United States v. Williams

• Decision Date: 09 December 1975
• Docket Number: No. 75-1347.,75-1347.
• Citation: 526 F.2d 1000
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.2d 1000

UNITED STATES of America, Plaintiff-Appellee, v. Anthony WILLIAMS, Defendant-Appellant.

No. 75-1347.

United States Court of Appeals, Sixth Circuit.

Argued September 30, 1975.

Decided December 9, 1975.

John C. Turin, Van Gunten, Turin & Co., Sylvania, Ohio (court-appointed), for defendant-appellant.

Frederick M. Coleman, U.S. Atty., James Dean Jensen, Toledo, Ohio, for plaintiff-appellee.

Before McCREE, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This appeal from a jury conviction of willfully and knowingly possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d) raises three issues. The district court overruled, after conducting a hearing thereon, the defendant's motion to suppress evidence obtained in a warrantless search of an automobile he was operating at the time of his arrest. Defendant contends that there was no probable cause for his arrest and that the ensuing search of the vehicle violated his Fourth Amendment rights.

The record discloses that about one hour before he made the arrest, an officer of the Ohio Highway Patrol received a radio dispatch describing in detail an automobile which was believed to have been involved in a possible kidnapping in Ft. Wayne, Indiana. Upon seeing an automobile which matched in every detail the description of the vehicle referred to in the dispatch, the officer began following the car. While following one or two car lengths behind the suspected vehicle, the officer saw the driver and male passenger in the front seat lean and reach toward the floor several times. After the automobile was clocked at 50 miles per hour in a 35 m.p.h. zone, it was stopped by the following officer in Maumee, Ohio, and he was immediately joined by another state patrolman and one or more Maumee policemen.

Though defendant was told he was under arrest for speeding, he was immediately "patted down," handcuffed and placed in the front seat of one of the state patrol cars. The defendant stated, according to the officer, that he had come from Ft. Wayne, Indiana. The arresting officer testified that the traffic arrest was incidental, that he also arrested defendant for possible kidnapping and if there had been no traffic violation he would have stopped the car on the basis of the radio dispatch. Upon first approaching the stopped vehicle the officer noticed a shotgun shell in a trash receptacle inside the car. The arresting officer further testified that shortly after the defendant and the front-seat passenger got out of the car a woman emerged from the back seat and said she had been abducted at gunpoint in Ft. Wayne. Immediately thereafter this officer searched the automobile, seizing the shotgun shell which he had previously seen and a loaded sawed-off shotgun which was concealed under the front seat on the driver's side. The initials "AW" were on the gun.

There was no one in the automobile when it was searched and no one consented to the search. The search took place in the early afternoon while the automobile was stopped in a driving lane of U.S. Highway 24. There was no "berm" at this location, and all the activity took place on the main traveled portion of the highway.

The automobile was stopped, according to the officer, because he verified by personal observation the detailed description he had received of a vehicle suspected of being used in commission of a kidnapping. Under these circumstances he had probable cause to make the arrest. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Defendant views his arrest as being for a traffic violation only and argues that United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), authorize a search of a person, not of the vehicle following such an arrest. This ignores the abundant evidence connecting the automobile with a recent kidnapping. Probable cause to search the vehicle existed in view of the verification of details of the radio dispatch, the activity of the defendant and his male companion in reaching toward the floor, the sighting of a shotgun shell in plain view and the statement of the woman passenger. The only issue is whether the officer should have obtained a warrant before conducting the search.

Defendant argues that the contents of the car posed no danger to the officer since he (the defendant) was handcuffed and out of reach of the vehicle. He relies upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for the proposition that a search incident to an arrest may be made without a warrant only to protect officers and to prevent the destruction of evidence, and is limited to the area immediately surrounding a suspect. Of course, the search in Chimel took place in the suspect's home, not on a busy highway. The search of an automobile which an officer has reasonable grounds to believe has been used in the commission of a felony is subject to a different test. The case before us presented a situation where, ". . . if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search." Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). As the Court stated, "For constitutional purposes . . ." if probable cause to search the vehicle exists, it makes no difference which course is followed. Id. at 52, 90 S.Ct. 1975. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), where the warrantless search of an automobile parked in the driveway of a residence was held to violate the Fourth Amendment is distinguishable. Many of the facts in the present case parallel those in United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 824 (1975), where the search of a vehicle without a warrant was upheld. The district court properly denied defendant's motion to suppress.

The second issue on appeal relates to "incriminating statements allegedly made by Williams, the appellant, to Patrolman Geisel during the `booking' procedures subsequent to Williams' being apprised of his right to remain silent." (Appellant's Brief, p. 31). The district court held a separate hearing on defendant's motion to exclude testimony of the "incriminating statements." The defendant testified at the hearing that he was advised of his rights as he was being handcuffed at the scene of the arrest and again at the police station. He testified that he had been advised of his rights many times and understood them....