United States v. Pearson

• Decision Date: 04 November 1971
• Docket Number: 29454.,No. 29260,29260
• Citation: 448 F.2d 1207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Upton PEARSON, Jr. and Edward Johnson, Jr., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Edward JOHNSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

448 F.2d 1207 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Upton PEARSON, Jr. and Edward Johnson, Jr., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Edward JOHNSON, Jr., Defendant-Appellant.

Nos. 29260, 29454.

United States Court of Appeals, Fifth Circuit.

September 21, 1971.

Rehearing and Rehearing Denied November 4, 1971.

Fred L. Banks, Jr., Jackson, Miss. (Court-appointed), for Upton Pearson, Jr.

W. S. Moore, Jackson, Miss. (Court-appointed), for Edward Johnson, Jr.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Daniel E. Lynn, Asst. U. S. Attys., Jackson, Miss., for the United States.

Before RIVES, THORNBERRY and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 4, 1971.

RIVES, Circuit Judge:

In No. 29260, Pearson and Johnson were jointly indicted and convicted of transporting in interstate commerce a motor vehicle knowing that it had been stolen in violation of 18 U.S.C. § 2312. In No. 29454, Johnson alone was indicted and convicted under 18 U.S.C. § 922(g) (1) of transporting firearms in interstate commerce after he had been convicted of a felony.¹

One result of the two separate trials is that this Court is presented with somewhat different versions of the facts pertaining to an alleged illegal search and seizure, each version being entitled to the same weight and legal presumptions. Under either version, able appointed counsel by careful analysis and cogent argument urge that the search and seizure were not legal. We therefore discuss the evidence in much detail. However, we ultimately reach the conclusion that the entirety of the facts and circumstances justified the search and seizure and that affirmance is in order, subject to defendants' motions for judgment n. o. v. or for a new trial.

On those motions, we hold that the evidence (confined, because of the Government's claim of executive privilege, to six trials all occurring in the same week) is insufficient to establish prima facie the defendants' claim of systematic misuse of the Government's peremptory challenges so as to exclude Negroes from petit juries.

In each case the evidence of guilt is more than substantial. Both men were found in a vehicle which had been stolen in another state less than 48 hours previously, and two rifles and suspicious tools were found in the vehicle. An agent of the Federal Bureau of Investigation testified as to inculpatory statements each defendant made to him. In Johnson's separate trial there was introduced a record of his prior felony conviction in a federal court.

I. The Motions to Suppress.

The defendants moved to suppress the rifles found in the vehicle and the vehicle identification number taken from the driver-side door post after the vehicle was impounded. A joint hearing was held on the motions to suppress, and the motions were denied.

A. Factual Background.

At approximately 3:00 A.M. on July 31, 1969, two Jackson, Mississippi, police officers, Jimmy L. Davis and Edwin S. King, stopped a 1960 Chevrolet. Johnson was the driver; Pearson and another man, Jason S. Martin, were passengers. On the rear floorboard were found two rifles and a military type duffel bag containing a crowbar, hammer, hacksaw, and screw driver. The Government contends that these items were "burglary tools." Defendants contend that neither the tools nor the rifles were in plain view and that there was no justification to search for them.

Three witnesses, Johnson, Pearson and Officer Davis, testified at the motions hearing. Davis testified that he and his partner were on a burglary detail, there having been two recent burglaries in the area. Johnson's car had presumably stopped at an intersection, and Davis first noticed it when it pulled away with the tires squealing and the lights off. The police by use of flashing lights and a siren pulled the car over, and Johnson and Officer Davis got out of their respective cars. Johnson exhibited his driver's license, a Louisiana license, and Officer Davis noted that the vehicle had a Louisiana tag. Davis said he informed Johnson that he was charging him with making an "improper start,"² but did not start writing out a ticket because Johnson had asked him for directions and he was responding.

After Davis and Johnson had been talking for some two minutes, Officer King, who had gone to the right-hand side of the civilian vehicle, shouted a warning that there were guns in the car. Davis did not know exactly what King had done prior to this time, but he did recall that King flashed a light into the vehicle. When the warning was shouted, Davis drew his pistol and stepped back from Johnson.

