U.S. v. Woods

• Decision Date: 07 October 1977
• Docket Number: No. 76-4179,76-4179
• Citation: 560 F.2d 660
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Calvin WOODS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 660

560 F.2d 660

UNITED STATES of America, Plaintiff-Appellee, v. William Calvin WOODS, Defendant-Appellant.

No. 76-4179.

United States Court of Appeals Fifth Circuit.

Oct. 7, 1977.

Rehearing Denied Nov. 3, 1977.

Doyle F. Chaney (Court-Appointed), Fred Blanton, Birmingham, Ala., for defendant-appellant.

J. R. Brooks, U. S. Atty., Shirley I. McCarty, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GOLDBERG and FAY, Circuit Judges, and DUMBAULD, District judge. ^*

FAY, Circuit Judge:

A jury found appellant, William Calvin Woods, guilty of possessing an unregistered shotgun in violation of 26 U.S.C. § 5861(d). ¹ Prior to the commencement of the trial, appellant filed a motion to suppress as evidence the shotgun described in the indictment. The denial of that motion, based on the "plain view" doctrine, inspired this appeal. We affirm.

THE FACTS

The testimony offered by the government at the suppression hearing reveals that at 8:30 one morning two county sheriff's deputies went to appellant's residence to execute an arrest warrant for Calvin Marshall, an alias used by appellant. ² One officer knocked on the door of the residence, but no one answered. As the officer knocked a second time, the door sprang open. Both officers then entered the residence, announced themselves, and started looking for Mr. Marshall when Brenda Jones, appellant's roommate, came out from the back of the house. ³ The officers asked to see Marshall and Ms. Jones led them to the back bedroom and then the bathroom. Not finding Marshall in either place, the officers began looking for him in the other rooms. Upon entering a room between the kitchen and the living room, one officer observed three to four inches of a shotgun barrel protruding out from under the front of a cabinet. He bent down to retrieve the barrel and, as he rose up, he observed the stock to the gun on the top shelf of the cabinet, the doors of which were open. After calling for a detective who arrived shortly thereafter, the officers left the residence, leaving the detective there with the shotgun. The officers and Brenda Jones went to a bakery where appellant supposedly worked but they did not find him. They returned to the residence and seized the shotgun.

Appellant's version of the facts varies slightly with the government's version stated above. Outside the presence of the jury, Brenda Jones testified that she was in the bathroom when the officers knocked but said nothing, and when she peeped out from the bedroom, they told her to come out. They asked for Calvin and told her to open the back bedroom door. They looked through the house, including behind a cabinet in the dining room. Finding what looked like a pipe, the officer pulled the cabinet away from the wall, opened the cabinet doors and looked inside, finding the stock to the shotgun.

THE ISSUES

In response to the government's contention that the officers were properly in the house and their seizure of the shotgun proper under the "plain view" doctrine, appellant contends that the officers' entry into the house was not with any consent of the occupant and thus the officers did not have a right to be where they were; that there was no accompanying arrest to justify the search of the house; ⁴ that the plain view After conducting a hearing, the trial court denied appellant's motion to suppress, stating:

doctrine is not applicable since the barrel observed by the officer was not in fact or appearance a shotgun; and that no exigent circumstances existed to excuse the officers from obtaining a search warrant.

The motion to suppress is denied. Officer Thomas' testimony was affirmative with respect to the open view. At most there is some minor contradiction by this witness of that and in no respect a direct denial that it could have been seen protruding, that is, the barrel part from the lower part of the cabinet. The fact that there is a dispute over whether the doors to the cabinet where the receiver portion (was) were open or not, the Court does not view to be credible to the issue. I could accept, for example, the witness' description of the door being closed, but once the barrel end was seen in open view, then the testimony given by Officer Thomas and by this witness would justify in the Court's opinion the opening of the door itself for the other portion of that weapon.

