United States v. Harflinger

Decision Date18 January 1971
Docket NumberNo. 20017.,20017.
PartiesUNITED STATES of America, Appellee, v. Alfred Earl HARFLINGER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas G. Hanlon, Tulsa, Okl., for appellant.

Calvin K. Hamilton, First Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before MEHAFFY, GIBSON and LAY, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied January 18, 1971.

GIBSON, Circuit Judge.

The defendant Alfred Earl Harflinger was indicted and, in a jury trial, convicted on two counts of possessing a prohibited firearm, a bomb, in violation of 26 U.S.C. § 5861(c), and an unregistered firearm, a bomb, in violation of 26 U.S. C. § 5861(d).1 A co-defendant, James William Nash, was also so charged and convicted but is now deceased. Harflinger received a sentence of 10 years on each count, the sentences to be served concurrently. On appeal Harflinger has filed two briefs, one by his court-appointed counsel and another pro se, raising a series of questions relating to arrest, search and seizure, grand jury notes, Fifth Amendment guarantees, and pretrial disclosure of names of government witnesses.

We have considered all the issues raised in both briefs but will discuss only those that are relevant and that have sufficient substance to merit discussion. Those issues not discussed are deemed to be without merit. We affirm the judgment of conviction.

A somewhat comprehensive recitation of the factual background of defendant's arrest and the search and seizure of the evidence supporting the charges is necessary to place in context the defendant's claims of error on this appeal.

Leslie Heriford, a liquid petroleum gas dealer living two and a half miles north of Ava, Missouri, had been warned to watch out for his equipment. On February 22, 1969, Heriford awoke about 4:30 a.m. with an upset stomach and, while seeking medicinal relief, noticed a car turned crossways in the road with its lights shining on his barn. The car backed up into the highway and drove slowly past his house. His carport light illuminated part of the highway and enabled him to determine that the automobile was a late model black over white Chevrolet. He was not able to see the persons in the car. He told his wife about the incident prior to leaving home early that morning. Mrs. Heriford left home about 6:40 a. m. and while proceeding to the Ava post office she met a late model black over white Chevrolet headed north, about a half mile from the Herifords' 18,000 gallon propane tank. She could see the driver of the car, whom she identified at trial as the defendant, but she could not see the passenger clearly enough to make an identification. As she passed the storage tank just prior to meeting the Chevrolet, she had noticed tire tracks made in the snow leading to the storage tank. When she reached the post office she called her husband to see if he had been around the tank that morning and told him about the tire tracks in the snow. Upon receiving this information, Heriford and a nephew, Marvin Lofton, drove to the bulk storage tank where they noticed that a car had been driven in, had stopped (apparently to let someone out), and then continued on the circular drive around the tank and back to the road. The person who alighted from that vehicle left distinctive bootprints in the snow made by a lugged sole. His tracks indicated that he walked up to the tank, circled it, then walked across the pasture and reentered the automobile.

Heriford and Lofton then drove to Ava in an attempt to locate the automobile which Heriford had observed earlier in his driveway. They spotted the car at Maples Cafe. Upon entering the cafe, Heriford saw two strangers seated at a table, one of whom was wearing boots with a lugged sole that appeared to be identical to the tracks Heriford observed near his storage tank. The individuals in question turned out to be the defendant Harflinger and his co-defendant Nash. Heriford then sent for the highway patrol in an attempt to find out why Harflinger and Nash had been around his storage tank. In the interval, Harflinger and Nash left the cafe and entered their automobile, a black over white Chevrolet bearing Missouri license plates.

Corporal Davis and Trooper Moore of the Missouri State Highway Patrol arrived at the cafe as the Chevrolet was leaving. Corporal Davis immediately made radio contact with his headquarters and requested a license check. He was advised that the license in question was issued to a Robert Brockman of St. Louis, Missouri, for a 1967 Chevrolet. Davis then had a conversation with Heriford, after which Davis and Moore proceeded to the square of Ava where they met the 1967 Chevrolet heading back toward the square. Davis turned the patrol car around and caught up with the Chevrolet as it started to enter the square. He immediately used his red light to stop the Chevrolet, which pulled to the curb on the east side of the square.

