U.S. v. Johnson

• Decision Date: 18 November 1980
• Docket Number: No. 80-1509,80-1509
• Citation: 637 F.2d 532
• Parties: UNITED STATES of America, Appellee, v. Henry James JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 532

637 F.2d 532

UNITED STATES of America, Appellee, v. Henry James JOHNSON, Appellant.

No. 80-1509.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1980.

Decided Nov. 18, 1980.

Daniel M. Scott, Federal Public Defender, Minneapolis, Minn., for appellant.

James A. Morrow, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, ADAMS ^* and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Defendant Johnson appeals from his conviction and sentence by the district court, ¹ sitting without a jury, on two counts charging possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d), 5871, and illegal possession of the same firearm after having previously been convicted of a felony in violation of 18 U.S.C.App. § 1202(a)(1). The sole issue on this appeal is whether the district court erred in refusing to suppress ² the sawed-off shotgun seized without a warrant prior to defendant's arrest and in refusing to suppress statements made by defendant after his arrest on the firearms charge. We affirm the conviction.

The record discloses that Minneapolis Police Officers Lindman and Howell were dispatched to the Martin Gas Station in Minneapolis, Minnesota, during the forenoon of February 15, 1980, in response to a telephone call for police assistance made by the gas station manager, Mrs. Arlene Berg. Mrs. Berg had been the victim of robberies on prior occasions. The dispatcher warned the officers "to watch ourselves."

On the morning indicated, defendant entered the gas station wearing a blue Air Force snorkel jacket with the hood tied around his face in such a fashion that only his eyes and nose were visible. He was carrying a green waterproof type duffel bag tied closed at the top, except for a cloth-covered object protruding therefrom about four or five inches. Defendant placed the bag near his feet and commenced making simulated telephone calls from a pay telephone located on the wall approximately two or three feet from the entrance. The calls appeared to the manager to be simulated because defendant deposited only a five-cent piece into the pay telephone and during one of the calls the telephone rang with an incoming call for the manager. Defendant, when making the calls, did not pull back his snorkel hood of his jacket but placed the telephone inside the hood. The manager further noted that defendant kept his gloves on during this period, appeared to be watching out the door and periodically looked at the manager, who was working at the counter. It was quite warm inside the station.

Mrs. Berg, fearful of a robbery, managed to call her husband who relayed the message to the police which resulted in the dispatch of Officers Lindman and Howell to the scene. Upon arrival, Officer Lindman immediately entered the station while Officer Howell, who was not wearing a bullet-proof vest, remained outside. Officer Lindman visited with the manager at the end of the counter approximately twenty feet from where defendant stood near the door. The manager described what had taken place with respect to defendant as set out above and indicated her apprehension.

Officer Lindman then approached defendant who was still standing by the phone, took him by the shoulder and asked him to step outside the station. Officer Howell then began a "pat-down" search of the defendant. Officer Lindman then reached or stepped inside the door of the station to seize the duffel bag that was sitting on the floor by the pay telephone. He grabbed the cloth-covered object protruding from the top of the bag, which he believed to be a gun. He proceeded to remove the cloth from the protruding object and found it to be the wooden stock of a weapon. He thereupon withdrew the weapon from the bag. ³

Officer Lindman displayed the weapon to Officer Howell. Defendant was advised he was under arrest. Officer Howell, with the assistance of two other officers who had arrived on the scene, completed the search of defendant. No other weapons were found.

Defendant was handcuffed, placed in the squad car and advised of his Miranda rights. Thereafter defendant orally admitted the weapon was his and later gave a written statement admitting possession and ownership of the weapon.

We must determine whether the warrantless search of the duffel bag was in violation of the Fourth Amendment. We commence by recognizing that the Supreme Court "has interpreted the Amendment to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the Warrant Clause." Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979). However, there have been some carefully delineated exceptions to the warrant requirement. "(I)n general, they serve the legitimate needs of law enforcement officers to protect their own well-being and preserve evidence from destruction." United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the instant case, "our inquiry is a dual one-whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, supra, 392 U.S. at 19-20, 88 S.Ct. at 1879.

The initial action by the officer, although objected to, is not seriously challenged by defendant. The information relayed to Officer Lindman by Mrs. Berg concerning the suspicious nature and actions of defendant, supplemented by the officer's own observations of defendant, were sufficient to warrant the district court's finding and conclusion that the "seizure" of the defendant and the limited "pat-down" search of his person were justifiable. It was reasonable for Officer Lindman to suspect from the circumstances that the defendant was about to engage in a robbery and thus was armed. This posed a threat to the officer's safety which justified the initial seizure and pat-down search.

The "search" of the duffel bag is a closer question. While Officer Howell was conducting the pat-down search of defendant, Officer Lindman "opened the door again, reached back inside and grabbed the duffel bag." ⁴ The bag was two or three feet inside the door. In doing so he grabbed hold of a cloth-covered object protruding four or five inches from the top of the bag. He concluded he was holding the stock of a sawed-off gun and removed the cloth and confirmed it was a gun stock. He pulled it from the duffel bag and determined it was an illegal weapon-a sawed-off shotgun. Defendant was then placed under arrest for possession of an illegal weapon.

Defendant contends that the warrantless search and seizure of the duffel bag was unreasonable, without probable cause and lacking in any exigent circumstances and therefore the shotgun must be suppressed under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and its progeny, including, Arkansas v. Sanders, sup...