United States v. Bonds, 19770.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation422 F.2d 660
Docket NumberNo. 19770.,19770.
PartiesUNITED STATES of America, Appellee, v. Earl Russell BONDS, Appellant.
Decision Date27 February 1970

422 F.2d 660 (1970)

UNITED STATES of America, Appellee,
Earl Russell BONDS, Appellant.

No. 19770.

United States Court of Appeals, Eighth Circuit.

February 27, 1970.

422 F.2d 661

Victor Packman, Clayton, Mo., for appellant.

Peter T. Straub, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., and Jim J. Shoemake, Asst. U. S. Atty., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and HEANEY, Circuit Judges.


This is a timely appeal by defendant Earl Russell Bonds from his conviction and resulting sentence on an indictment charging possession of a short-barreled

422 F.2d 662
shotgun in violation of 26 U.S.C.A. § 5841.1

Defendant made a motion to suppress a gun taken from a second floor bedroom in his home as evidence upon the ground that it was illegally seized in violation of his Fourth Amendment rights. Such motion was overruled. Defendant waived trial to a jury and was tried to the court. He renewed his motion to suppress and objected to the reception of the gun in evidence upon Fourth Amendment grounds. His objection was overruled. He was convicted.

The only issue presented by this appeal is whether the court erred in refusing to suppress the gun as evidence. It is the Government's contention that the gun was seized incident to a lawful arrest of the defendant. Defendant's primary contention is that the arrest was not lawful because probable cause for the arrest has not been shown. We find no substantial evidence of probable cause for arrest and reverse.

At the hearing on the motion to suppress, only defendant and his wife testified. Both testified the shooting was accidental and that the law enforcement officers were so advised. There was no evidence offered to establish the existence of probable cause for arrest. At the trial, officer Dominick testified. The ruling on the motion to suppress was an interlocutory order subject to change before final judgment. We must look to all the evidence in the record to determine whether probable cause for arrest is established.

On January 9, Mrs. Bonds was shot in the left hand when a shotgun belonging to her husband accidentally discharged while she was handing the gun to defendant to put in a bag. Defendant placed his wife in a cab with directions to take her to the hospital and at his wife's direction went back to the house to take care of their three-year old child.

Mrs. Bonds was hysterical. The taxi driver became frightened and took Mrs. Bonds to a fire station about a block from her home and she was shortly taken to the hospital by ambulance. Mr. Bonds promptly phoned the police and reported the accidental shooting. Policemen in response to a call arrived at the fire station.

Mrs. Bonds testified that she told the officers when they arrived that she had been accidentally shot by her husband and gave her home address and stated her baby was there.

Officer Dominick, accompanied by other officers, went from the fire station to the defendant's residence, displayed their guns, knocked at the door and ordered the defendant to step outside and immediately arrested him for assault. He was not questioned prior to his arrest about the shooting. Shortly thereafter, he was taken to the police station where he was charged with discharging of firearms within the city limits.

The officers immediately after the arrest searched the house and found the gun here involved in an upstairs bedroom on a bed, hidden under bed covers. Two or three of the Bonds children were found in the house and were taken to the station. There is no evidence that the gun was found as an incident to looking after the children.

Officer Dominick in his official report of the incident, which was filed within a few hours thereafter and which is in evidence, stated:

"The undersigned was dispatched to Engine Company No. 2 at Pennsylvania and Olive, where the above victim had gone for help. Upon arrival, it was learned from the victim that she was handing a shotgun to her husband when it accidentally went off. The victim further stated that their children were still at home with her husband. The victim was conveyed to St.
422 F.2d 663
Louis County Hospital in City Ambulance No. 1, manned by fireman Karas and Linnemeyer, accompanied by Patrolman Gleason. The undersigned proceeded to 1099 Pennsylvania, where Earl R. Bonds was taken into custody for further investigation.
"A check of the house by the undersigned for the weapon used revealed a sawed-off shotgun covered up on a bed in the second floor southwest bedroom, and also a Mossberg .22 caliber rifle in the second floor center bedroom."

As a witness, Dominick testified that he responded to a call about the shooting by going to the fire station and that he there found an hysterical woman who said her husband shot her with a shotgun and that she wanted her children taken out of the house. On cross-examination, he testified as follows:

"Q Did you, in that report, quote Mrs. Bonds as stating that the shooting was accidental?
A I believe I did.
Q And did you hear her tell you that?
A No. She did say it was accidental after — she was pretty hysterical at the time also.
Q But before you went to the home on Pennsylvania Avenue, did you get that ultimate fact, that she did say it was accidental?
A We weren\'t positive that it was purely accidental.
Q Well, that is your conclusion, and I mean what did she say? That is what I want to get clear.
A What did she say? She said her husband shot her with a shotgun.
Q And did you ask whether it was deliberate or —
A No.
Q — — or whether there was a fight?
A No.
Q Wouldn\'t that be a matter of curiosity to you?
A She also — —
MR. SHOEMAKE: I object to it as being argumentative.
THE COURT: All right. I will sustain it as to form.
Q (By Mr. Packman) When did she mention it was accidental?
A She mentioned this at the hospital after talking with an officer. She mentioned it, I believe while she was in the ambulance too."

Both Mr. and Mrs. Bonds have consistently stated that the shooting was accidental and there is no evidence to the contrary.

There is no question that there was a search made and that defendant is entitled to Fourth Amendment protection. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. It is undisputed that the officers had no warrant for the arrest of Bonds or for the search of his home at the time the search was made. The question presented is whether under the facts above related the search of the upstairs bedroom which produced the gun was unreasonable under the Fourth Amendment.

As a general rule, a warrantless "search" is "unreasonable" under the Fourth Amendment unless the search is within an exception to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930; See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 18 L.Ed.2d 943; Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856; Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514.

As recognized by the trial court one such exception to the warrant requirement is a search incident to arrest. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. See cases discussed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. In order for a search incident to arrest to be recognized as an exception to the warrant requirement, two factors must be present: (1) The arrest must be valid under the authority giving the officer

422 F.2d 664
power to arrest. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210. (2) The arrest must be based upon "probable cause." Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L. Ed.2d 917

The first factor for determination under the circumstances of this case is whether the police could validly arrest appellant under state law. At the appellant's trial, the court held that the search of his home was justified as incident to his arrest for discharging a firearm within the city limits. This offense is a misdemeanor under Missouri law.

Under Missouri law, a law enforcement officer does not have authority to arrest a person for a misdemeanor not committed in his presence unless the officer possesses a warrant. State v. Parker, Mo.App., 378 S.W.2d 274, 281; Independence v. Stewart, Mo.App., 397 S.W.2d 765, 767; Jackson v. United States, 8 Cir., 408 F.2d 1165, 1169. Since the arrest for discharging a firearm was for a misdemeanor without a warrant, the trial court erred in upholding a search incident to such...

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    ...1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968]; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 [1969]." United States v. Bonds, 422 F.2d 660, 665 (1970). Given the facts available to Hose at the time, he would have been derelict in his duty as a law officer if he had not ensured hi......
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