United States v. Pleasant, 72-1358.

• Decision Date: 08 December 1972
• Docket Number: No. 72-1358.,72-1358.
• Citation: 469 F.2d 1121
• Parties: UNITED STATES of America, Appellee, v. Ronald X. PLEASANT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

469 F.2d 1121 (1972)

UNITED STATES of America, Appellee, v. Ronald X. PLEASANT, Appellant.

No. 72-1358.

United States Court of Appeals, Eighth Circuit.

Submitted November 17, 1972.

Decided December 8, 1972.

James L. Crabtree, Kansas City, Mo., for appellant.

J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Chief Judge, ROSS, Circuit Judge, and VAN PELT, Senior District Judge.^*

MATTHES, Chief Judge.

Ronald X. Pleasant, having been convicted of a felony,¹ was found guilty of possessing a firearm, to wit, a shotgun, which was travelling in and affecting interstate commerce in violation of § 1202(a)(1), Title 18 Appendix U.S.C.²

Pleasant, hereinafter referred to as appellant, has appealed from the judgment of conviction entered on the jury's verdict.³

This appeal presents three contentions which we set forth and consider in inverse order to appellant's designation of the contentions in his brief.

(1) The court erred in denying the motion to suppress the shotgun and admitting it into evidence;

(2) The evidence was insufficient to establish that appellant possessed a firearm as set forth and described in the indictment;

(3) The evidence was insufficient to show that the firearm was travelling in and affecting interstate commerce.

I. MOTION TO SUPPRESS

Appellant sought suppression of the shotgun on the grounds that it was seized without a warrant as a result of an illegal arrest and illegal search. An evidentiary hearing held prior to the trial disclosed these undisputed facts.⁴ Appellant, driving an automobile, appeared at a service station operated by James L. Broyles in Carl Junction, Missouri, which is near the Missouri-Kansas border, on the afternoon of July 17, 1971. At the time, he was in possession of the shotgun described in the indictment. He attempted to purchase some tires from Broyles and proferred a credit card issued to one William X. Hawkins, in payment of the tires. Broyles, pursuing his custom where the sale exceeded $10.00, contacted the National Data Credit Card Service and was advised not to make the sale and "to pick up the card as a possible stolen card."⁵ Thereupon, Broyles refused to sell the tires, but appellant declined to surrender, the credit card to Broyles. Broyles did, however, transport appellant to the bus station in Joplin, Missouri, approximately eight miles from Carl Junction. The shotgun was placed by appellant on the back seat of Broyles automobile where it remained during the trip to the bus station. Broyles observed the butt and muzzle of the gun and that the remainder of it was wrapped in a "sweater or coat or something." Broyles also observed the gun in appellant's possession as he walked from Broyles' automobile to the Greyhound Bus Station in Joplin, Missouri.

In the meantime, Chief of Police Smith in Carl Junction had been informed of the credit card incident, given a description of appellant — that he was in possession of the shotgun, and that he could be located at the Greyhound Bus Station in Joplin. This information was transmitted by Chief Smith to police officer Roberts of Joplin, Missouri. Roberts proceeded immediately to the Greyhound Bus Station, learned that appellant had already boarded a bus and that the bus probably was at the Continental Trailways terminal in Joplin. At the request of the Carl Junction police the bus remained at the Continental Trailways terminal until Roberts had arrived there. Upon arriving, the officer boarded the bus, saw appellant, placed him under arrest, and requested that he leave the bus. Simultaneously, the officer observed a duffle bag on the seat next to appellant and also saw the shotgun in the baggage rack. When appellant stood, he reached for the shotgun and Roberts "stopped him and I took possession of the shotgun." Thereafter, and upon learning that appellant had been previously convicted of a felony and believing that the gun was being transported in interstate commerce, the indictment was returned.

The district court, for reasons enunciated in its memorandum opinion, suppressed all of the evidence (duffle bag and its contents) seized by the police officer except the shotgun.⁶ Notwithstanding the court's holding that there was no probable cause to arrest for the credit card incident, the court sustained the seizure of the shotgun, predicating its holding on the teachings of the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court reasoned that:

"In the circumstances of this case, the information passed on to Officer Roberts from Mr. Broyles through Chief Smith was sufficient to establish a reasonable suspicion that a crime had been or was about to be committed. Officer Roberts had received reliable information that the defendant was armed, and had possibly committed or was about to commit criminal acts, this court finds that the officer did not act unreasonably in seizing the firearm in his plain view which the defendant was about to grasp. As stated by the Supreme Court in Terry v. Ohio, supra at page 24; 88 S.Ct. 1868, 20 L.Ed.2d 889 `When an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.\' And, it is obvious from the evidence adduced during the hearing that the shotgun was seized by the officer for the purpose of protecting himself from its use against him by the defendant."

Admittedly, the facts before us are distinguishable from the stop and frisk situation in Terry. Appellant emphasizes that Terry cannot apply because it requires reasonable inquiries initially before an officer may frisk a subject and that here Officer Roberts admittedly made no inquiry. While a reading of Terry lends itself to this interpretation, the later Supreme Court case of Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) has, in our view, expanded upon the language of Terry. In Adams, a police officer, after having been told by an informant that a man sitting in a car was carrying narcotics and a concealed weapon at his waist, approached the car and requested the occupant to open the door. Instead, the man rolled down the window. Thereupon, the officer reached inside the man's coat and seized the gun which was where the informant had said it was. The police officer had made no prior inquiries; however, the Supreme Court upheld the search and seizure as proper behavior under Terry v. Ohio, because the police officer, having been told the man was armed, had a reasonable fear for his safety.

The same conclusion can be drawn from the facts in this case. Officer Roberts knew that appellant was in possession of the gun, that he was attempting to leave Joplin, that he had purchased a bus ticket for Springfield, Missouri, and that he had boarded the bus and had the gun in his possession. When Roberts confronted appellant and observed the shotgun, there was no need for him to investigate to determine whether appellant might be armed. It would have been foolhardy indeed if the officer had not seized the gun and taken it into his possession. The argument is made that the officer's own testimony suggests that he did not consider himself in danger when he seized the gun. The record does not bear out this contention. Roberts testified only that when appellant reached for the gun it was not "in the act of force or anything like that." This statement taken by itself does not indicate whether, in considering the totality of circumstances, Officer Roberts felt himself to be in danger. It seems to us that the seizure of the gun by the officer strongly supports the conclusion that he considered the gun to be a dangerous weapon and one that could be used by appellant to harm him or others.

Appellant also contends that in order for the seizure to be upheld under Terry, Officer Roberts would have had to specifically testify that he considered himself to be in danger when he seized the weapon. We do not feel that such specific testimony is required under Terry where, as here, the firearm was clearly visible to the officer. Such testimony might be required under Terry to justify an invasion of the person by a search; but here there was no search. Officer Roberts only seized the firearm and, in our view, an officer would almost as a reflex feel himself to be in danger when a person he is questioning regarding possible criminal activity possesses a visible firearm.

In sum, we sustain the court's action in declining to suppress the gun. In the final analysis cases involving the Terry doctrine must be considered and decided upon the peculiar facts presented. As we have observed, the Supreme Court itself has extended the Terry doctrine in Adams and courts of appeals have applied Terry in different factual situations. Cf. United States v. Wickizer, 465 F.2d 1154 (8th Cir. 1972); United States v. James, 452 F.2d 1375, 1377 (D.C. Cir. 1971); United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970).

II.

Appellant advances a technical argument in support of his...