United States v. Garr
| Decision Date | 06 June 1972 |
| Docket Number | No. 71-3035.,71-3035. |
| Citation | 461 F.2d 487 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William GARR and Anthony Brewer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas R. Bryan, Jr., Columbus, Ga., for William Garr.
T. M. Flournoy, Jr., Columbus, Ga., for Anthony Brewer.
William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Before RIVES, BELL and MORGAN, Circuit Judges.
Defendants-appellants Garr and Brewer were charged in the same indictment with knowingly possessing unregistered incendiary devices in violation of 26 U. S.C.A. § 5861(d),1 and with aiding and abetting each other in the commission of the crime as charged. They were tried jointly and a verdict of guilty was returned against each. The several assignments of error relate to the admissibility of evidence or to the refusal to admit evidence offered during the trial. Finding no prejudicial error, we affirm.
The arrest of defendants took place in Columbus, Georgia. At the time, the city was the scene of serious civil disturbances. There had been at least sixty firebombings as a part of the disturbance. Several of the firebombings had occurred in the neighborhood where defendants were arrested. As a result of the emergency situation, there was concentrated police protection in the area.
While patrolling this area during the early morning hours of June 25, 1971, the arresting officers observed defendants and a third individual walking along the street. The officers testified that they recognized appellant Garr as one having been recently charged with illegal possession of a firearm. They also observed bulges or protrusions under the shirts of both defendants.
According to the testimony of the arresting officers, they stopped the patrol car, and at that time Garr attempted unsuccessfully to flee. Defendants were then placed in a "frisk" position against the police car and a warrantless search of their persons was conducted. The search revealed the incendiary devices in their possession. They were taken into custody, turned over to federal authorities, and charged with the violation of 26 U.S.C.A. § 5861(d).
Defendants filed pretrial motions to suppress the evidence (the incendiary devices) seized at the time of their arrest. After hearing arguments and receiving evidence on the motions, the district court denied relief. It was urged then as here that the evidence was procured through unreasonable searches and seizures in violation of the Fourth Amendment. Thus one issue is whether the district court erred in denying the motions to suppress and in admitting the evidence at trial over renewed objections.
We find no merit in these arguments. The record discloses that the police officers acted in a reasonable and prudent manner under the circumstances. The late hour and the bulges under the shirts of defendants, taken within the setting of civil disorder, sniping, firebombings, and other violent acts in the area, was enough to arouse the suspicion of the officers, even in the absence of Garr's attempted flight. Furthermore, Garr was known to the officers as having been recently involved in a firearms violation. Under these circumstances, we conclude that the search in question was a proper "stop and frisk" measure. Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The district court properly denied the motion to suppress and there was no error in admitting the incendiary devices into evidence.
Defendants further complain that it was prejudicial error to admit certain evidence procured from the People's Panther Headquarters. More specifically, the evidence complained of included, among other items, pictures of Huey Newton and Angela Davis, an American Flag being used as a foot mat, a diagram of a firebomb, and a diagram of the area surrounding the headquarters. We do not find that the introduction of this evidence under the circumstances presented here entitles them to relief.
The court excluded this evidence during the government's case. Defendant Garr lived at the Panther headquarters and was in charge of the building. He insisted, during his testimony, on going into the purposes of the People's Panther...
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