United States v. White

• Decision Date: 13 December 1973
• Docket Number: No. 73-1301.,73-1301.
• Citation: 488 F.2d 563
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Barthell WHITE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.2d 563 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Barthell WHITE, Defendant-Appellee.

No. 73-1301.

United States Court of Appeals, Sixth Circuit.

Argued October 2, 1973.

Decided December 13, 1973.

Kenneth J. Haber, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellant; Ralph B. Guy, Jr., U.S. Atty., Detroit, Mich., on brief.

William D. Haynes, Detroit, Mich., for defendant-appellee.

Before McCREE, and MILLER, Circuit Judges, and KRUPANSKY,^* District Judge.

PER CURIAM.

Plaintiff-appellant has appealed from an order of the district court granting defendant-appellee's motion to suppress nine counterfeit notes seized from the glove compartment of his automobile. The district court held there was no justification for the Government's failure to obtain a warrant to search his automobile.

In substance the facts as stipulated reflect that officers, alerted by a cashier in a K-Mart store, arrested Barthell White and charged him with possession of counterfeit notes. Upon searching the defendant, the officers found and seized a counterfeit note in addition to a note which had been given to the cashier, and keys to an Oldsmobile automobile.

Questioned by a U.S. Secret Service agent, the defendant recited two versions as to how he arrived at the K-Mart shopping center, stating first that a friend drove him there and secondly, that his wife drove him to the store. During the interrogation, a woman called the police station, identified herself as defendant's wife, and inquired as to the whereabouts of the family automobile.

The police thereafter located a 1971 Oldsmobile automobile with license plates registered to the defendant in the K-Mart parking lot. The Secret Service agent entered the automobile and opened the glove compartment, the Government contends, to ascertain whether this was in fact the defendant's vehicle. The agent found additional counterfeit notes and seized both the automobile and the notes.

The Government contends that the vehicle was lawfully seized pursuant to 49 U.S.C. § 781 et seq. as an instrumentality of a crime, and that the agent seizing the automobile was attempting only to identify its ownership rather than looking for contraband, thereby acting reasonably under the Fourth Amendment in seizing the notes.

In view of the defendant's evasiveness in responding to questions advanced by the officers concerning his method of travel to the K-Mart and the call from his wife inquiring about the automobile, the Court is of the opinion that the officers had reasonable ground to believe the automobile had been used to transport contraband, if only the two counterfeit notes which were taken from the person of the defendant immediately after his arrest; consequently, the officers had probable cause to seize the automobile as the instrumentality of a crime pursuant to 49 U.S.C. §§ 781(a), (b)(3), and 782. Carroll v. United States, 267 U.S. 132, 160-162, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Stout, 434 F.2d 1264 (10th Cir.1970); United States v. Francolino, 367 F.2d 1013, 1018-1023 (2nd Cir.1966), cert. denied, 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110 (1967); Sirimarco v. United States, 315 F.2d 699, 701 (10th Cir.1963), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963).

Existing authority supports the legal proposition that probable cause alone, without a warrant, is sufficient to justify the seizure of the automobile here in issue pursuant to 49 U.S.C. §§ 782 and 783. In Sirimarco v. United States, supra, the Court of Appeals for the Tenth Circuit upheld the warrantless seizure of defendant's automobile and subsequent search thereof, where the federal officer had probable cause to believe that the automobile had been used in the transportation of counterfeit notes. The Court held in part:

The existence of probable cause alone is not justification for a search without warrant.... But the existence of probable cause is justification for the seizure of a vehicle which has been used to transport or facilitate the transportation or possession of contraband so designated by statute. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.

* * * * * *

We have no doubt that a vehicle which has been lawfully seized pursuant to the mandate of sec. 783 may be searched without a warrant or consent of possessor or owner and that evidence so discovered may be properly admitted in prosecutions charged under 18 U.S.C.A. § 472. (citations ommitted) 315 F.2d at 701.

Equally applicable to the instant case are the pronouncements of the Third Circuit Court of Appeals in United States v. Troiano, 365 F.2d 416, 418-419 (3rd Cir.1966), cert. denied, 385 U.S. 958, 87 S.Ct. 396, 17 L.Ed.2d 303 (1966), which involved the warrantless seizure of counterfeit postage stamps and the automobile containing them:

Both the stamps and the car containing them were contraband, subject as such to seizure without warrant and over the possessor\'s objection....

* * * * * *

True, such seizure must be supported by probable cause to believe the vehicle contains contraband....

In these circumstances, Troiano\'s delivery of the car keys with consent to the opening of the trunk and an examination of its contents simplified the agents\' task but was not essential to their right to seize the car and stamps without a search warrant.... (citations and footnotes omitted). (emphasis added).

The Court in Troiano followed the decision in Sirimarco, supra, and approved an agent's authority to seize a vehicle including the contraband found therein without a search warrant if probable cause existed to believe the vehicle contained contraband. See also, United States v. Young, 456 F.2d 872, 875 (8th Cir.1972); United States v. Stout, supra, 434 F.2d at 1267.

In view of the foregoing, we conclude that the initial seizure of the automobile without a warrant when such seizure is supported by probable cause is valid under law.

The subsequent search of the automobile and seizure of counterfeit bills from the glove compartment therein come within the pronouncements of the United States...