Davis parked the patrol car at the side of the Chevrolet and both Davis and Moore got out of the patrol car as the two occupants of the Chevrolet were emerging from their car. Davis asked Harflinger and Nash for their driver's licenses, which they produced, and asked what their business was in Ava. Harflinger replied he was looking for a friend named Art but did not provide any last name for Art. Nash said he was a heavy equipment operator seeking employment. Davis then inquired as to the owner of the 1967 Chevrolet and was told it belonged to a friend whose name they would not disclose. Harflinger and Nash did not produce registration papers for the automobile and did not furnish information regarding the registered owner.2

Davis glanced into the Chevrolet and could see from his position outside of the car a claw hammer, large pliers and a butt end of a pool cue. On the front seat cushion he saw a roll of black friction electrical tape, two or three pairs of jersey cloth gloves and two or three road maps. One of the maps had the name "Leslie Heriford" written on it.

Davis then glanced into the interior of the automobile through the front door of the passenger side, which had been left open by Nash, and observed what appeared to be a chrome-plated handgun. After closing the car door, he moved Harflinger and Nash to the rear of the vehicles and told Trooper Moore to watch them. Davis then went to the driver's side, opened the door and looked beneath the seat; finding nothing on the driver's side, he reached over under the seat on the passenger's side and removed the chrome-plated handgun he had previously seen. It was a fully loaded .38 caliber revolver. Alongside of the revolver was a full clip of ammunition for a .45 caliber automatic.

Harflinger and Nash were then placed under arrest for having a concealed weapon, a violation of V.A.M.S. § 564.610, and given Miranda warnings. Davis asked Harflinger to open the trunk of the Chevrolet. Harflinger did not say anything but responded by stepping forward and unlocking the trunk. After the trunk lid was raised Davis observed a cardboard box in the trunk. Inside the box were ten sticks of dynamite, a length of slow fuse, an electric blasting cap with several feet of lead wire, an alarm clock and a 6-volt battery. The clock was ticking and Davis, thinking the device might be dangerous, pulled the wires loose from the clock. This homemade destructive device or bomb was so constructed that it could be set and made fully operative by placing one of the taped lead wires in the top of the alarm clock near a small hole which had been drilled in the face of the clock. It would thus be a time bomb which could be detonated as desired within the space of an hour. After disarming the bomb, Davis asked Harflinger and Nash if they knew anything about the bomb and they both stated they knew nothing about it or how it got into the trunk. The evidence adduced at the trial, however, showed that the fabric of five of the six gloves Davis took from the Chevrolet contained particles which were similar to particles of the dynamite found in the trunk of the Chevrolet. Likewise, similar particles were found on the shirts and trousers of Harflinger and Nash. In addition, the cut on the end of the roll of friction tape found on the front seat of the Chevrolet exactly matched the cut on one end of the tape used to tape the wire to the alarm clock.

Harflinger and Nash were then handcuffed and taken to the jail, which was less than a block from where the arrest occurred. Davis asked Lofton, who had arrived at the scene by this time, to drive the Chevrolet to the jail while Davis followed. Lofton parked the Chevrolet at the jail, locked it, and gave the keys to Davis, who then went inside the jail to assist in fingerprinting and booking Harflinger and Nash. After the booking Davis returned to the Chevrolet, unlocked the trunk and removed the bomb. This search also revealed a .30-30 Marlin rifle in the trunk and a fully loaded .45 caliber pistol under the dash. The ash tray contained ammunition for the rifle and the .45 automatic pistol.3

The next day Davis found a 1964 Chevrolet II parked in Ava which was registered to Nash. A subsequent check verified that the destructive device found in the 1967 Chevrolet was not registered in the National Firearms Registration and Transfer Record to Harflinger, Nash or anyone else.

Harflinger filed a pretrial motion to suppress the evidence obtained in the search of the 1967 Chevrolet claiming an unconstitutional arrest, search and seizure of the bomb and other incriminating evidence obtained in that search. He also contends that the original warrantless stopping of Nash and him was unlawful and that, if there were probable cause for the arrest, the act of causing the trunk to be opened (thereby revealing the bomb) constituted an unlawful search. The trial court overruled the motion.


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