United States v. Nygard
| Citation | 324 F. Supp. 863 |
| Decision Date | 09 April 1971 |
| Docket Number | No. 6173.,6173. |
| Parties | UNITED STATES of America, Plaintiff, v. Howard J. NYGARD, Jr., Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Bert C. Hurn, U. S. Dist. Atty., Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.
O. J. Taylor, Springfield, Mo., for defendant.
This case, involving an alleged violation of Sections 5861(c), 5861(d), and 5861(i), Title 26, United States Code, proscribing the possession of an unregistered firearm, was tried without a jury. The parties agreed that the evidence should be considered in regard to both the merits and defendant's Rule 41(e) motion to suppress evidence. We deem it appropriate to state the reasons why we must return a verdict of not guilty in a case in which it is apparent that, except for a violation of Rule 5(a) of the Rules of Criminal Procedure, a conviction would have been obtained.
Whether a verdict of guilty or not guilty should be entered turns on the question of whether defendant's objection to the admission of the unregistered gun in evidence should be sustained. Defendant's objection was based upon (a) an alleged violation of the Fourth Amendment and (b) an alleged violation of Rule 5(a) of the Rules of Criminal Procedure. The first ground of the objection is not well taken. The second ground is valid. Defendant's objection must therefore be sustained and the defendant acquitted.
The following factual circumstances were established, for the most part, by contemporaneous documentary evidence, corroborated by the undisputed testimony of the witnesses:
At 2:33 a. m. on the morning of September 25, 1970, at the request of Detective Brogan of the Nassau County, New York, Police Department, the Missouri Highway Patrol and the Police Department of Cabool, Missouri, were sent the following message:
That message was received by the Missouri Highway Patrol at 2:35 a. m. on September 25, 1970. At 2:51 a. m. on the same day the message was radioed to the Weight Station maintained by the Highway Patrol near Cabool, Missouri, for eventual delivery to the Cabool police department. A member of the Missouri Highway Patrol at the Cabool Weight Station delivered the message, which he had copied down in longhand, to Patrolman Kelly, a member of the Cabool Police Department, at 3:40 a. m. on September 25, 1970. Patrolman Kelly put the longhand message on a clipboard kept in the Cabool Police Department's patrol car. He also made a note on his daily report, which is routinely reviewed by the police officer who succeeds him on duty, that
Patrolman Ward and Chief of Police Tucker of the Cabool Police Department became advised of both the message on the clipboard and the notation made by Patrolman Kelly in the officer's daily report when they came on duty later in the day of September 25, 1970. The official arrest report of the Cabool Police Department, dated September 25, 1970, prepared and signed by both Patrolman Ward and Chief of Police Tucker stated the following:
Subject had been reported enroute from New York to Cabool, Mo. for the purpose of killing his father. Subject reportedly was armed and dangerous. Subject when apprehended was armed with above weapon but offered little resistance to police officers. Subject stated that his purpose here was to originally kill his father with the above mentioned weapon, but that he had changed his mind. Subject incarcerated in Cabool City Jail pending investigation of possible felony charges stemming from the possession of above named weapon.
Those officers described the weapon involved in the alleged concealed weapon offense as a:
22 cal. Rifle modified by sawing stock and barrel off. Gun measured less than 13 inches overall length.
The defendant was in a public telephone booth a substantial distance from his parked automobile at the time of his arrest. There were some unimportant variations in the testimony of the two Cabool police officers and that of the defendant in regard to the details of that arrest and the seizure of the gun.1 Everyone agreed, however, that because of the tight-fitting sport clothes the defendant was wearing, it was clearly apparent to both arresting officers that he did not in fact have a weapon concealed on his person. It was also clearly apparent to the arresting officers that if the defendant was in fact carrying a weapon it would have to be in the automobile.
The warrantless search involved in this case was valid if (a) the defendant consented and thereby waived the necessity for any warrant which may have otherwise been required; or (b) the arresting officers had probable cause to search the automobile and therefore a warrant was not required under the circumstances. The primary thrust of the Government's effort to sustain the search was primarily focused on the consent ground. We made an express factual finding at the close of the case (Tr. 193-195) that it could not fairly be said that the defendant had in fact consented to the search.
Haire v. Sarver, 437 F.2d 1262, decided by the Eighth Circuit on February 5, 1971, makes clear that: "The consent to search is ordinarily a question of fact." We have not changed our mind in regard to the proper inferences to be drawn from the essentially undisputed testimony and therefore adheres to the finding made at trial on the issue of consent.
The fact, however, that defendant did not in fact consent to the search of his automobile does not, under the circumstances of this case, mean, that the Cabool police officers' search and seizure of the gun from under the driver's seat in defendant's automobile was in violation of the Fourth Amendment. Indeed, that police officer had a right to make that search without defendant's consent and without violating the Fourth Amendment if, under the factual circumstances, he had probable cause to do so. Such is the explicit ruling of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). See also United States v. Harflinger, (8th Cir., 1970) 436 F.2d 928, an appeal from this district, for a recent application of the principles enunciated in Chambers v. Maroney.2
We find and conclude, under principles articulated in Chambers v. Maroney that the state law enforcement officers had probable cause to arrest the defendant and to thereafter make a warrantless search of the automobile for a violation of Missouri law. The Cabool police officers in fact had information that the defendant was "alleged to have pistol in possession and has threatened to use same on father," as stated in the teletype from New York. Identification of the defendant presented no problem because Chief Tucker was acquainted with him. Failure to apprehend defendant under the circumstances would have constituted a failure of official duty.
At the time of the defendant's arrest it was obvious to the arresting officers that the gun was not on his person. The officers had probable cause to search the car to determine whether defendant was in fact carrying a concealed weapon within the meaning of Missouri law. Section 564.610, V.A.M.S., forbids any person to "carry concealed upon or about his person a dangerous or deadly weapon." The words "upon or about his person" have been read by the Missouri courts to mean the concealment of a gun "in such close proximity to the accused as to be within his easy reach and convenient control," State v. Conley, 280 Mo. 21, 217 S.W. 29. A gun carried under the front seat of an automobile has been held by the Missouri courts to be a violation of the statute. See State v. Tate, Mo., 416 S.W.2d 103; State v. Holbert, Mo., 420 S.W.2d 351; and State v. Tillman, Mo., 454 S.W.2d 923. It is thus apparent that the Cabool police officer had probable cause to look under the driver's seat of the car to see if there was in fact a concealed gun and, if so, to seize it.
Had either the State of Missouri or the United States elected to proceed with a timely prosecution, conducted in accordance with applicable procedural requirements, no valid objection could have been made to the admission of the gun in evidence in either a state or federal prosecution. But neither jurisdiction elected to do so.
This case demonstrates, perhaps better than most, that the relevant factual circumstances concerning the validity of the actions of law enforcement officers are usually established by contemporaneous documentary evidence. The failure of federal law enforcement officers immediately to assemble and carefully review that documentary evidence before authorizing federal prosecution often results in the ineffective administration of justice.3
In regard to defendant's objection grounded on an alleged violation of Rule 5(a), the contemporaneous documentary evidence established that defendant's arrest was promptly reported to other law enforcement authorities. The Missouri Highway Patrol, on behalf of the Cabool...
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