United States v. Maxwell, 73-1668. Summary Calendar.
| Decision Date | 01 October 1973 |
| Docket Number | No. 73-1668. Summary Calendar.,73-1668. Summary Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Billy Gene MAXWELL and Robert Dale Mobley, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jerry H. Center, Oxford, Miss. (court appointed), for defendants-appellants.
H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Will R. Ford, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Billy Gene Maxwell and Robert Dale Mobley appeal from their convictions for possession of a sawed-off shotgun not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d) (1970). They complain of the admission into evidence of the shotgun seized during a search of their truck, and of the introduction of certain statements they made to Treasury Department agents. We affirm.
The events involved occurred in a trailer park in Grenada, Mississippi, on September 13, 1972. In the early evening on that date, one Jack Williams received a threatening telephone call from a caller, at first unknown to him, who identified himself as Billy Maxwell. Maxwell wanted to know why Williams had beaten his sister, Ann Williams. Williams hung up the telephone. Thirty minutes later Maxwell called again and invited Williams to come to a certain motel where Maxwell "would beat the hell out of him." Williams's wife, disturbed by the calls, telephoned the police. Shortly after the second call to Williams, Mobley and Maxwell appeared at the home of Williams's mother, in the Grenada trailer park, where Williams and his wife were visiting at the time. As the men got out of their truck, Williams's wife saw them put something she believed to be a gun under the front seat of the truck. She called the police a second time asking them to "please hurry up."
The police arrived at the trailer park shortly after Maxwell and Mobley. While one police officer questioned the defendants, another stood talking with Mrs. Williams beside the defendants' truck. Mrs. Williams asked one of the officers to "look in the truck and get that gun out before they let him go." The officer refused to do this, and told Mrs. Williams that she could not search the truck either. "Lady, you can't do that," he said. Ignoring this admonition, Mrs. Williams entered the truck and came out with a .22-caliber pistol. While the truck door was open and its interior light on, the police officer could see inside the truck. He saw shells on the seat and a few inches of the barrel of a shotgun protruding from underneath the front seat of the truck. He reached into the truck and seized the shotgun.
The seizure of the shotgun was not unlawful. To begin with, there was no constitutional problem with Mrs. Williams's actions. The fourth amendment does not apply to searches and seizures conducted by private parties. See, e. g., United States v. Blanton, 5 Cir. May 30, 1973, No. 72-3348. Mrs. Williams could not in any way be said to have been acting as the officer's "agent" in searching the truck; indeed, her action directly contravened the officer's instructions. Nor is there any constitutional objection to the officer's action. When an officer is in a place where he has a right to be, he may lawfully seize any evidence, contraband, or dangerous items in "plain view." Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. See United States v. Looney, 5 Cir. 1973, 481 F.2d 31, in which officers inadvertently discovered a gun in plain view in a bedroom while conducting a cursory security search after making a lawful arrest in a house.
The second issue the appellants raise concerns the introduction of certain statements made in the course of their interrogation by federal authorities. Two Treasury Department agents, accompanied by a deputy sheriff of Grenada County, questioned the defendants at the defendants' home on the day following the incidents at the trailer park. The defendants were not then in custody, but the agents nevertheless took care to advise them of their rights. The defendants told the agents that they had innocently borrowed the shotgun so that they could kill snakes while they were preparing a deer feeding plot. They refused, however, to disclose the identity of the person from whom they had borrowed the gun.
The defendants did not object to the admission of these statements prior to trial. They first made their objection when the Government sought to introduce the statements at trial. The trial judge then held a voluntariness hearing out of the presence of the jury. The defendants contended that the deputy sheriff who was later to accompany the Treasury agents during the questioning had spoken with them four or five...
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...question of the voluntariness of the statements must be sustained on appeal unless 'clearly erroneous' . . . ." United States v. Maxwell, 5 Cir., 1973, 484 F.2d 1350, 1352. Faithful to this standard, we differ with the District Court not on the facts but on the application of the law to tho......
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