U.S. v. Rainone

• Citation: 586 F.2d 1132
• Decision Date: 09 November 1978
• Docket Number: No. 78-1820,78-1820
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mario RAINONE and Rocco Circelli, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1132

586 F.2d 1132

UNITED STATES of America, Plaintiff-Appellant, v. Mario RAINONE and Rocco Circelli, Defendants-Appellees.

No. 78-1820.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 13, 1978.

Decided Nov. 9, 1978.

G. Roger Markley, U. S. Dept. of Justice, Chicago Strike Force, Chicago, Ill., for plaintiff-appellant.

George B. Collins, Chicago, Ill., for defendants-appellees.

Before PELL, Circuit Judge, NICHOLS, Judge, ^* and SPRECHER, Circuit Judge.

SPRECHER, Circuit Judge.

The issue presented in this case is whether a "stop and frisk" performed by a police officer under the conditions set out by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), may properly be extended to a limited search of the vehicle in which the suspect was riding. We conclude that, in the circumstances presented by this case, it may and accordingly reverse the district court's order granting the defendants' motion to suppress.

I

At approximately 3:00 a. m. on the morning of January 17, 1978, two deputy officers of the DuPage County Sheriff's Office, David Swenson and Dennis Guzlas, observed a car with its headlights extinguished proceeding slowly through a parking lot next to a pizza parlor known as Mario's Pizza. The pizza parlor was closed, and, except for some illumination from a nearby used car lot, the parking lot was dark. The deputy sheriffs drove into the parking lot to investigate these obviously suspicious circumstances. They were followed by a squad car driven by Officer Gene Stack, from the West Chicago Police Department, who happened to be cruising in the area.

All three officers left their squad cars and approached the suspicious vehicle. Stack went to the driver's side; Guzlas and Swenson went to the other side. Guzlas asked the occupants of the car, defendants Circelli and Rainone, for identification and an explanation of their presence in the parking lot. Although both gave their names, only Circelli, who was seated in the driver's seat, could produce any identification. The explanation for their unusual behavior given to Officer Guzlas is in dispute. Guzlas testified that the defendants told him that they were related to the owner of the pizza parlor and were supposed to meet him in the parking lot. Defendant Rainone testified, on the other hand, that he told Guzlas that while en route home he had seen lights on in the pizza parlor and told Circelli to pull into the parking lot so that they could see whether his uncle, who often stayed late preparing for the next day, was there, in which case he would show Circelli the restaurant. At this point, Stack, having heard Rainone say he was related to the owner of the pizza parlor, told Guzlas that the owner of the parlor was involved in an intra-family feud, that there had been some threats of violence and thus that "there may be some danger involved here with these particular individuals due to the circumstances within the family." (Transcript, April 4, 1978, at 76).

Guzlas then ordered the defendants out of the car. Both defendants were given "pat-down" searches, and nothing was found. Officer Guzlas then left Rainone at the back fender of the car, where he had searched him, and engaged in a quick search of the car, glancing at the front seat, the back seat and the floor of the passenger compartment. Seeing nothing, he placed his hand under the front seat and felt an object which he thought at first was a billy club or night stick. Upon removing the object he discovered that it was instead some dynamite and a detonation device. Both defendants were then immediately arrested. Subsequently the Grand Jury returned a two-count indictment charging the defendants with possession of an unregistered destructive device and with a conspiracy to destroy the pizza parlor.

The defendants moved to suppress the evidence of dynamite possession. The district court found that the original stop of the car was a proper "investigative seizure," reasoning that the officers' reasonable suspicion of criminal conduct satisfied the Fourth Amendment, even though that suspicion would not have constituted probable cause to arrest. Similarly, the pat-down of the defendants was scrutinized under the standards set forth in Terry and was found to have been constitutionally permissible given the officers' reasonable belief that the defendants might have been armed. ¹ The district court, however, declined to extend this rationale to permit a search of the vehicle itself. Although the court admitted that it was impressed by the reasons of the officer in making the search of the automobile, it felt that Terry was not subject to such an extension since its rationale the protection of the investigating officer was satisfied by the pat-down. Accordingly, the motion to suppress was granted, and the government appeals this order under 18 U.S.C. § 3731 (1976). The district court's determinations that the automobile stop and the frisk of the defendants were permissible have not been challenged. The issue before us is limited to the validity of the search of the automobile.

II

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court announced a principle designed to accommodate the constraints of the Fourth Amendment to the protean variety of investigative encounters between police and ordinary citizens. That decision subjected the police officer's decision to detain momentarily a suspect for investigative questioning to a standard of reasonableness, a standard lower than that of probable cause to arrest. Given a legitimate detention under this standard, the Court permitted police officers to engage in a search for weapons on the person of the suspect "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 the crime." 392 U.S. at 27, 88 S.Ct. at 1883.

The issue here, however, is not whether the investigative stop and pat-down of the defendants was justified under the standards set out in Terry but is whether the scope of this search could be extended to the nearby automobile in which the defendants had been riding and to which they would return. The guidelines for the permissible scope of a protective search are clearly set out in Terry. Since the sole rationale for the search is the discovery of weapons, the search "must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer." 392 U.S. at 29, 88 S.Ct. at 1884. The search of the pedestrian in Terry, accordingly, was permissible because it consisted solely of a pat-down of the outer clothing of the suspect and thus was "confined . . . strictly to what was Minimally necessary to learn whether the men were armed. . . ." 392 U.S. at 30, 88 S.Ct. at 1884 (emphasis added).

Obviously in a sidewalk encounter with a pedestrian, such as occurred in Terry, the officer's need to protect himself from dangerous weapons is fully satisfied by a pat-down of outer clothing of the suspect. However, where the suspect is driving an automobile, a pat-down of the outer clothing may not be sufficient to assure the safety of the police officer. In those cases there is the real possibility that a weapon may have been secreted in a part of the automobile readily accessible to the suspect. This is particularly true where the suspect remains in the car, ² but is also true even where the suspect has been removed from the car. In the latter instance there is still a risk that the suspect may break away or that he may have a motive to kill the officer even after returning to his car. ³ Thus, it is clear that the rationale of Terry the protection of the investigating officer and others nearby permits the officer to make a search of the automobile, limited to what is minimally necessary to uncover weapons to which the suspect will have easy access.

The scope of the search in the case before us was clearly restricted to these permissible limits. Officer Guzlas merely looked inside the car and placed his hands under the front seat. He did not open the trunk or the hood or look under the back seat or chassis. Further, Officer Guzlas removed the object from under the front seat only after determining that it felt like a weapon such as a billy club or night stick.

Only three other cases have discussed the applicability of the Terry rationale to automobile searches incident to a momentary detention not leading to a custodial arrest. ⁴ The first of these is United States v. Green, 151 U.S.App.D.C. 35, 465 F.2d 620 (1972). In Green the police observed the defendant's vehicle travel at an excessive speed and run a stop sign. As a result the officers pursued the vehicle to make a routine traffic stop. As they approached the vehicle they noticed the defendant making "furtive gestures" which gave them the impression that he was armed. After stopping the vehicle, the defendant was ordered out of the car, whereupon he was frisked. Thereafter one of the officers reached under the driver's seat of the car and recovered a fully-loaded pistol. The court upheld the admissibility of the pistol into evidence. It reasoned that the furtive gestures had given the police officers sufficient reason to believe that the suspect was armed and that therefore a protective...