United States v. Ragsdale, 71-3593.

• Decision Date: 17 January 1973
• Docket Number: No. 71-3593.,71-3593.
• Citation: 470 F.2d 24
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip Scott RAGSDALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 24 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Scott RAGSDALE, Defendant-Appellant.

No. 71-3593.

United States Court of Appeals, Fifth Circuit.

November 10, 1972.

Rehearing and Rehearing Denied January 17, 1973.

Edward A. Mallett, Houston, Tex. (Court appointed), for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 17, 1973.

CLARK, Circuit Judge:

In this automobile search case we must strike a proper constitutional balance between the competing interests of society in the detection of crime and the individual's Fourth Amendment right to be left alone. The defendant, Phillip Scotty Ragsdale, was convicted of bank robbery. The pivotal evidentiary ruling related to monies discovered in the course of a warrantless search of Ragsdale's car on the highway after he had been stopped for a speeding offense. Viewing the totality of the circumstances present, we find the search to have been a reasonable one which did not offend the defendant's constitutional rights and we affirm.

The critical facts are not substantially disputed. On the occasion in question, the Texas Department of Public Safety had assigned Officers Jones and Mullens to work as a two-man, one-car team patrolling a stretch of highway in that state. At about 1:45 a. m. on a Christmas Eve morning, they observed the defendant Ragsdale operating a motor vehicle on a highway within the city limits of Houston, Texas at a speed estimated to be 90 miles per hour in a 55 mile per hour speed zone. On a flashing light signal from the patrol car, Ragsdale stopped his vehicle on the highway and the patrol car pulled up behind it. Both patrolmen got out of their vehicle and approached Ragsdale, who remained seated in his stopped car. Officer Jones, the lead officer on this occasion, asked Ragsdale to exhibit his driver's license. After erratic answers to preliminary questioning and observation of the bloodshot appearance of Ragsdale's eyes had aroused suspicion in Officer Jones' mind that Ragsdale might have been driving under the influence of alcohol or drugs, Jones requested Ragsdale to return with him to the patrol car for the purpose of preparing a speeding ticket. As Ragsdale got out of his automobile, Jones, who was standing nearby, saw the handle, hammer and a part of the cylinder of a pistol protruding from a paper sack on the floor board of Ragsdale's car near the front edge of the driver's seat. Officer Mullens, who was standing further toward the rear of Ragsdale's car, could not see the gun at that time. As Jones walked with Ragsdale past Mullens on the way to the patrol car, he whispered to Mullens that "there was a gun under the front seat and I Jones was going to search Ragsdale." Jones' search of Ragsdale's person at the patrol car produced no weapon. Shortly after Ragsdale had been seated in the patrol car and Jones began the ticketing procedure, Mullens left these two men, went to Ragsdale's car, opened the door, and immediately saw a gun under the driver's seat. He then began a search of the remainder of the passenger area, which disclosed two more pistols and a quantity of money.

A preliminary motion to suppress this money was denied, and during the bank robbery trial proper the monies were introduced in evidence over Ragsdale's objection. At the hearing on the motion to suppress, Ragsdale and Officer Jones described the search of the vehicle on the highway. At the trial Officers Jones and Mullens both testified about this search, while Ragsdale did not take the stand.

The validity of the search, which up to now might appear justified on the basis of Jones' "plain view" of a weapon prohibited by Texas law,¹ is put in doubt because of Officer Mullens' own description of what motivated him to conduct the search. At no point did Mullens ever acknowledge that he heard Jones' whispered statement about seeing the gun in Ragsdale's car² or assert a reliance on Jones' actions toward Ragsdale. The crux of the matter is best demonstrated by quoting the following excerpt from the cross-examination of Mullens by Ragsdale (who was then representing himself):

Q Mr. Mullens, why did you have reason to look for the pistols?

A In order that I would know that you didn\'t have a pistol of any kind that would be within your reach after you were allowed to return to your car.

