U.S. v. Pappas
| Decision Date | 08 June 1984 |
| Docket Number | No. 83-1802,83-1802 |
| Citation | 735 F.2d 1232 |
| Parties | UNITED STATES of America, Appellant, v. John Christopher PAPPAS, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Brent D. Ward, U.S. Atty., Salt Lake City, Utah, for appellant.
Max D. Wheeler, Salt Lake City, Utah (Sam N. Pappas, Salt Lake City, Utah, with him on brief), for appellee.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
Appellee-defendant Pappas was indicted for the possession of an illegal weapon after a sawed-off shotgun was found in his car. The district court ordered the shotgun suppressed as evidence finding that it had been seized in the course of an illegal search. The government appeals under 18 U.S.C. Sec. 3731.
Shortly before midnight on March 1, 1983, police officers from Price City, Utah, responded to a complaint that an unknown person had assaulted a patron of the Matador Club with a firearm. The first officer to arrive, Sgt. Blackburn, noticed four people in the parking lot in front of the bar. He believed one of them, who turned out to be the defendant Pappas, should be watched because his hands could not be seen. He communicated this information to officers Penrod and Nichols who arrived at the scene shortly thereafter. Pappas walked towards his automobile, a Bronco. The evidence was conflicting as to whether Pappas entered the car prior to his arrest. Only the arresting officerr, Nichols, testified that he had done so. Tr. 43, 41, 31, 81, and 85. Officer Nichols ordered Pappas to stop, frisked him, and conducted a limited search of the Bronco, finding a loaded .357 Magnum in the compartment between the front seats. Pappas was placed under arrest. When asked whether she had a charge in mind, Officer Nichols responded, "Loaded firearm in vehicle." Tr. 49. At the time of the arrest Officer Nichols knew that the defendant was not the perpetrator of the assault in the Matador Club. Tr. 61.
Under the Price City Police Department policy which requires the impounding of any vehicle whenever an arrest takes place, regardless of the circumstances, the officers decided to impound the car and began a complete inventory search. After Sgt. Blackburn began searching the car, Officer Dougal, shining a flashlight through the window, saw the butt of a shotgun protruding from under the seat. Tr. 13, 14. The weapon turned out to be a sawed-off shotgun and the defendant was indicted for possession of this illegal weapon. The court granted defendant's motion to suppress, finding that both the initial search and the inventory search violated the defendant's constitutional rights.
At a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence together with the inferences, deductions and conclusions to be drawn from the evidence, are to be determined by the trial judge. United States v. Donahue, 10 Cir., 442 F.2d 1315, 1316. The appellate court is bound by the trial court's determinations unless they are clearly erroneous. United States v. Coker, 10 Cir., 599 F.2d 950, 951. Where, as here, there are only conclusory findings, we may look to the judge's statements and rulings from the bench to ascertain the trial court's factual findings and credibility determinations. Coker, supra, 599 F.2d at 951, n. 1 and 2.
The protective search of the compartment in defendant's car was reasonable under the principles laid down in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and reiterated in Michigan v. Long, --- U.S. ----, 103 S.Ct. 3469, 3480-3482, 77 L.Ed.2d 1201. A finding that the initial search was justified does not extend to the inventory search of defendant's car. In Michigan v. Long, supra, 103 S.Ct. at 3482, the Court remanded the case for determination whether a search of a car's trunk was justified as an inventory search authorized by South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.
In Opperman, 428 U.S. at 368-369, 96 S.Ct. at 3096-3097, the Court said that in connection with "community caretaking functions" automobiles are frequently taken into police custody and subjected to an inventory search. It noted three bases for allowing such a search: to protect the owner's property in police custody; to protect the police against claims of lost or...
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...hearing on the defendants' motion to suppress that Mrs. Fisher was both a credible and reliable informant. See United States v. Pappas, 735 F.2d 1232, 1233, (10th Cir.1984). It must be granted that the information the F.B.I. received through Beth Fisher was hearsay and for the most part dou......
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Court Summaries
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