United States v. Davis

• Citation: 441 F.2d 28
• Decision Date: 05 April 1971
• Docket Number: No. 25221.,25221.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard DAVIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

441 F.2d 28 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Bernard DAVIS, Defendant-Appellant.

No. 25221.

United States Court of Appeals, Ninth Circuit.

April 5, 1971.

Ron Bain (argued), Los Angeles, Cal., for defendant-appellant.

Richard Jaeger, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Tom G. Kontos, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY, ELY and TRASK, Circuit Judges.

DUNIWAY, Circuit Judge:

Davis appeals from his conviction for possession of counterfeit Federal Reserve notes, 18 U.S.C. § 472. We agree with Davis that his motion to suppress the counterfeit money taken from his possession should have been granted, and we reverse.

The arresting officers, who were patrolling in a marked police car, stopped the car Davis was driving after observing the following three traffic violations: (1) Davis crossed to the left of the center line and drove on the wrong side of the street, approaching the left-hand curb; (2) Davis parked briefly on the wrong side of the street; (3) leaving his parking space, Davis drove for 50 yards on the wrong side of the street before re-crossing into the proper lane. Officer Saitman then, according to his testimony, "got out of the police vehicle, approached the defendant, who was driving, and asked him to alight from his vehicle, which he did. He walked over to the sidewalk, and I told him that he committed a traffic violation, that I would like to make a cursory search for weapons before I went any further. I did so. I patted him down for weapons and in the left front pants pocket I felt a large bulge. * * *" The "large bulge" turned out to be a roll of counterfeit bills.

This "cursory" search was a pat-down "starting just underneath the arm pits and going * * * all the way down to the feet." The Supreme Court has described such a "cursory" search as "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." Terry v. Ohio, 1968, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889. Accordingly, the Supreme Court concluded that such a search is permissible only where the officer

"has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. at 1883.

At the hearing on the motion to suppress, Officer Saitman testified:

"Q. Now, sir, if you would, would you please state to the Court what facts, if any, led you to believe that the defendant was armed at the time you approached him?

"A. There were no facts leading to make me believe the defendant was armed. As a patrol officer for three years in that vicinity * * * I make it my personal point to make a cursory search of everybody I pull over and have dealings with.

"Q. But in this particular case, as you testified, there were no facts whatsoever that led you to believe that the defendant was armed, is that correct?

"A. No, there weren\'t."

This testimony is corroborated by officer Phillips who was driving the police car. He testified that after Davis alighted from his car:

"A. At this time my partner, Officer Saitman, began to give him, the defendant, a cursory search, which we do with every person we come in contact with, every violator we come in contact with."

In the light of Terry, we cannot uphold this search.

In United States v. Robinson, D.C.Cir., 1970 (No. 23,734, Dec. 3, 1970), which the dissent cites, the court stated:

"We would note, however, that probable cause to believe that an individual has committed a traffic violation does not in itself provide probable cause or even `reasonable suspicion\' to believe that he is armed or dangerous in any way. See, e. g., Note, Searches of the Person Incident to Lawful Arrest, 69 Colum.L.Rev. at 874:

`* * * A protective search for weapons should be justified by an arrest alone only to the extent that the arrest creates a reasonable suspicion that the suspect is armed and dangerous. The mere arrest for a traffic violation would not appear to create such a reasonable belief.\' * * *"

Slip opinion at 16, n. 13.

Reversed with directions that the indictment be dismissed.

TRASK, Circuit Judge (dissenting):

I must respectfully disagree with the majority. It appears to me that the majority reads Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), too narrowly in the light of the facts disclosed here.

In Terry, an experienced police officer observed two men standing on a down-town Cleveland street corner. From time to time he saw one or the other of them walk past a particular store and peer in as though they were "casing the joint" in preparation for a burglary or robbery. A third man came up and spoke briefly to them and walked away. The officer followed when they walked on down the street where they were joined by the third man who appeared to be one of them. At this point he stated that he believed it to be his duty as a police officer to investigate and added that he feared "they may have a gun." Note that at this point there had been no violation of law; the officer had received no information that these men or any of them might have a gun; he had received no information or tip that they might be planning a crime and he observed nothing about their clothing to indicate a gun. To him they were simply suspicious characters. He approached them, stopped them, patted one down and found a gun, put all of them against a wall and frisked them and found a second gun. Terry was arrested and convicted for carrying a concealed weapon.

There, as here, the complaint was made that there was an unreasonable search and seizure. The principles as always are clear. A search and a seizure may be made only pursuant to a warrant lawfully issued and based upon a showing of probable cause. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A well recognized exception is that a search incident to a lawful arrest is a legal search. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). But even then the search must be reasonable and justified by exigent circumstancs. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Here we deal with law enforcement in its most frequent application — in connection with motor vehicles and day to day traffic violations. With a completely mobile population it becomes increasingly difficult and more and more critical as a...