United States v. Gravitt

• Decision Date: 07 January 1974
• Docket Number: No. 72-3163.,72-3163.
• Citation: 484 F.2d 375
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Eugene GRAVITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.2d 375 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Eugene GRAVITT, Defendant-Appellant.

No. 72-3163.

United States Court of Appeals, Fifth Circuit.

August 30, 1973.

Certiorari Denied January 7, 1974.

John E. Roberts, Marianna, Fla. (Court-appointed), for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Clinton Ashmore, Asst. U. S. Atty., Tallahassee, Fla., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before WISDOM, DYER and INGRAHAM, Circuit Judges.

Certiorari Denied January 7, 1974. See 94 S.Ct. 879.

WISDOM, Circuit Judge:

This case involves the constitutionality of a warrantless search of an automobile. The defendant-appellant, Jerry Gravitt, was convicted on three counts of transporting firearms and ammunition in interstate commerce, in violation of 18 U.S.C. § 922(g) (1)-(2). We affirm.

I.

Jerry Gravitt and his two brothers, Ronnie and Eddie, were arrested outside a lounge in Panama City Beach, Florida, early in the morning on May 15, 1971. The police briefly searched the men at the time of their arrest, and found six .38-caliber revolver shells in one of the defendant's pockets. At the police station, officers searched them more thoroughly. On Jerry Gravitt they found a .38-caliber Colt revolver in one of his western-style boots. On Ronnie Gravitt they found a set of car keys and a motel key. The room key was to room 125 in the Tradewinds Motel in Panama City Beach.

Immediately after finding these keys, the police officers proceeded to the Tradewinds Motel. At the desk they discovered that the name on the registration card for room 125 corresponded with the name on false identification cards found on the defendant. He and his brothers had checked in on the morning of May 14, and had prepaid rent for three days. After this check at the desk, the officers went to the motel parking lot, where they found a 1965 Buick in the parking space reserved for room 125. Ronnie Gravitt's key fitted this automobile. One of the officers drove the car to the police station. At the station, he and another officer conducted a thorough search of the vehicle. They testified that in taking custody of the car and in searching its contents, they followed standard police procedures designed to safeguard the property of arrested persons.

The search of the Gravitts' car revealed a small arsenal: a bomb, consisting of a quarter of a pound of "Flex-X" military explosive with a piece of nylon cord wrapped around it, and a number 12 blasting cap; a 6-volt heavy duty Rayovac battery capable of detonating the bomb; an M-1 type 30-caliber carbine; a 12-gauge Remington model 11 shotgun loaded with five rounds of "00" buckshot ammunition; and a .45-caliber fully automatic rifle, with a 30-round magazine attached, fully loaded. In addition to the ammunition in the loaded guns, the officers found ten loose rounds of .45-caliber ammunition, and three loose rounds of 12-gauge "00" buckshot ammunition.

On the afternoon of May 16, a day and a half after Jerry Gravitt's arrest, two agents of the Alcohol, Tobacco, and Firearms Division of the Treasury Department came to the Bay County Jail to question him. During the course of the interview Gravitt confessed to the crimes with which he was later charged. He told the agents that he and his brothers had left Atlanta late in the evening on May 13 and had arrived in Panama City Beach early the next morning, when they checked into the Tradewinds Motel. He said that they had brought with them the weapons found in the car, and related that he had procured all of those weapons while he had been in Georgia. He admitted that he was a fugitive from Georgia, and that he had already served over four years on one robbery conviction. Although there was agreement as to what Gravitt said during the interview, Gravitt and the agents gave conflicting testimony about the circumstances of the confession. The agents testified that they had shown Gravitt a form advising him of his rights to counsel and to remain silent. He stated that he did not need counsel, and that his statements were made freely and voluntarily. Gravitt admitted he had been shown a form advising him of his rights, but contended that he had been induced to make his confession by the agents' promises that they would not prosecute his brothers if he would admit that the guns were his. The agents denied having made these promises.

