U.S. v. Shepherd

• Decision Date: 04 August 1983
• Docket Number: No. 81-5074,81-5074
• Citation: 714 F.2d 316
• Parties: UNITED STATES of America, Appellee, v. Buel Lee SHEPHERD, Appellant. . Re
• Court: U.S. Court of Appeals — Fourth Circuit

Page 316

714 F.2d 316

UNITED STATES of America, Appellee, v. Buel Lee SHEPHERD, Appellant.

No. 81-5074.

United States Court of Appeals, Fourth Circuit.

Reargued Nov. 11, 1982.

Decided Aug. 4, 1983.

Franklin Smith, Elkin, N.C., for appellant.

David Smith, Asst. U.S. Atty., Greensboro, N.C. (H.M. Michaux, Jr., U.S. Atty., John W. Stone, Jr., Asst. U.S. Atty., Greensboro, N.C., on brief), for appellee.

Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

Buel Lee Shepherd was convicted of possessing thirty-eight gallons of moonshine whiskey on which the tax had not been paid, and of removing it from its place of manufacture and concealing it, in violation of 26 U.S.C. §§ 5205(a)(1), 5604(a)(1) and 5601(a)(12). On appeal, Shepherd contends that his arrest and the warrantless search of his automobile were unlawful. Therefore, he urges, the fruits of the illegal arrest and search were improperly admitted at his trial. We hold that Shepherd's arrest was supported by probable cause, and that the warrantless search was justified under the automobile exception to the fourth amendment.

I.

Late in the fall of 1980, Lester Russell, an investigator for the North Carolina liquor control board in Winston-Salem, received information from a reliable confidential informant that the defendant was engaged in an illegal whiskey enterprise at his residence in North Wilkesboro, North Carolina, located fifty miles away. According to Agent Russell, on approximately thirty earlier occasions the informant had provided information that had led to over twenty-five convictions. After receiving the informant's report, Russell, together with North Carolina Alcohol and Beverage Control (ABC) Agent Robert Cobb and Agent Aubrey Huffman from the federal Bureau of Alcohol, Tobacco and Firearms, set up surveillance of the defendant's residence on the morning of December 3, 1980. Russell remained in the police vehicle some distance away while Cobb and Huffman positioned themselves in woods approximately one hundred yards to the rear of Shepherd's residence.

At about 8:15 a.m., Huffman observed Shepherd leave his residence and walk to a 1971 Mercury Cougar parked approximately seventy-five yards to the rear of the house. After opening the trunk of the automobile, Shepherd made three trips into a wooded area near the vehicle and returned carrying translucent one gallon white plastic jugs which he placed in the open trunk. ¹ Shepherd then closed the trunk compartment and walked to the driver's side of the automobile. At this point Officer Russell drove up. Agent Huffman, leaving his observation point in the woods, walked up to Shepherd and asked him for the key to the trunk. Shepherd took his car keys from his pocket and handed them to Huffman. Huffman then opened the trunk. The trunk of the car contained thirty-eight capped one gallon plastic jugs. The jugs were later opened without a warrant. Each jug contained moonshine. No tax had been paid and no tax stamps had been affixed to the jugs.

II.

We find no merit in Shepherd's contention that the agents lacked probable cause to arrest him. The agents had been supplied a tip from a highly reliable informant whose aid in earlier cases netted over twenty-five convictions on approximately thirty tips. Upon taking up surveillance at the location advised by the informant, the agents witnessed behavior consistent with the tip and with an illegal moonshine operation. The combination of a reliable tip and first-hand corroborative observation of suspicious activity provided ample cause to suspect Shepherd was engaged in criminal activity justifying arrest. See United States v. Branch, 565 F.2d 274 (4th Cir.1977) (arrest supported by probable cause when police, acting on informant's tip that one Branch, carrying drugs, would alight from certain air flight, arrested man matching informant's description getting into car registered in Branch's name).

III.

We turn now to the more difficult issue of whether the warrantless search of Shepherd's automobile violated the fourth amendment to the United States Constitution. The fourth amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Although by its terms the amendment does not equate unreasonable searches with warrantless ones, the Supreme Court has long held this view. In Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), for example, the Court wrote that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the fourth amendment--subject only to a few specifically established and well-delineated exceptions."

The search in this case was, of course, carried out without a warrant. The specific exception to the warrant requirement which the government urges upon us is the so-called "automobile exception," first announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). ² In Carroll, federal prohibition agents and a state policeman observed a car traveling on the road between Detroit and Grand Rapids, Michigan. Several factors led the agents to believe the vehicle was involved in bootlegging: illicit liquor traffic was prevalent in the area; the car's occupants had been observed before in the vicinity; and the agents recognized the occupants as persons having previously attempted an illegal liquor sale. The vehicle was stopped, and the agents proceeded to search the interior, uncovering a cache of illegal liquor hidden in the upholstery. The occupants were then placed under arrest. At their trial they maintained that the warrantless search of their car violated the fourth amendment. On appeal, the Supreme Court rejected this claim, reasoning that the suspects and evidence might have left the jurisdiction of the authorities by the time a warrant could have been obtained. The Court made clear that it was the particular exigence of the situation that justified a warrantless search, adding that "[i]n cases where the securing of a warrant is reasonably practicable, it must be used...." Id. at 156, 45 S.Ct. at 286.

The automobile exception took on new aspects in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). ³ There, the suspects in an armed robbery were stopped on a public street in a station wagon one hour after the crime occurred. The occupants of the car were arrested, and the station wagon was driven to the police station where an immediate search uncovered two revolvers and other items which were admitted into evidence against one defendant in his trial for armed robbery. Despite the fact that, unlike the situation in Carroll, there was no danger that the suspect vehicle would leave the jurisdiction, since its owner was in jail, the Supreme Court validated the warrantless search:

Neither Carroll ... nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search ....

Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the "lesser" intrusion is permissible until the magistrate authorizes the "greater." But which is the "greater" and which the "lesser" intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Id. at 50-52, 90 S.Ct. at 1980-1981 (footnote omitted) (emphasis supplied). See also Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (per curiam), discussed below.

While Shepherd acknowledges the relevance of these precedents, he argues that two factors block the application of the automobile exception in his case: the car's location on private property, as opposed to the public highway, ⁴ and the absence of exigent circumstances once the agents gained control of the vehicle.

In response to these contentions we first point out that the Supreme Court has never held that a vehicle's location on private property forecloses application of the automobile exception under all circumstances. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion), the Court did note the enhanced privacy interest residing in a vehicle parked in a driveway. But in invalidating a warrantless vehicle search by police following a lengthy murder investigation, the Coolidge plurality chiefly relied on the authorities' failure to obtain a warrant despite ample advance opportunity to do so and despite knowledge that the car was not about to disappear. The vehicle, which authorities knew to contain incriminating evidence, had been under surveillance for days. At the time the car was seized in Coolidge's driveway, there was no...