U.S. v. Wiecking

• Decision Date: 06 April 1983
• Docket Number: No. 82-1313,82-1313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James St. John WIECKING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 969

757 F.2d 969

UNITED STATES of America, Plaintiff-Appellee, v. James St. John WIECKING, Defendant-Appellant.

No. 82-1313.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 10, 1982.

Decided April 6, 1983.

Earle A. Partington, Honolulu, Hawaii, for defendant-appellant.

Alan Dunavan, Asst. U.S. Atty., Ft. Shafter, Hawaii, Jeffrey L. Caddell, Sp. Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Before MERRILL, Senior Circuit Judge, and FLETCHER and FERGUSON, Circuit Judges.

FLETCHER, Circuit Judge:

The panel unanimously agrees the case is appropriate for submission without oral argument. ¹

Appellant Wiecking was convicted of stealing a pair of stereo headphones from a post exchange located on Fort Shafter in Hawaii, in violation of 18 U.S.C. Sec. 641 (1976).

Wiecking, a stockman working for the exchange, was caught stealing the headphones by Alegria, a store detective, as he attempted to carry them away from the exchange in his car. Alegria first noticed the headphones and some foam on a desk in the rear of the stockroom, and learned from a store employee that this was a suspicious circumstance. When he returned to check on the headphones, they were gone. Alegria also noted that the garbage cans in the stockroom had just been emptied. He looked for Wiecking, the only stockman on duty, but Wiecking had clocked out. Alegria next went to the store parking lot, where he saw Wiecking take a plastic bag and some foam out of a dumpster and put it in his car. Alegria then approached the car; Wiecking slammed the door shut when he saw the detective. Alegria showed his badge and asked Wiecking to bring the plastic bag from the car into the manager's office. At that point, Wiecking admitted that the bag contained the stereo headphones and offered to pay for them.

During his trial before a magistrate, Wiecking moved to suppress the headphones as the fruit of an illegal arrest and an illegal search of his vehicle. The magistrate denied the motion on the ground that the defendant had consented to the search, and found him guilty as charged. The district court upheld the conviction, ruling the search legal because authorized by consent, or, alternatively, because supported by probable cause. From this ruling, Wiecking appeals.

We do not reach the question whether the vehicle search was based on valid consent, because we agree with the district court's alternative conclusion that it was supported by probable cause. ² Probable cause does not require proof of criminal activity, but only facts and circumstances sufficient to warrant a reasonable belief that an offense has been committed. See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 167, 45 S.Ct. 280, 290, 69 L.Ed. 543 (1925); United States v. Garza-Hernandez, 623 F.2d 496, 499 (7th Cir.1980).

We agree with the district court that the facts and circumstances known to detective Alegria met this standard. Wiecking's unusual action, removing a plastic bag and some foam from a dumpster, coupled with the detective's recent observations that the headphones had vanished and that the trash in the stockroom had just been emptied, justified a suspicion that the plastic bag contained the headphones. Thus, Alegria had probable cause to examine the bag to see if the headphones were inside.

Wiecking contends that the search was...