U.S. v. Powless, 76-1639

• Decision Date: 04 January 1977
• Docket Number: No. 76-1639,76-1639
• Citation: 546 F.2d 792
• Parties: UNITED STATES of America, Appellee, v. Herbert G. POWLESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 792

546 F.2d 792

UNITED STATES of America, Appellee, v. Herbert G. POWLESS, Appellant.

No. 76-1639.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 12, 1976.

Decided Jan. 4, 1977.

Dennis P. Coffey, Milwaukee, Wis., for appellant.

Bruce W. Boyd, Asst. U. S. Atty., Sioux Falls, S. D., for appellee; William F. Clayton, U. S. Atty., Sioux Falls, S. D., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY and HENLEY, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

Defendant Herbert G. Powless has taken this appeal from his conviction by a jury upon an indictment charging interstate transportation of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a), and the resulting sentence of two and one-half years imprisonment imposed.

Defendant asserts that he is entitled to a reversal for the following reasons:

I. The search for and the seizure of the firearm was violative of defendant's Fourth Amendment rights. The court erred in refusing to suppress the firearm as evidence.

II. Defendant was twice placed in jeopardy as a consequence of the court's permitting the Government to try the defendant after a mistrial had been declared upon defendant's prior jury trial for the same offense, all in violation of defendant's Fifth Amendment rights.

III. The evidence is not sufficient to support the jury verdict of conviction.

For the reasons hereinafter set out, we reject each of such contentions and affirm the conviction. The relevant facts will be set out in connection with the discussion of the issues to which they relate.

I. Search and Seizure.

On March 1, 1975, about 1:30 p. m., State Trooper Van Orman received a state police radio broadcast advising that an individual by the name of War Bonnett had purchased a quantity of .357 magnum ammunition in Rapid City, that he had entered a bronze- or copper-colored van with another individual named Joseph War Bonnett for whom there was an outstanding state warrant, that the van was without license plates and was believed to be heading south on Highway 16, and that the van's occupants were considered armed and dangerous. Shortly thereafter a subsequent police broadcast advised that the van might be proceeding south on Highway 79. Van Orman, accompanied by another police officer, proceeded to Highway 79 and there observed a south-bound copper-colored van pass him, the van having no license plates. Recognizing the van as the one described in the state broadcast, Van Orman informed the state police radio of his discovery of the vehicle and arranged for a roadblock by other state officers further south on Highway 79 at a place where travel of other cars would be limited. The pursuit was continued.

The van was stopped at the agreed-upon roadblock. The seven Indian occupants of the vehicle were directed to step out of the van and did so. They were interrogated by the officers, starting with the driver, James War Bonnett. They were patted down for weapons. A cartridge belt with ammunition was found on one of the occupants. Joseph War Bonnett produced title papers showing that the van was owned by the American Council on Alcoholism, Milwaukee, Wisconsin. For the purpose of running a National Crime Information Center check on the van, Van Orman proceeded to the van to obtain its serial number, which he found on the back portion of the left door panel about two and one-half feet above the ground. While stooping over to read the serial number, Van Orman observed what appeared to be the butt end of a firearm in the rear of the van. He then, with the keys which had been left in the van, opened the back door and discovered four loaded firearms under a blanket, including the gun involved in this case.

Defendant in his brief concedes "the fact of an open warrant and a vehicle on a South Dakota highway without license plates were facts justifying an investigatory stop." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), holds:

. . . that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

Defendant attacks the search and the seizure of the gun here involved as a violation of his constitutional rights upon three grounds: (1) the search for weapons to protect the officers was unnecessary as the occupants of the van had been removed from it and placed under guard; (2) the search was without a warrant and was not an incident to a valid arrest; (3) the vehicle exception to a warrantless search does not come into operation under the facts of this case.

The trial court, after an extensive evidentiary hearing on the motion to suppress, in its unreported memorandum opinion, states:

Law enforcement officers are entitled to act on the strength of a radio bulletin. United States v. Cage, 494 F.2d 740 (10th Cir. 1974); see also Whitely v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037 (, 28 L.Ed.2d 306) (1971). In this case, a pair of radio bulletins advised that a bronze or copper-colored van would be traveling on Highway 79, that it contained one person for whom an arrest warrant had been issued, another who had purchased a quantity of ammunition, and that the van's occupants were considered armed and dangerous. The van in question matched the description given in the bulletin and was traveling on the highway where the van cited in the bulletin was predicted to be. The van bore no license plates. Under these circumstances, the officers were justified in making an investigatory stop of the van. See Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973); United States v. Geelan, 509 F.2d 737 (8th Cir. 1974). In furtherance of this investigatory stop, it was disclosed that the van was registered to the American Indian Council on Alcoholism. The record in this case does not disclose that anyone present identified himself as being associated with that entity. This fact, coupled with information in the radio bulletin, justified Patrolman Van Orman in obtaining the vehicle's serial number. United States v. Pearson, 448 F.2d 1207, 1213 (5th Cir. 1971); United States v. Powers, 439 F.2d 373 (4th Cir. 1971); United States v. Squires, 456 F.2d 967 (2nd Cir. 1972).

Since, in the judgment of this Court Patrolman Van Orman had a legitimate reason for checking the serial number, his limited intrusion in opening the van door to obtain the number was justified. His discovery of what appeared to be part of a firearm was inadvertent since it occurred while he was looking in the direction of the rear of the van to read the serial number. This discovery, coupled with the information on the radio bulletin, gave Patrolman Van Orman grounds for suspicion of a possible violation of law. Under these circumstances, the butt of the firearm can be said to have been in plain view, and thus its discovery was not the result of a search. See United States v. Wilson, (524 F.2d 595 (8th Cir. 1975)).

The "plain view" discovery of the stock of a rifle afforded probable cause to believe that the van contained more weapons, and justified Patrolman Van Orman's actions in unlocking and opening the van's rear door, and moving the blanket which covered the four rifles. See United States v. Sloven, 512 F.2d 1059 (8th Cir. 1975); United States v. Geelan, 509 F.2d 737 (8th Cir. 1974); United States v. Omalza, 484 F.2d 1191 (10th Cir. 1973).

The reasonableness of the police conduct called into question by this motion to suppress is to be assessed in light of all of the circumstances. United States v. Lawson, 487 F.2d 468, 477 (8th...