United States v. Williams, 26792.

• Decision Date: 15 December 1970
• Docket Number: No. 26792.,26792.
• Citation: 434 F.2d 681
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 681 (1970)

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

No. 26792.

United States Court of Appeals, Fifth Circuit.

November 9, 1970.

Rehearing Denied December 15, 1970.

Robert A. White, Roy Nolen, Houston, Tex. (Ct. Apptd.), for appellant.

Ronald J. Blask, James R. Gough, Asst. U. S. Attys., Morton L. Susman, U. S. Atty., Joel P. Kay, Asst. U. S. Atty., Houston, Tex., for appellee.

Before JOHN R. BROWN, Chief Judge, GODBOLD, Circuit Judge, and CABOT, District Judge.

CABOT, District Judge:

This is an appeal by the appellant, James Williams, from his conviction of transporting a stolen motor vehicle in interstate commerce from California to Texas, knowing the same to have been stolen, all in violation of 18 U.S.C. § 2312, the Dyer Act.

The facts indicate that appellant was originally indicted in the Laredo Division of the Southern District of Texas under an assumed name for violation of the above statute. His appointed counsel moved to suppress evidence taken pursuant to an alleged unlawful search and seizure. After a hearing on the motion, but prior to the lower court's decision, the case was transferred to the Houston Division of the Southern District of Texas, and then, when it was later discovered that the appellant's real name was James Williams, he was re-indicted. That court then issued an order on the motion to suppress which relied on the transcript of testimony taken at the prior hearing. Since the issue before this court concerns the propriety of the lower court's order on the motion to suppress, reference to testimony taken at the hearing on the motion is necessary. The testimony revealed that appellant and two others were seen by a customs agent driving back and forth across the border from Mexico over a period of time in the subject car, a 1967 yellow Chevrolet Camaro. Since they looked suspicious the customs agent took the license number of the vehicle, which when checked was found to belong not to a 1967 Chevrolet, but rather to a 1953 Ford. By that time the car was already past the border point and the customs agent requested the Laredo police department to be on the lookout for the car and to keep him posted of its whereabouts. Subsequent to this, information was given to the Laredo police that the appellant and others seen with him in this car were attempting to sell typewriters door-to-door in the city. Thus a "lookout" was sent over the airways to the police officers who were instructed not to stop the vehicle inasmuch as there was no cause, but rather to keep it under surveillance. Soon thereafter the arresting officer in this case noticed the vehicle and followed it for about ten or eleven blocks until it took a right turn without giving a proper signal, whereupon the vehicle was signaled over and the driver, the defendant herein, was arrested for violation of the traffic laws. The officer testified at the hearing on the motion to suppress that his sole purpose in following the vehicle was to wait until the driver violated a traffic ordinance so he would have reason for arresting him. The appellant, a non-resident, was taken to the Laredo police department, ostensibly to post a bond for the traffic charge. However, once there he was interrogated and was told to place the contents of his pockets on a table. In his pocket was a key to a locker at a Greyhound bus station. The police took the key and emptied the contents of the bus station locker, bringing them back to the police station. There they discovered a certificate of title from California for the vehicle, as well as some drivers' licenses. Since the automobile had a Texas license plate, and since it was known that the plate belonged to a 1953 Ford, the police were suspicious that it might be stolen and called the FBI. The agent, who did not testify at the hearing on the motion to suppress, came over to the police station, saw the appellant, saw the vehicle, and apparently, although there is no direct evidence of this, he opened the door of the vehicle in order to record the identification number from a plate therein. He then checked on the number and it was determined that the car was stolen from California.

The lower court concluded that the arrest was in fact a subterfuge based as it was upon the minor traffic violation, and suppressed the documents produced from the search of the defendant, his clothing, and his luggage. The court, however, did not suppress the identification of the vehicle.

In its memorandum order appealed from, the court concluded that the agent in obtaining the identification number did not conduct a search. The court stated:

The identification of a vehicle is not a search thereof and the law does not so protect it. I consider this little more than looking at the license number. While it may be a mere play on words, if this be considered a "search" of the vehicle, it was not an unreasonable one and did not violate any right of the defendant.

At the trial of this case, two witnesses from California testified that the vehicle was stolen. One witness from Laredo testified that the license plate of the vehicle, which belonged to a 1953 Ford was from his car, which he had abandoned at the end of a dead end street in Laredo. The defendant's niece then testified at length and gave quite...