United States v. Bonds
Citation | 422 F.2d 660 |
Decision Date | 27 February 1970 |
Docket Number | No. 19770.,19770. |
Parties | UNITED STATES of America, Appellee, v. Earl Russell BONDS, Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
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.
VAN OOSTERHOUT, Chief Judge.
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 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:
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:
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 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 arrest. The arrest for this offense was invalid under state law.
Under Fourth Amendment theory, however, a reviewing court must make an objective evaluation of the facts and circumstances surrounding the arrest of an individual. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889. Thus, if probable cause exists for the arrest of a person for a felony at the time of the arrest, the search incident to the arrest will be upheld if reasonable in scope, although the officer did not accurately name the offense for which the arrest was made. McNeely v. United States, 8 Cir., 353 F.2d 913, 918; Klingler v. United States, 8 Cir., 409 F. 2d 299, 305-306. See also In re Kiser, 8 Cir., 419 F.2d 1134; United States v. Skinner, 8 Cir., 412 F.2d 98, 102.
Missouri law does authorize an arrest without a warrant of any person whom the arresting officer has probable cause to believe committed a felony, even if the felony is not committed in his presence. Nash v. United States, 8 Cir., 405 F.2d 1047, 1050; Mueller v. Powell, 8 Cir., 203 F.2d 797, 800. The concept of probable cause under Missouri law is synonymous with the Fourth Amendment concept of probable cause and therefore, if the police officers had probable cause to arrest appellant for a felony, a search incident to the arrest could be upheld.
The Government urges that the police had probable cause to believe...
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