U.S. v. Johnson, 83-2242

• Decision Date: 15 May 1984
• Docket Number: No. 83-2242,83-2242
• Citation: 734 F.2d 503
• Parties: 15 Fed. R. Evid. Serv. 1576 UNITED STATES of America, Plaintiff-Appellee, v. Bobby Chris JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 503

734 F.2d 503

15 Fed. R. Evid. Serv. 1576

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Chris JOHNSON, Defendant-Appellant.

No. 83-2242.

United States Court of Appeals, Tenth Circuit.

May 15, 1984.

Kenn Bradley, Tulsa, Okl., for defendant-appellant.

Layn R. Phillips, U.S. Atty., Keith Ward, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.

Before SETH, Chief Judge, and BREITENSTEIN and McWILLIAMS, Circuit Judges.

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Appellant Bobby Chris Johnson was arrested by the Tulsa police in response to a call at 2:30 a.m. concerning a "man with a gun" in a yellow Cadillac in the parking area of Brandy's Club Lounge. The police found appellant sitting in his car, highly intoxicated, with a .357 caliber magnum revolver in plain view on the passenger seat. The revolver was later found not to be loaded. Appellant was arrested for actual physical control of an automobile while intoxicated. Following his arrest, appellant was handcuffed, searched and placed on the ground where he subsequently passed out. He was found to have 26.63 grams of 82 percent pure cocaine in his pocket.

The police conducted an inventory search of the car and had it towed. They discovered a box of .45 caliber ammunition in the passenger compartment and scales, a sifter, a cocaine analysis kit, a plastic bag of white powder and other items in two brown cases in the trunk.

Appellant was booked by the Tulsa police for actual physical control of an automobile while intoxicated and was charged in federal court with possession of a controlled substance with intent to distribute. At trial, testimony was adduced that the cocaine was worth approximately $13,315.00 and that the drug paraphernalia found in the trunk was of the kind used by drug dealers. A government witness' testimony regarding numerous drug transactions with appellant was given to establish intent to distribute. The jury returned a verdict of guilty.

Appellant asserts that the inventory search of the car was unconstitutional, that admission of evidence of past illegal activity was an abuse of discretion, that the evidence was otherwise insufficient to support a guilty verdict, and that failure to instruct on the lesser included offense of mere possession was an abuse of discretion.

The search was made following the arrest of appellant, and, with respect to the search of the passenger compartment, was lawful as incident to his arrest. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768; United States v. Martin, 566 F.2d 1143 (10th Cir.). In Martin, we upheld an inventory search of an automobile legally parked in a residential neighborhood after its owner was arrested for public drunkenness at 2:30 in the morning in his car. The present case is quite similar factually and we reach the same result here. In each instance, the police decided to have the car towed because the owner was clearly unable to drive and they were concerned about vandalism. This is an appropriate exercise of the "community caretaking functions" which the police have a responsibility to discharge. South Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S.Ct. 3092, 3096-97, 49 L.Ed.2d 1000; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706. To this end the police followed their routine procedure for securing and inventorying the automobile's contents.

In the present case a search was further justified because of the presence of the revolver. A warrantless search of an automobile, including entering a locked trunk, was found to be reasonable in Cady v. Dombrowski in order to retrieve a revolver that would possibly "fall into untrained or perhaps malicious hands." Id., at 443, 93 S.Ct. at 2529. Appellant's revolver in plain view clearly justified a search of the rest of the automobile for other weapons. Also, the presence of nonmatching bullets in the passenger compartment would justify a suspicion that matching bullets may be found elsewhere in the automobile or another weapon. Because the inventory search was valid the incriminating items discovered in the trunk were properly...