DISCUSSION

If the shotgun fell within the plain view of the officers and if they had a right to be where they were when they had that view, then the shotgun was subject to seizure and properly introduced into evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); ⁵ Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). ⁶

Although the facts related by the officers differ from the facts described by appellant's witness, Brenda Jones, credibility choices and the resolution of conflicting testimony are within the province of the finder of fact, in this instance, the court, subject only to the clearly erroneous rule. Hodgson v. H. Morgan Daniel Seafoods, Inc., 433 F.2d 918, 920 (5th Cir. 1970). Similarly, the trial court's finding of fact on a motion to suppress must be accepted unless clearly erroneous. United States v. Griffin, 555 F.2d 1323, 1324 (5th Cir. 1977); United States v. James, 528 F.2d 999, 1018 (5th Cir. 1976), cert. denied, Henry v. United States, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976); United States v. Horton, 488 F.2d 374, 380 (5th Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974); United States v. Gunn, 428 F.2d 1057, 1060 (5th Cir. 1970). See also 3 Wright, Federal Practice and Procedure § 675, at 130 (1969). The trial judge found, after hearing evidence on the motion to suppress, that at least the barrel part of the gun was in the officer's open or plain view. After reviewing the record, we are unable to say that this finding is clearly erroneous. "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Thus the finding that the shotgun was in plain view shall not be disturbed.

There is some discussion in the record and on appeal regarding the officer's recognition of the shotgun barrel as a shotgun barrel. Appellant contends that it was not "immediately apparent" (referring to Coolidge, supra, 403 U.S. at 466, 91 S.Ct. at 2038, and United States v. Drew, 451 F.2d 230, 233 (5th Cir. 1971)) that the observed object was contraband, that it could just as easily have been a pipe, and that the barrel by itself was not a shotgun. The officer testified that he saw the barrel of a gun protruding out from under the front of the small cabinet, the cabinet having some drawers and shelves and being approximately three to four feet in height with twelve inch legs. On cross-examination, the witness conceded that the barrel could have been mistaken for a pipe and that he determined it was a sawed-off shotgun by pulling it out from under the cabinet.

The record reflects that the barrel portion of the gun found under the cabinet measured 14 1/4 inches with the total length of the gun measuring 17 1/4 inches. Chapter 53, Title 26, U.S.C., prohibits the possession of any unregistered shotgun with a barrel of less than 18 inches and an overall length of less than 26 inches. Id., §§ 5845 and 5861. Perhaps if the cabinet had been extraordinarily deep (measuring front to back since the barrel was seen protruding out from the front), it might be more difficult if not impossible to know for sure that the observed barrel was less than the legally permissible minimum length. However, there is no evidence in the record to suggest that this problem is present in the instant case.

The appellant in United States v. Cecil, 457 F.2d 1178 (8th Cir. 1972), raised a similar argument when challenging the denial of his motion to suppress a sawed-off shotgun seized in plain view. In response to the appellant's contention that the officers could not seize his gun without knowing for certain that it was unregistered and too short, the court observed:

Defendant argues that nonregistration is an essential ingredient of the offense of possession of a sawed-off shotgun and that without knowledge of nonregistration the officers could not lawfully seize the gun and arrest the defendant. The argument is specious. Without knowing the serial number of the gun the officers could not check registration, and without measuring it they could not determine its length. Two officers testified that the gun appeared to be a sawed-off shotgun. Subsequent investigation revealed that the gun was within the class defined by 26 U.S.C. § 5845(a) and was not registered.

The observation of the gun gave probable cause for the reasonable belief that a crime, the possession of a contraband firearm, was being committed in the presence of the officers. . . . We know of no rule which requires an officer to have knowledge of all the elements of the crime when he views an article which reasonably appears to be contraband. A requirement that an officer must know the fact of nonregistration before seizing a contraband firearm would stultify the enforcement of the National Firearms Act. We are convinced that the trial court properly denied the motion to suppress and properly received the gun in evidence. 457 F.2d 1178, 1180-81.

Simply because the officer in the instant case stated that the barrel "could have been mistaken" as a pipe doesn't mean that he mistook it as such. Based on his experience and knowledge he thought when he first saw it that the protruding object was a shotgun barrel, of less than the required length, and indeed it was just that...