United States v. Faulkner, 73-2299.

• Decision Date: 19 February 1974
• Docket Number: No. 73-2299.,73-2299.
• Citation: 488 F.2d 328
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Glen FAULKNER and Linda Forrest Davis Jurek, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.2d 328 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. James Glen FAULKNER and Linda Forrest Davis Jurek, Defendants-Appellants.

No. 73-2299.

United States Court of Appeals, Fifth Circuit.

January 17, 1974.

Rehearing and Rehearing Denied February 19, 1974.

David L. Wagner, Abilene, Tex. (Court-appointed), for James Glen Faulkner.

Marvin O. Teague, Houston, Tex., for Linda Jurek.

Frank McCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., (Fort Worth, Tex.), for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 19, 1974.

THORNBERRY, Circuit Judge:

Appellants Faulkner and Jurek were convicted of knowingly concealing and possessing counterfeit in violation of 18 U.S.C.A. § 472. In this appeal, both appellants contend that the counterfeit itself should not have been admitted in evidence against them since it was uncovered in an unconstitutional search of their car. Additionally, appellant Jurek contends that one of the jury instructions improperly shifted the burden of proof to the defendants. We affirm both convictions.

At approximately 8:40 p. m., Friday, May 9, 1973, Highway Patrolmen John Ferguson and Kenneth Maxwell were operating a radar unit on Interstate Highway 20 about four or five miles west of Big Spring, Texas, when they noticed a car approaching that did not appear to have a front license plate. As the vehicle passed they noted the rear Texas plate hanging at an angle, apparently secured by only one bolt, and the officers decided to investigate.

By the time the officers had caught up with the car, it was stopped in a parking lot. The officers questioned Faulkner about the missing license plate and the ownership of the vehicle. Faulkner explained that his brother-in-law owned the car but that he did not know his name. Jurek claimed that the car belonged to her husband and that she and Faulkner were only friends, contradicting Faulkner's claim that she was his wife. Suspecting that the car might be stolen, the officers attempted to check its vehicle identification number but discovered that it had been removed, as is common on stolen vehicle. Mrs. Jurek gave the officers the license and registration papers to the car but neither the defendants' names nor the names of anyone they claimed to know appeared on the papers.

Believing the vehicle to be stolen, Officer Ferguson began a search of it for other identification that might prove its ownership. In his search of the glove compartment he discovered a wallet containing personalized checks with the inscription James Faulkner and a large quantity of money, all in twenty dollar bills. Officer Ferguson took the wallet to the patrol car in order to inspect it in the presence of Faulkner. When the officers removed the bills they noted that the first five or six had the same serial number. A further search of the car uncovered more counterfeit twenty dollar bills.

Appellants' primary complaint is that their arrest for a minor traffic violation — driving without a front license plate — provided no justification for a search of the car. They rely primarily upon Amador-Gonzalez v. United States, 5 Cir. 1968, 391 F.2d 308, where we held unconstitutional a search of defendant's car for narcotics after he had been stopped for an improper turn. In that case, however, the stop was made by a narcotics agent who already suspected the defendant of possessing narcotics and used the traffic violation as a mere pretext to search for them.

The arrest in the present case was no mere pretext for the search. The officers in the investigation of the crime of driving without a front license plate certainly had the right to ask for Faulkner's driver's license and to make reasonable investigative inquiry about the ownership of the vehicle. United States v. Cross, 5 Cir. 1971, 437 F.2d 385; Myricks v. United States, 5 Cir. 1967, 370 F.2d 901, cert. dismissed, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474. When Faulkner and Jurek gave the officers conflicting stories about their relationship and the ownership of the car, the suspicion that the car might have been stolen was reasonably aroused. Under these circumstances, the officers acted reasonably in looking for the vehicle identification number. United States v. Johnson, 5 Cir. 1970, 431 F.2d 441. When they discovered that it had been removed, and when they saw that the names on the license and registration papers of the car were not those of either of the defendants nor of anyone they claimed to know, we think there was probable cause to suspect that the car had been stolen. Under these circumstances we hold, as did the Seventh Circuit in United States v. Jackson, 7 Cir. 1970, 429 F.2d 1368, that a search of the automobile for the purpose of discovering further indicia of ownership was reasonable and permissible. Accord, Meade v. Cox, 4 Cir. 1971, 438 F. 2d 323, cert. denied, 404 U.S. 910, 92 S. Ct. 234, 30 L.Ed.2d 182; Kendrick v. Nelson, 9 Cir. 1971, 448 F.2d 25. There was the necessary nexus between the reason for the arrest and the search to support a warrantless search of the automobile under Williams v. United States, 5 Cir. 1969, 412 F.2d 729. See also United States v. Kelehar, 5 Cir. 1972, 470 F.2d 176; Wellman v. United States, 5...