commerce.

We thus note that the two statutes, section 922(g)(1) and section 1202(a)(1), insofar as they furnish the basis for Counts One and Two, both proscribe the same offense in that they make it...