United States v. Gilbert, CR 73-5019.

• Decision Date: 25 May 1974
• Docket Number: No. CR 73-5019.,CR 73-5019.
• Citation: 378 F. Supp. 82
• Parties: UNITED STATES of America, Plaintiff, v. Madonna Mae GILBERT et al., Defendants.
• Court: U.S. District Court — District of South Dakota

378 F. Supp. 82

UNITED STATES of America, Plaintiff, v. Madonna Mae GILBERT et al., Defendants.

No. CR 73-5019.

United States District Court, D. South Dakota, W. D.

March 14, 1974.

On Motion for Judgment of Acquittal for Lack of Jurisdiction May 25, 1974.

COPYRIGHT MATERIAL OMITTED

Edward Carpenter, Asst. U. S. Atty., Joseph M. Butler, Rapid City, S. D., Carleton R. Hoy, Sioux Falls, S. D., for plaintiff.

John E. Thorne, San Jose, Cal., Albert J. Krieger, New York City, Joseph Beeler, Chicago, Ill., James M. Shellow, Milwaukee, Wis., John S. Connolly, St. Paul, Minn., for defendants.

MEMORANDUM OPINION ON MOTIONS TO SUPPRESS

URBOM, District Judge, Sitting by Designation.

Warrantless searches of and seizures from an International Travelall at a road block near Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation on the first night of the February, 1973, difficulty at that village are the subject of the motions to suppress evidence now before the court. The motions seek to prevent the use in a prosecution for burglary and larceny of various items removed from the vehicle.

From an extensive suppression hearing I find the facts set out in this memorandum, although I recognize that there is variation in the testimony at some important points. A careful listening to the witnesses, considering the respects in which the testimony of each is supported or contradicted by testimony of others and weighing the credibility of each, lead me to these factual findings. Applying them to the applicable legal conclusions, I conclude that the motions to suppress evidence must be denied.

INVESTIGATIVE STOP

The Travelall and a 1963 Ford automobile were stopped for identification purposes by Darwin Coats, a Tribe policeman, at approximately 11:00 p.m. on February 27, 1973. Almost immediately after the vehicles were stopped, an F.B. I. car occupied by F.B.I. Special Agents Larry McGee, Merrill Sherer, and James W. Dick, and a Bureau of Indian Affairs policeman, Sergeant Fred Two Bulls, arrived where the two vehicles had been stopped and shortly thereafter the first search of the Travelall was conducted by McGee.

A few days before February 27, 1973, Special Agent McGee had been assigned to Rapid City, South Dakota, to investigate an incident at Custer, South Dakota, and the activities of the American Indian Movement. On February 27 he went to the Pine Ridge Indian Reservation and he and Special Agent Sherer were directed by their superior, Special Agent in Charge Trimbach, to observe activities at Calico Hall, which was in a settlement at least 15 miles west of Wounded Knee and at least 22 miles west of the place where the stopping of the Travelall occurred. In the early evening McGee noted that a caravan of cars left Calico Hall and drove into Wounded Knee, some of them carrying red banners signifying a connection with the American Indian Movement. He and the other F.B.I. agents heard shooting from Wounded Knee. He and the other officers were informed by police officers that the Trading Post at Wounded Knee had been broken into by armed people and "had been taken over," that looting had occurred, and that hostages were being held. The three agents and Sergeant Two Bulls were assigned to set up a roadblock north of Wounded Knee. En route to that position by a circuitous route which put them on a north-south road about seven miles east of Wounded Knee, Special Agent Dick saw the headlights of the Travelall and the Ford approaching from the north, traveling south. As the vehicles passed, he reorganized the Travelall as one he had seen on previous occasions in Rapid City, South Dakota, and on February 27, 1973, at Calico Hall. He orally relayed that information to the driver of the automobile in which he was riding, whereupon the car turned around and followed the Travelall and the Ford at a moderate speed.

