United States v. Kirsch, 73-2910.
| Decision Date | 12 July 1974 |
| Docket Number | No. 73-2910.,73-2910. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Edward KIRSCH, III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carl J. Barbier, New Orleans, La. (Court-appointed), for defendant-appellant.
Gerald J. Gallinghouse, U. S. Atty., Stephen A. Mayo, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.
Before GOLDBERG and AINSWORTH, Circuit Judges, and LYNNE, District Judge.
Rehearing and Rehearing En Banc Denied July 12, 1974.
Appellant Kirsch seeks reversal of his conviction for violation of 18 U.S.C. Appendix § 1202(a), which prohibits receipt, possession, or transportation of a firearm by one having been convicted of a felony. Finding that the trial court erred in admitting into evidence the incriminating pistol, holster, and bullets, seized as the result of a constitutionally impermissible frisk, we reverse.1
At approximately 2:00 a. m. on the morning of February 6, 1973, Kirsch was stopped by two officers of the New Orleans police department because they found his manner of driving suspicious. After the stop Kirsch, who was riding with three women, got out of the car and walked back to talk to the officers. Apparently on the basis of appellant's inarticulate and confused responses to questioning, Officer Magee patted him down. This frisk led ultimately to the discovery of the firearm and accompanying paraphernalia. At oral argument counsel for both appellant and the Government agreed that the admissibility of each of these items turned on the constitutional validity of the frisk.
The constitutional prerequisites for a frisk of the person following an investigative stop appear in the Supreme Court's opinion in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Noting that "even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security,"2 the Court established a limiting standard.
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...does the majority uphold the seizure of the nylon holster from Mr. Johnson’s pocket? We are not told. Cf. United States v. Hirsch , 493 F.2d 465, 466 (5th Cir. 1974) (suppressing firearm, holster and bullets seized during a 2:00 a.m. Terry frisk of a driver because, despite his "standing ar......
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State v. Burgess
...purpose of searching for evidence to provide probable cause for an arrest. In support of his position, Burgess cites United States v. Kirsch, 493 F.2d 465 (5th Cir.1974); State v. Giltner, 56 Hawaii 374, 537 P.2d 14 (Hawaii 1975); State v. McDougall, 59 Hawaii 305, 580 P.2d 847 (Hawaii 1978......
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United States v. Tharpe, 75-1491.
...necessary to give assurance that they are unarmed. U.S. v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971). 9 Cf. United States v. Kirsch, 493 F.2d 465 (5th Cir. 1974). 10 Of course, as a practical matter this bespeaks good police procedure. Normally, however, before the police take someone ......
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U.S. v. Tharpe, 75-1491
...suffice as a foundation for a legal inference of risk of danger, or the vaguely suspicious "manner of driving" in United States v. Kirsch, 5 Cir. 1974, 493 F.2d 465, 466. We need not go so far as the Ninth Circuit's rule of general justification conferring categorical reasonableness upon se......