United States v. Johnson
| Decision Date | 10 July 1972 |
| Docket Number | No. 71-1763.,71-1763. |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Mose Clair JOHNSON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jeff R. Laird, First Asst. U.S. Atty. (William R. Burkett, U.S. Atty., on the brief), for plaintiff-appellant.
Rollie D. Thedford, Oklahoma City, Okl., for defendant-appellee.
Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.
Pursuant to 18 U.S.C. § 3731, the government appeals from orders of the district court suppressing evidence and dismissing the indictment. The defendant was charged with possession of counterfeit Federal Reserve Notes in violation of 18 U.S.C. § 472. The issue hinges on the reasonableness of a search of a passenger in an automobile which had been stopped for violation of an Oklahoma City, Oklahoma, ordinance.
About 3:00-3:30 A.M. on July 14, 1971, two police officers observed a car apparently being operated in violation of a local anti-noise ordinance. A defective muffler was suspected to be the cause. Their attention was called to no other defects in the car or in its operation. After the car was stopped, officer Dawson approached it and found the driver and his wife in the front seat; the defendant was in the rear seat. The officer asked the driver for his operator's license. The driver replied that his license had been taken for a previous traffic violation. See 22 O.S.A. §§ 1114.1 and 1114.2. The officer told the driver to accompany him to the patrol car where, after he was patted down, he was placed inside. The driver's wife then appeared at the patrol car and exhibited a traffic citation which had been issued to her husband. Apparently everything checked out. The officer described the driver and his wife as cooperative. Officer Dawson then left the driver and his wife under the supervision of Officer Perkins and returned to the stopped car where he asked the backseat passenger, defendant herein, for identification. Defendant said that he had no identification. The officer told the passenger to get out of the car. His explanation was that he wished to run a check on the defendant.
The officer took the defendant to the patrol car where he patted and frisked him. The officer testified that this was a usual safety precaution before putting a person in a patrol car. In the course of the frisk of the defendant, the officer felt a "large object" in the right coat pocket. Upon examination the object was found to be a large quantity of off-color Federal Reserve Notes which contained several notes bearing the same serial number. The defendant was arrested for possession of counterfeit money. The driver was charged with operating defective equipment.
The stopping of the car occurred in a business district containing several restaurants and bars. The officer described it as a "high-crime" district but the incidence of crime does not appear in the record. The officer said that he was aware of the killing of a fellow officer about a mile and a half away about a month previously. Also he was aware of a robbery which had occurred the previous night in Oklahoma City, and he said that he was "curious."
The trial court in sustaining the motion to suppress said that the officer had no probable cause to arrest the defendant and no right to search him. In our opinion, legality of the arrest is not the criterion. In Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, the Court said that determination of whether a "stop-and-frisk" search was unreasonable requires inquiry "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." The Court described the objective standard to be whether "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?" Ibid. at 21-22, 88 S.Ct. at 1880. In construing Terry v. Ohio, we have said, United States v. Saldana, 10 Cir., 453 F.2d 352, 354:
"* * * under appropriate circumstances, police officers in the course of their duties may approach and question persons as to possible crimes and investigate suspicious behavior, even though there are insufficient grounds for arrest."
The issue is whether in the case at bar "appropriate circumstances" justify the officer's actions. Nothing connects the defendant with the defective car except that he was a passenger in it. The officer did not testify that at the time he requested him to get out of the car he had any suspicion that defendant had committed any crime. His "curiosity" in that regard was aroused later. In any event curiosity does not equate with reasonable suspicion. The record discloses nothing to indicate that the officer, when he ordered defendant out of the car, had any reason to believe that there was any danger to anyone's safety. Cf. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. 1868.
We are not impressed with the government's reliance on Hurst v. United States, 9 Cir., 425 F.2d 177, cert. denied 400 U.S. 843, 91 S.Ct. 86, 27 L.Ed.2d 78. There, officers had a warrant for the arrest of one man but did not know which of two men in a car was the person named in the warrant. Accordingly, they arrested both and in the process patted down the passenger who was not the subject of the warrant.
The court noted that in such circumstances there was authority for the arrest of both and that in the process of the arrest of the one named in the warrant the pat-down of the other was necessary for the officers' protection. Ibid. at 178. Our case is different. We are concerned with events incident to a traffic violation, not the service of a warrant.
Carpenter v. Sigler, 8 Cir., 419 F.2d 169, is not persuasive. In that case a passenger was arrested after police had seen an unidentified car with out-of-county plates driving slowly in a small town...
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