United States v. Novick
| Decision Date | 12 November 1971 |
| Docket Number | No. 71-1554.,71-1554. |
| Citation | 450 F.2d 1111 |
| Parties | UNITED STATES of America, Appellee, v. Lee Allen NOVICK, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William Osterhoudt (argued), of Cooper, White & Cooper, San Francisco, Cal., for appellant.
James Hazard, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., F. Steele Langford, Asst. U. S. Atty., Chief, Crim. Div., San Francisco, Cal., for appellee.
Before DUNIWAY and KILKENNY, Circuit Judges, and THOMPSON, District Judge.*
Appellant waived a jury trial and was convicted for possession of an unregistered machine gun, in violation of 26 U.S.C. §§ 5812 and 5861(d). We affirm.
Appellant met Mr. and Mrs. Cole Carter in January, 1969, at which time they invited him to be a guest in the spare bedroom of their Richmond, California home. At the time, appellant indicated that he was a collector of firearms and was preparing to return to his home on the East Coast. While he was on a trip to San Francisco, Mrs. Carter attempted to commit suicide. After Mr. Carter called an ambulance, the Richmond police arrived and were admitted to the home by him. The officers inquired as to weapons that Mrs. Carter might use in another suicide attempt and were told by Carter that appellant, their guest, had a rifle and that it might be in the room he occupied. The officers, with Carter's express consent, entered the room, and immediately observed a bandolier of ammunition, an olive drab rifle clip pouch and a rifle case, in which appeared to be a gun. One of the officers then opened the gun case, removed a gun and discovered that it was an Army M-2 rifle, equipped with a selector switch which made it capable of automatic action in violation of the cited statutes. The bandolier contained clips of M-2 ammunition.
Appellant claims that the actions of the officers in entering the guest room and opening his gun case violated his Fourth Amendment rights. At the outset, we must keep in mind that the amendment prohibits only unreasonable searches. Here, the officers entered the room with the express consent of one of the owners. Appellant was a non-paying guest, rather than a tenant. When the officers entered the room, they saw the ammunition and the gun case, which might well contain a loaded weapon. Beyond question, sound police procedures required the officers to open the case in order to determine whether the gun was loaded. When the gun was removed, they immediately observed the device which made the weapon automatic, and, consequently illegal.
The overall factual background in the record before us is somewhat similar to that part of the record in Coolidge v. New Hampshire, 403 U.S. 443, 486, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971), in which the officers asked Mrs. Coolidge if her husband owned any guns and she replied, "Yes, I will get them in the bedroom.", whereupon Mrs. Coolidge took the officers to the bedroom, removed four guns from a closet and delivered them to the officers. We quote from the opinion:
P. 488, 91 S.Ct. p. 2049.
If the actions of the police in Coolidge did not amount to an unreasonable search,1 neither did the actions of the police on the record before us. For that matter, the police in Coolidge were actually searching for guns in connection with an alleged crime. Here, the police were casually looking for weapons to prevent the recurrence of an attempt at suicide. Other than the opening of the gun case, there is no distinction between the actions of the officers here and those in Coolidge. Since the police were in the performance of their legitimate police duties at the time they opened the gun case and in a sense acting as agents of Mr. Carter in looking for weapons with which his wife might again attempt suicide,...
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