United States v. Cecil

• Decision Date: 05 April 1972
• Docket Number: No. 71-1407.,71-1407.
• Citation: 457 F.2d 1178
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Elmer CECIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

457 F.2d 1178 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Elmer CECIL, Defendant-Appellant.

No. 71-1407.

United States Court of Appeals, Eighth Circuit.

Submitted February 15, 1972.

Decided April 5, 1972.

J. Patrick Green, Omaha, Neb., for defendant-appellant.

William K. Schaphorst, U. S. Atty., Omaha, Neb., Richard A. Dier, U. S. Atty. D. Neb., for plaintiff-appellee.

Before BREITENSTEIN,^* HEANEY and STEPHENSON, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Defendant-appellant Cecil was indicted, and found guilty by a jury, on the charge of possessing a short-barrel shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871. He was sentenced under the Youth Corrections Act and now appeals.

At about 5:00 P.M. on August 22, 1970, a group of local and federal officers went to an Omaha, Nebraska, address for the purpose of serving arrest warrants on Duane Peak and Edward Poindexter, who had been charged with murder in state proceedings. At the time the premises were known to the Omaha police as the headquarters of the National Committee to Combat Fascism, a successor or affiliate of the Black Panthers organization.

There was a porch across the front of the building. The officers approached the premises with the expectation of opposition. Several officers went on the porch. Captain Hartford knocked on the screen door. Defendant appeared at the door. Hartford told him that they were police officers and had the mentioned warrants. He said they wanted to come in and asked if the parties were there. Defendant said, "You're not coming in," and dropped the catch in the lock. Lieutenant Perry shouted that defendant had a gun. Hartford pulled the screen door open, breaking the lock, and the officers entered in a rush. The gun was seized and defendant was arrested. The testimony on the location of the gun is not in agreement. One officer said that defendant held the gun in his left hand and was leaning it against a wall. A federal agent testified that defendant put the gun against the wall with his left hand and that the gun appeared to be a sawed-off shotgun. The gun had been altered to reduce its length below the statutory minimum and was not registered as required by 26 U.S.C. Chap. 53. Cecil was handcuffed and the officers then proceeded to search the house without finding those charged in the warrants. The search, subsequent to the seizure of the gun and the defendant's arrest, is not pertinent here and we say no more in that regard than that we disapprove of the manner in which it was conducted.

The trial court, relying on the plain-sight rule, denied a defense motion to suppress the use of the gun in evidence. Objects in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be used in evidence. Root v. Gauper, 8 Cir., 438 F.2d 361, 363. The gun with which we are concerned was in plain sight. The question is whether the officers had the right to be where they could see it.

Defendant says that the officers had no right to be on the porch because the warrants they were attempting to serve were not supported by constitutionally sufficient complaints, and, hence, were invalid. Regardless of the validity of the warrants, which were valid on their faces, we believe the police were entitled to go on the porch and knock on the door. Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476, 478. The porch and its approach had no warning signs and were open for use by tradesmen and others. The officers approached openly and in daylight. They were there to arrest those named in the apparently valid arrest warrants, not to seize the gun and arrest the defendant. They had probable cause to believe that at least one of the suspects was at the premises. Their intent was not to make a warrantless arrest or search, and there is no evidence that they knew the warrants were invalid and used them as a pretense to gain entry to the premises. Under these circumstances, we agree with the trial court's finding that the officers' entry on the porch and knocking on the door were lawful. Cf. Davis v. United States, 9 Cir., 327 F.2d 301, 303.

The observation of the gun was an independent and intervening factor unrelated to the legality of the warrants. Having observed the gun, the officers' reaction was reasonable. The premises were known to be the headquarters of a militant organization, and had been fortified for protection in the event of violence. Two individuals sought in connection with the slaying of an officer several days earlier were thought to be within. In the circumstances presented, the entry and the seizure of the gun were reasonably necessary and proper to prevent any untoward incident and "to neutralize the threat of physical harm." Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889.

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. Cf. United States v. Briddle, 8 Cir., 436 F.2d 4, 6-7, cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 24. 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.

In a state trial against others, defendant Cecil testified in support of a defense motion to suppress the use of evidence seized in the episode which...