Q When did you make this decision to go and search the car?

A After listening to the manner in which you —

Q No, no, no. When, not why?

A I said after a certain point of time, after I had heard you talking. Mullens had previously testified on direct examination that he observed Ragsdale to be "blurryeyed" and acting "erratic and strange."

Q In relation to minutes, what, five ten minutes, three, fifteen, twenty minutes?

A After we were in the patrol car together. It was about three minutes.

Q You returned to the defendant\'s car to search as a safety precautionary search?

A Yes; yes, sir.

Q In order that when he returned to his automobile and might be mad at you, he wouldn\'t be able to get a pistol and shoot you or something?

A That or otherwise, yes, sir.

Q That is the way it goes. Was there any other reason?

A None that I knew of.

Although it may be possible to conclude that the whisper by Jones was heard by Mullens and that this information encouraged the search, the whole of his testimony renders this conclusion so tenuous as to make it wholly improbable. We therefore do not base our holding in anywise on the supposition that Mullens may have heard Jones' whisper. Mullens further testified that he opened the door of Ragsdale's car and began his search prior to the time he saw any gun. So Mullens individually had neither "reliable informant" nor "plain view" cause to make the search. The mere fact that Mullens had knowledge of the speeding offense by Ragsdale would not, considered in isolation, support any right to search his vehicle. United States v. Adams, 424 F.2d 175 (5th Cir. 1970); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968). See also Comment: Search Incident to Arrest and the Automobile, 43 Miss.L.J. 196 (1972). Thus, this search was not authorized as incident to the ticketing for speeding.

The Fourth Amendment does not forbid all, but only unreasonable searches. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). With this easily stated truism, the difficulties of specific application to the case at bar begin.

The resolution of search and seizure questions by lower courts (and by law enforcement officials) has been fraught with difficulty because precedents from the High Court are, with deference, ofttimes difficult to reconcile. Over the 183 years since the adoption of the Bill of Rights, the Court's decisions have, in the words of one of the Justices, been "unexplained and inexplicable."³ The sparse words of the Fourth Amendment have produced a veritable sea of interpretative language. Some guide lights remain constant but other markers have moved with varying currents of reason. The most notable ebb and flow of precedents came in the area which alternately raised or submerged a separation of the Amendment's two basic clauses — the first, which proclaims a protection against unreasonableness in searches and seizures; and the second, which prevents the issuance of search warrants except upon a particularized showing of probable cause.⁴ As we sight the beacons which guide today's legal navigation, they appear to favor a blending of the separate clauses by characterizing all warrantless searches as inherently unreasonable unless they fall within narrowly defined exceptions. The one of these exceptions which is pertinent to the facts of this case required probable cause to be coupled with exigent circumstances — meaning the existence of conditions which imperatively demand that the search proceed lest the delay necessary to obtain the magistrate's intervention present an immediate danger to the officer or permit the evanescent evidence of crime to be concealed or destroyed.

Furthermore, we are taught that automobile searches are to be distinguished from searches of buildings or other immovable places for analytical purposes, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The validity of such vehicle searches have never lent themselves to simple, sure, "litmus-paper" tests. United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The central requirement in each particular case is to examine the totality of the circumstances in the light of established Fourth Amendment principles, Chimel v. Calif., 395 U.S. 752, 765, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969), to determine if the rights which those principles embody have been violated and if the rigor of the exclusionary rule demands that "the criminal is to go free because the constable has blundered."⁵

The validity of this warrantless automobile search is thus subject to the two conditions precedent: exigent circumstances and probable cause — neither of which can be supplied by anything which the search turns up. In a case such as the one at bar, where an automobile has been temporarily stopped on a highway and is subject to prompt removal by its owner, it has been held that exigent circumstances inhere as a matter of law. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). If probable cause to search also existed, then a search warrant was not requisite to the constitutional validity. The reason which supports this rule is that there is no meaningful difference between seizing and holding the car...