Jerry and Ronnie Gravitt were indicted on a four-count indictment. Count II of the indictment was quashed.¹ The defendants were convicted on each of the other three counts. Count I charged them with interstate transportation of firearms by persons who were fugitives from justice, in violation of 18 U.S.C. § 922(g) (2). Count III charged them with interstate transportation of firearms by persons who had been convicted of crimes punishable by imprisonment for more than one year, in violation of 18 U.S.C. § 922(g) (1).² Count IV charged interstate transportation of ammunition by persons who had been convicted of crimes punishable by imprisonment of more than one year, also in violation of § 922(g) (1). The defendants were sentenced to imprisonment of five years on each of the three counts. Their sentences on the first and third counts were to run consecutively; their sentences on the fourth count were to run concurrently. Ronnie Gravitt chose not to appeal his conviction.

Jerry Gravitt asserts three grounds for reversal. First, he contends that the search of his automobile violated the fourth amendment, and that therefore the weapons found during that search should have been excluded from evidence. Second, he urges that his confession was not made voluntarily, and that the agents' testimony about it therefore should also have been excluded. Finally, he argues that a verdict of acquittal should have been directed because the Government did not introduce sufficient evidence apart from the defendant's confession to prove the corpus delicti of the offense.

II.

This Court has consistently recognized that the fourth amendment is not violated when the police take custody of the property of persons they arrest to store that property for safekeeping. United States v. Rosenberg, 5 Cir. 1972, 448 F.2d 1183; United States v. Boyd, 5 Cir. 1971, 436 F.2d 1203; United States v. Lipscomb, 5 Cir. 1971, 435 F.2d 795. In those, and other cases that might be cited, we recognized that when the police take custody of any sort of container— be it an automobile, suitcase, or any other thing in which property may be stored—it is reasonable to search the container to itemize the property to be held by the police. Boyd, 436 F.2d at 1185; Lipscomb, 435 F.2d at 800-801. These decisions reflect, of course, the underlying principle that the fourth amendment proscribes only unreasonable searches. Lipscomb, 435 F.2d at 800, citing Terry v. Ohio, 1968, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889, 899. In Lipscomb we articulated the considerations underlying the view that custodial seizures and accompanying inventory searches are reasonable:

It cannot be denied that to prevent escape, self-injury, or harm to others, the police have a legitimate interest in separating the accused from the property found in his possession. An inventory is then necessary both to preserve the property of the accused while he is in jail and to forestall the possibility that the accused may later claim that some item has not been returned to him.

435 F.2d at 800.

Our view is in accord with decisions of other circuits. For example, United States v. Blackburn, 6 Cir. 1968, 389 F. 2d 93; Cotton v. United States, 9 Cir. 1967, 371 F.2d 385, 392-393, have joined Lipscomb in citing the need to protect the property of the accused as well as to protect the police from ungrounded claims.³ The American Law Institute's Model Code of Pre-Arraignment Procedure adopts a view substantially in accord with the decisions in this and the other circuits. ALI, Model Code of Pre-Arraignment Procedure § 230.6(3) (Off.Draft No.1, July 1972).⁴

In this case, the search of Gravitt's automobile was lawful under the standards announced in Lipscomb and applied in Boyd and Rosenberg. The officers here testified that it was standard operating procedure for them to take the automobile of an accused into custody when doing so was necessary to protect the automobile or its contents while the accused was in custody. There can be little doubt that taking custody of the car was necessary here. The officers had arrested men who were travelling in a strange town and whom the officers expected to turn over to Georgia authorities in a few days. The Florida authorities would be held responsible for all the property these men had with them in Panama City Beach. This expectation gave them added reason to itemize the property in the car. In these circumstances both the seizure of the car and the inventory of its contents were not only constitutionally reasonable but necessary and desirable actions for the police to take.⁵

We do not lose sight of the dangers inherent in recognizing a police power to undertake custodial seizures and inventory searches. We recognize, as we did in Lipscomb (see 435 F.2d at 801), the possibility that the police might abuse that power by using it as a pretext to excuse themselves after the fact in circumstances where unjustifiedly they had failed to secure a search warrant. But, as in Lipscomb, we find little evidence in the case before us to suggest that the search we are examining was pretextual, and we repeat that we are "not willing to say that the possibility of a pretextual search is so great . . . that as a matter of law we must condemn the concept of a stationhouse inventory of personal property". Id. We are conscious, too, of the possibility that the police, in some circumstances warranting some limited form of inventory search, may often conduct searches which range beyond...