U.S. v. Scrivner, 81-1561
| Decision Date | 22 July 1982 |
| Docket Number | No. 81-1561,81-1561 |
| Citation | 680 F.2d 1099 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roy B. SCRIVNER, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael Stuhff, Flagstaff, Ariz., for defendant-appellant.
Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, GEE and GARZA, Circuit Judges.
Convicted of theft of cigarettes from an interstate shipment, Scrivner appeals. His sole complaint is of asserted error in the refusal of the trial court to suppress fatally incriminating evidence discovered in a warrantless search of certain trucks. The ground upon which the search was sustained is that of antecedent abandonment by Scrivner of the items and area searched. Though there can be scant doubt of his guilt, there can be even less that his fourth amendment rights were violated by the search complained of. Controlling authority leaves us no choice of remedy as to such a violation. 1
About a year ago, between 3:30 and 4:00 a. m. in Anthony, a small town on the Texas-New Mexico border, the municipal police were alerted by a "silent" burglar alarm that was, the record indicates, disposed to cry wolf. An officer who was dispatched to investigate encountered two vehicles on the way. About half a block from the site of the alarm, he observed Scrivner, driving a passenger car, pull out of a driveway near a recently burglarized business. On being stopped, Scrivner identified himself and explained that he and his female passenger had been "smooching." A second vehicle in the same vicinity, a truck, was also stopped and then allowed to depart, the truck driver explaining that he had been checking his tire pressures.
After ascertaining that the alarm had been a false one, the policeman returned to the area where he had stopped the vehicles, a warehouse in poor repair. Entering the premises, he discovered a rental-service truck with its cargo door slightly ajar parked behind the building. Through the door the officer could see unidentifiable boxes. Checking the building and finding nothing amiss, he returned to the truck, opened its rear door, and identified the boxes as containing cigarettes. Further investigation revealed that the windows to the truck cab were open and its keys in the ignition. Taking the keys and closing the door, he prepared to depart. As he did so, he spied through the open door of the warehouse another rental truck, this one inside it.
After returning to headquarters and calling for help, the officer returned with others to the scene. A search of the cabs and glove compartments revealed the truck lease agreements and that the second truck was also parked with its keys in the ignition. Suspecting no criminal activity at that time, the police impounded the trucks for their owner's protection. Later they learned that the cigarettes were from a hijacked shipment; and later that day, when Scrivner and another claimed the trucks, they were arrested.
Scrivner testified without dispute that he was the lessee of both trucks and warehouse at the time of the search. The police also admitted that they had been advised that the warehouse was leased by persons who would be loading produce at night...
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