At the junction at which southbound vehicles either could jog slightly to the east and proceed south or could turn east and continue proceeding east, or could proceed west into Wounded Knee, the Travelall, which bore out-of-state license plates, and the Ford were stopped by Coats, who had been stationed there to check out-of-state cars and had been told by radio from the Bureau of Indian Affairs police headquarters to be on the lookout for an International Travelall. Coats had begun to ask the driver of the Travelall for identification when the car carrying McGee and the three other officers pulled up to the scene. McGee and Sherer went to the Travelall and Dick to the Ford. At the passenger side of the Travelall McGee identified himself to the occupants of that vehicle and looked through the open right rear window of the Travelall, where he saw a revolver lying on the floorboard immediately behind the front seat and saw in the cargo space immediately behind the rear seat a large club bearing the letters AIM. The Travelall was occupied by the defendants, Miss DeCora—who now is Mrs. Means—and Miss Gilbert being in the front seat and Miss Ackerman in the back seat.

McGee ordered the defendants out of the Travelall and McGee stated in a tone loud enough that it was heard by each of the other agents and Sergeant Two Bulls that there was a gun in the Travelall. The defendants were then ordered to the front of the vehicle, where a pat search revealed no weapons on them. Approximately simultaneously with McGee's approaching the Travelall, Dick moved to the driver side of the Ford, identified himself to the two occupants, a man and a woman, heard McGee say that there was a gun in the Travelall, ordered the occupants of the Ford to alight, searched their persons, and communicated orally to McGee that they were not armed. McGee, Sherer, Dick, Two Bulls, and Coats were armed.

Immediately after the pat search of the occupants of the Travelall, McGee returned to the passenger side of the Travelall and reached inside the vehicle, picked up the revolver, and while reaching in saw in the cargo space immediately behind the back seat two wooden clubs, a large wooden object, and the barrel and magazine of a rifle. One of the clubs was about three feet long and two inches in diameter and one was a maul handle or axe handle about 36 inches in length. The large wooden object proved to be a rolling pin, which he could see in its entirety before picking it up, but only after picking it up and looking at it more closely did he notice it had a price tag on it from the Trading Post at Wounded Knee. He seized and removed from the Travelall each of the foregoing items. The revolver was placed, at least momentarily, on the roof of one of the cars and later put in the trunk of the F.B.I. car.

Radio communication was then had to Special Agent in Charge Trimbach, who directed that the occupants of the Ford and the Travelall be arrested for burglary and larceny. All were then formally arrested.

In my view, the circumstances as they existed immediately before the stopping of the vehicles were sufficiently suspicious to permit Coats to stop the vehicles merely for identification and questioning within the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968). McGee's assumption of the identifying of the Travelall occupants was not unreasonable. See Orricer v. Erickson, 471 F.2d 1204 (C.A. 8th Cir. 1973).

The scope of a search incident to an investigative stop is severely limited. An officer permissibly may make "a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry v. Ohio, supra, at p. 30. The area within the reach of an occupant of a vehicle may also be searched if the officer has reason to believe that the occupant is armed and dangerous. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The test is an objective one: "would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, supra, at pp. 21-22.

Here, McGee's going to the passenger side of the vehicle, identifying himself, and looking into the back seat area, where Miss Ackerman was sitting, were entirely appropriate. In plain view he saw a revolver at her feet. In Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), the court said:

"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence."

The seizure of that revolver was reasonable, even though the occupants of the vehicle had been placed in a position outside the vehicle and several feet from the vehicle at the time of its seizure. McGee knew when he went to the Travelall to retrieve the revolver that there were four other law enforcement officers on the scene. He did not know exactly, although he knew generally, where each of them was. He did not know exactly where the two occupants of the 1963 Ford were. It was dark; there were ten persons in the immediate vicinity of the intersection; a red light was flashing from atop one of four vehicles; two floodlights shown from atop Coats' car, although not aimed at the other vehicles; some movement of persons was occurring; and there was some confusion. Measured by the standard of what a reasonable person would consider appropriate, it appears to me that McGee reasonably could conclude that there was a danger to himself or another officer from the revolver which lay on the floor of the Travelall and the club which he had seen in the cargo space. He therefore was justified in proceeding to take temporary custody of those items. United States v. Pleasant, 469 F.2d 1121 (C. A. 8th Cir. 1972); United States v. Cecil, 457 F.2d 1178 (C.A. 8th Cir. 1972); United States v. Wickizer, 465 F.2d 1154 (C.A. 8th Cir. 1972). In the process of doing so he saw other weapons or...