United States v. Moody

• Decision Date: 24 September 1973
• Docket Number: No. 73-1313.,73-1313.
• Citation: 485 F.2d 531
• Parties: UNITED STATES of America, Appellant, v. Jasper Junior MOODY, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

485 F.2d 531 (1973)

UNITED STATES of America, Appellant, v. Jasper Junior MOODY, Appellee.

No. 73-1313.

United States Court of Appeals, Third Circuit.

Submitted July 2, 1973.

Resubmitted September 12, 1973.

Decided September 24, 1973.

Robert E. J. Curran, U. S. Atty., Richard J. Stout, Asst. U. S. Atty., Philadelphia, Pa., for appellant.

Edward H. Weis, Defender Assn. of Philadelphia, Philadelphia, Pa., for appellee.

Before GIBBONS and HUNTER, Circuit Judges.

Before GIBBONS, ROSENN and HUNTER, Circuit Judges.

Submitted Under Third Circuit Rule 12(6) July 2, 1973.

Resubmitted Under Third Circuit Rule 12(6) September 12, 1973.

Submitted Under Third Circuit Rule 12(6) on July 2, 1973.

Before GIBBONS and HUNTER, Circuit Judges.

Resubmitted Under Third Circuit Rule 12(6) on Sept. 12, 1973

Before GIBBONS, ROSENN and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This is an appeal by the government in a criminal case under 18 U.S.C. § 3731 (Supp.1973) from an order of the district court granting a motion to suppress as evidence 54 one-gallon jugs of nontaxpaid whiskey found in the trunk of a car driven by the defendant.¹ The government contends that the trial court erred in holding that the defendant has standing to challenge the constitutionality of the search in question, and in failing to find the warrantless search conducted in the case justifiable under the "automobile exception." The defendant-appellee challenges the district court's finding of probable cause for the search. While we agree with the district court's holding on the standing and probable cause issues, we find that it erred in holding the search unreasonable absent a warrant, and reverse.

The relevant facts are not in dispute. On April 5, 1972, Special Agent Dutch of the Bureau of Alcohol, Tobacco and Firearms received a telephone call from an unidentified informant. The agent was told that a 1961 Chevrolet bearing Pennsylvania license tag 97934G was leaving the 2500 block of Dover Street, Philadelphia, Pennsylvania, between the hours of 6:30 and 7:30 p. m., to make deliveries of nontaxpaid whiskey, and that the vehicle was moving approximately thirty cases each week. Agent Dutch observed the car in the area specified on the evening of April 6 and again on April 13. On the first occasion the car left the area unnoticed. On the second occasion, it was observed leaving at about 6:30 p. m., but Agent Dutch's attempt to follow it proved unsuccessful.

On April 19, the same informant telephoned Agent Dutch² and told him that a delivery would be made by the 1961 Chevrolet to 1345 York Street at approximately 8:30 p. m. the following evening. Dutch and other agents set up a surveillance of that address on the 20th. At about 8:20 p. m., the 1961 Chevrolet arrived and a black male, identified as the defendant, was observed carrying a cardboard carton from the car into the 1345 York Street address. Two agents thereupon approached the parked car. As they did so, the defendant started to leave the York Street dwelling. Upon seeing the agents in the vicinity of the car, however, he returned to the dwelling. The agents then retired to a location where they could not be detected.

At approximately 10:00 p. m. the vehicle left the area and the agents, all of whom were white, followed. Their cars were unmarked and apparently nothing they wore clearly identified them as Federal Agents. As the defendant stopped at a traffic light, one of the agents pulled alongside his car and stared at him for several seconds. The defendant, seeing the agent, sped away and a chase ensued. After several turns, the defendant stopped his car in the traffic lane and successfully escaped on foot. Thereafter, one of the agents moved the vacant car to the side of the road, and using the keys left in the ignition, opened the car's trunk and discovered the illegal whiskey.