Johnson's testimony substantially matched that of Davis. He could not testify as to what Officer King had done, but he said that the rifles were on the rear floorboard under a blanket.

The only light shed on Officer King's actions was provided by Pearson. He testified that he was in the rear seat and that Martin was in the front.³ King approached the car and asked for identification. Pearson handed him his identification. He and Martin remained in the car. King asked Pearson where he worked, Pearson responded, and Martin was then asked for his identification. King then flashed a light into the car and saw the duffel bag. He asked what the bag contained, and Martin showed him. The rifles were under a blanket on the rear floorboard, and the duffel bag was on top of the blanket.

Pearson was uncertain as to the time sequence when King saw the rifles, when the car door was opened (or who opened it), and when the occupants were told to get out of the car. He did not know when or if King lifted the blanket. But he did testify that King asked what was under the blanket, and that some thirty seconds elapsed after King saw the tools before anything else happened.

The only man who could have authoritatively testified as to what Officer King did or did not see and do was King himself, and though the record indicates that he was present at the hearing he was not called upon to testify.

Prior to the arrests the Police officers had no knowledge that the vehicle was stolen or that Johnson had a felony record. There is no documentation of the charges appellants were booked on by the city police. There is some indication, and it was apparently assumed by all of possessing firearms and burglary tools. The most informative statement concerned, that appellants stood accused was made by Officer Davis who said that Johnson was charged with a traffic violation and that the charge was "possession of burglary tools, both of them, possession of burglary tools and investigation."

The motions to suppress were denied by the district court in the following language:

"It seems to me that these firearms were sufficiently in the open to have been observed by the Officer without a search warrant and I understood one of the defendants to say this bag, this tool bag, I believe they call it a naval tool bag held it up for one of the officers who saw a hacksaw, a hammer, a screw driver and a crowbar and etc., in there which is said to be burglary tools. The testimony shows to my satisfaction that these people were lawfully arrested and I believe the search that was made was a search made incident of whatever may have been discovered but again I think this is a question that the jury should be called upon to pass upon in connection with their guilt or innocence because this evidence if illegally seized of course it wouldn\'t be available it couldn\'t be used, so I believe I\'ll overrule the motion of Upton Pearson, Jr., and the two motions of Edward Johnson, Jr. to suppress." R. 46-47.

In order to determine whether reversible error was committed by the ruling on a motion to suppress, we must look not only at the evidence introduced on the hearing of the motion but also at the evidence brought forth on the trial. Evidence adduced at trial may be considered even though the evidence on the motion to suppress was insufficient to justify the search. Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; Rent v. United States, 5 Cir. 1954, 209 F.2d 893, 896.

In the first trial, the one for the Dyer Act violation, there was no further or differing evidence concerning the arrests. Officer King did not testify, but the Government is not to be faulted for this. King's testimony was particularly relevant as to the rifles. Reference to the rifles was sought to be avoided, since defendant Pearson was not accused of having anything to do with them. The propriety of the search and arrests must stand or fall on the evidence at the hearing on the motions to suppress.

In the second trial, the one for interstate transportation of a firearm by a felon, which concerned only Johnson, Officer King was finally called as a witness. He was called by the defense, the Government having rested without calling him. King testified that he approached the car on the right-hand side and asked the man in the rear seat (who he said was Martin) for identification. The man handed his identification through the window, and as King was checking it with his flashlight he saw the rifle butts sticking out from under the blanket. He then asked the occupants to get out of the car, and he did not see the duffel bag until they did so.

The three men in the car were arrested and the car was impounded. The next morning, Federal Bureau of Investigation Agent Edgar L. Martin entered the case. He testified that from the National Crime Information Center, a type of clearing house through which stolen property is reported and identified, he had been informed the vehicle was stolen. He went to the police lot to check the vehicle identification number to positively identify the car, and said he had not talked to any city police officers about the case nor seen the arresting officers' report prior to inspecting the vehicle.⁴

After checking the number, Agent Martin interrogated Johnson and...