United States v. Alberty, No. 71-1198.

• Decision Date: 07 October 1971
• Docket Number: No. 71-1198.
• Citation: 448 F.2d 706
• Parties: UNITED STATES of America, Appellant, v. Richard Lee ALBERTY, Jr., Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

448 F.2d 706 (1971)

UNITED STATES of America, Appellant, v. Richard Lee ALBERTY, Jr., Appellee.

No. 71-1198.

United States Court of Appeals, Tenth Circuit.

October 7, 1971.

Richard A. Pyle, U. S. Atty., and Robert D. McDonald, Asst. U. S. Atty., Muskogee, Okl., for appellant.

Sam Caldwell, Muskogee, Okl., for appellee.

Before PICKETT, HILL and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Richard Lee Alberty, Jr. was indicted under Title 26, U.S.C. §§ 5861(d) and 5871 for unlawful possession of a firearm not registered to him. Alberty filed a Motion to Suppress. He argued that the law of Oklahoma applies in determining the legality of the arrest and seizure. The trial court found that the actions of the two Oklahoma State police officers constituted an illegal arrest of Alberty, in that it was made for a misdemeanor not committed in their presence. The Court found that the shotgun was illegally seized as a result of the illegal arrest. The Government appeals from that order under Title 18, U.S.C. § 3731.

The facts, as stipulated by the parties, are as follows. The Idabel, Oklahoma, police received telephone complaints shortly after 9 o'clock p. m. on April 8, 1970, that a certain motor vehicle was being operated recklessly in the city. About two hours later two city police officers spotted an automobile bearing the general description previously related via the telephone complaints. They had been keeping a general lookout for such a vehicle. A vehicle matching the description had stopped on a roadway in the city. Another vehicle had pulled up and had stopped beside it. It was then approximately 11:00 p. m. As the police officers approached in their vehicle, one automobile drove away. The suspect vehicle then proceeded slowly down the street. The police vehicle followed, flashing its lights dim and bright. The suspect vehicle pulled over and came to a stop. Appellee, Alberty, who had been driving the suspect vehicle, got out of his car leaving the left front door open. He proceeded to walk back toward the police vehicle parked behind. One of the police officers informed Alberty that complaints had been made concerning the reckless operation of a motor vehicle bearing the general description of his vehicle in the city. The other police officer walked up to the open left front door of Alberty's vehicle, looked in, and noticed a sawed-off shotgun laying on the front floorboard. The officer reached in and removed the weapon. The officers placed Alberty under arrest. He was not prosecuted by the State or City.

It is conceded by the Government that under the law of the State of Oklahoma the actions of the two police officers in bringing Alberty under their control, by causing him to stop his vehicle, constituted an illegal arrest under Title 22 Okl.St.Ann. § 196. Furthermore, the Government concedes that Oklahoma case law prohibits admission in evidence of anything seized incident to an illegal arrest. Fields v. State, 463 P.2d 1000 (Okl.Cr.App.1970); Thompson v. State, 444 P.2d 849 (Okl.Cr.App.1968); Catron v. City of Ponca City, 340 P.2d 504 (Okl.Cr.App.1959). The Government contends that: (1) the trial court erred in applying Oklahoma law governing search and seizure, in view of the fact that Alberty was indicted for a federal offense; and (2) for the purpose of determining the admissibility of evidence, the Government should be bound only to comply with the search and seizure requirements of the Fourth Amendment to the United States Constitution and the federal decisions relative thereto, and not with the more restrictive laws of the State of Oklahoma.

The Government cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in support of its argument that the actions of the two Idabel police officers were justified under the "stop and frisk" rule which allows police to bring a person under physical control in a manner not amounting to a technical arrest. The Government argues that in view of the telephone complaints tied to the general description of Alberty's vehicle, and considering the time and circumstances of observance of the Alberty vehicle by the two Oklahoma police officers, they were justified in stopping Alberty's vehicle and in conducting an investigation which constituted less than a formal arrest premised on probable cause.

The Government refers to the so-called "silver platter" doctrine first announced in Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). There the Court held that articles obtained as a result of an unreasonable search and seizure by state officers, without involvement of federal officers, could be admitted against a defendant in a federal criminal trial. That doctrine was later rejected by the Supreme Court in the case of Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). There the Court held that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated a defendant's immunity from unreasonable searches and seizures under the Fourth Amendment, is inadmissible over the defendant's timely objection in a federal criminal trial, even though there was no participation by federal officers in the search and seizure. In Elkins the Court stated:

"In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably

...