The government's first contention is that the defendant abandoned the car and its contents and, as a result, lacks standing to challenge the legality of the search and seizure.³ If abandonment did occur, there would be a loss of standing. Abel v. United States, 362 U. S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). However, abandonment depends largely on the possessor's intent, United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962), and the party relying on it must establish the necessary state of mind by clear and unequivocal evidence. Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1965); see United States v. Robinson, 430 F.2d 1141, 1143 (6th Cir. 1970). We agree with the district court that the government has not met its burden on this issue.

The only facts from which one can infer intent indicate that the defendant, a black man, was aware that his vehicle was being followed by several unidentified white men and that earlier two men (again white) had approached his car. On these facts one could reasonably reach two conclusions: that he knew he was being followed by law enforcement agents and was seeking both to avoid arrest and abandon the incriminating evidence in the trunk of his car; or, that he believed he was being pursued by private citizens who intended to do him harm, and that he only left his car temporarily in order to escape this danger. Since only the former state of mind would constitute an abandonment, the evidence on the issue is ambiguous and cannot support a finding that the car and its contents were abandoned.

The next issue — whether the agents had probable cause to conduct the search — is raised by the defendant-appellee and not by the government. Ordinarily a defendant would not be able to take an appeal from a ruling on a Motion to Suppress since it lacks the finality necessary under 28 U.S.C. § 1291 (1970). See Bova v. United States, 460 F.2d 404 (2d Cir. 1972). However, since the government's appeal challenges an "order of a district court suppressing or excluding evidence," 18 U.S.C. § 3731 (Supp.1973), the defendant can raise issues with regard to findings and rulings relevant to that order under the umbrella of the government's appeal. United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970).⁴ As a result, the question of probable cause is properly before us.

Probable cause for a warrantless car search exists, if there is, "a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction . . . ." Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925). Clearly, the information provided by the anonymous informer could not meet this standard by itself. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We are satisfied, however, that when the "independently suspect activity" observed by the agent on the evening of April 20, is added to the anonymous tip and the evidence which corroborates it, there is sufficient evidence to support the district court's finding of probable cause. United States v. McNally, 473 F.2d 934, 939-940 (3d Cir. 1973).

The first thing to note is that the events as they unfolded prior to the search bore out the informant in every respect. The make, year and license tag number of the car were all as indicated, and at the time and place specified for a delivery, the defendant was observed carrying a large cardboard carton from the car into the 1345 York Street home.

While this corroborative evidence may not be sufficient to bring the tip itself up to probable cause standards, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), it does give it added credibility when it is weighed in conjunction with the independent evidence of suspicious conduct observed by the agents conducting the search. See Id. at 418, 89 S.Ct. 584; United States v. McNally, supra, 473 F.2d at 939. When the defendant observed the agents in the vicinity of his car, he retreated into 1345 York Street and waited about one hour. Certainly from this, the agents could reasonably suspect that the car contained contraband and that he was trying to avoid apprehension as its driver by delaying his departure until he was reasonably certain they had left.⁵ Further, when he sped away from the pursuing agents and then left the car (with the keys still in the ignition) in the middle of the street and fled on foot, the agents' suspicions with regard to the use being made of the car were legitimately heightened and confirmed. United States v. Edwards, 441 F.2d 749, 752-754 (5th Cir. 1971) (alternative holding); Pegram v. United States, 267 F.2d 781 (6th Cir. 1959). While these actions might be viewed differently, interpreting them as indicia of criminal activity is entirely reasonable. When they are added to the tip and the events corroborating it, there is ample evidence to support the reasonableness of the search.

The government's second contention, and the final issue raised, is that though no warrant was obtained for the search, it was justified under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543 (1925), which held that under certain circumstances the search of an automobile can be conducted without a warrant. The rationale for this rule lies in a car's mobility which often makes a search possible only within a brief period of time. Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As the Court explained in Chambers v. Maroney, 399 U. S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

". . . the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and

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