Wright, Tamm and Wilkey, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing and Suggestion for Rehearing En Banc Denied October 8, 1971.
On Rehearing: Bazelon, Chief Judge, Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges, en banc. J. Skelly Wright, Circuit Judge (dissenting).
Appellant was convicted of grand larceny *fn1 of a Chevrolet Corvette transmission, found by police in appellant's garage immediately before and at the time of his arrest. After an evidentiary hearing, appellant's pretrial motion to suppress the transmission as evidence because of a violation of the Fourth Amendment by an alleged illegal search and seizure was denied. The sole issue on this appeal is the legality of the seizure in appellant's garage of the stolen transmission and its introduction in evidence. We affirm. I. Facts Relevant to the Issue Presented
All the events took place on 18 May 1968, beginning at 5:00 a.m. when the police were notified that a 1967 Chevrolet Corvette had been stolen. By 4:20 p.m. Police Officers Huffstutler and Howard had located the Corvette, stripped of its transmission, engine, radiator, hood and steering wheel. From various pieces of evidence in and around the car Officer Huffstutler concluded that the Corvette had been stripped elsewhere, and by an examination of the terrain deduced the probable locale of the stripping within a three-block area. In a systematic survey of all streets and alleys they observed tell-tale sweepings of nuts and bolts in front of a three-car garage, and in addition several red rags of the type previously noted on the stripped Corvette. A comparison of the rags found at the two locations showed they were identical. The officers returned to the garage.
The three sliding doors of the garage were not completely closed because of their construction and age, leaving an opening of approximately eight or nine inches. Inside it was "relatively dark," so the officer employed his flashlight to look in through the gap. Lying ten feet away he noticed a transmission shaft. On his knees for a better view, he identified it as a Chevrolet product, and observed that the speedometer cable had been clipped. After returning to the stripped Corvette, a check of its speedometer cable showed it, too, had been clipped.
On notifying the Auto Squad of his discoveries, Officer Huffstutler was advised to go to the garage and recover the stolen transmission. Instead, he returned to his precinct and began to type an application for a search warrant. On reflection, he decided it was better then to return to the garage, interview its owner, and set in motion the procedure to take fingerprints from the Corvette. *fn2
On arrival at the garage Officer Huffstutler and his partner noted an automobile with its trunk open, parked so the trunk could be loaded from a little alleyway which led to the side door of the garage. Inside the open trunk were a steering wheel, clutch plate, and pressure plate, all 1967 Corvette equipment, and each of which corresponded to items stripped from the stolen car. With guns drawn the officers moved toward the open side door of the garage, and as they did appellant Wright and two others emerged. The three were arrested for possession of stolen property. Leaving them in custody, Officer Huffstutler entered the open door of the garage and located the Corvette transmission which had been moved to another place inside.
On the basis of these operative facts appellant contended in the trial court and here alleges that two searches and the resulting seizure were illegal; the first alleged illegal search being when Officer Huffstutler, with his vision aided by the flashlight, peered through the opening between the garage doors; the second being when he walked in through the open door to pick up the stolen automobile transmission, which he had first seen in the garage less than two hours before. II. Legality of the Officer's First Look
Appellant contends strenuously that his rights under the Fourth Amendment *fn3 were violated not once but twice by illegal search of the garage. He argues that the officer's action in peering through the eight or nine-inch crack was a search, particularly since it was aided by artificial light; that such search was illegal; that this illegal search tainted the seizure thereafter of the auto transmission at the time of the arrest. As in Dorsey v. United States, *fn4 "the Government argues there can be no question of an illegal search since there was no search at all."
There was no search here. There are at least two doctrines or perhaps two different characterizations of the same doctrine, which we have enunciated in previous decisions on which the officer's conduct was legally justified. For convenience they might be termed the "challenging situation" and "plain view" doctrines.
A. A closer look at a challenging situation.
In Dorsey (supra) two officers approached a parked car occupied by two recognized, known narcotics violators. Although it was 11:00 p.m. the officers could see the driver and the passenger were turned facing each other as though examining something on the seat. The officer on the driver's side directed his flashlight into the car and illuminated in Dorsey's hand a cellophane bag filled with white-powdered, gelatin capsules. When Dorsey placed the bag on the ledge of the glove compartment, the other officer reached through the open window, seized the bag, and placed Dorsey under arrest. As the driver complained of the officer flashing his light inside the car, the officer noticed that the driver was dropping heroin capsules on the floor. He, too, was arrested and nine heroin capsules were picked up off the floor.
Without either characterizing the officer's action as a search or attempting to justify it as a search, we held that
The essential inquiry, as is customarily the case in Fourth Amendment claims, is the reasonableness of the police conduct under the circumstances. * * Reasonableness involves consideration of the nature of the police conduct as well as the occasion of its exercise. We think the evidence supported a view of that conduct as not transgressing the constitutional standard.
. . . When the officers suddenly saw [the appellants] situated as they were at the time and place in question, the former were entitled to extend their preventive patrolling mission to the extent of approaching the car and observing what was going on inside. . . . We do not think the need to employ a visual aid at night in the form of a flashlight converts this from lawful into unlawful conduct. A car parked at 14th and U Streets at eleven o'clock at night, occupied by known narcotics offenders, bears little resemblance to a home or dwelling. If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them. All we hold here is that this was one of those situations, and that the police response to it was a justifiable one which did not project their law enforcement responsibilities beyond permissible constitutional limits. *fn5
We think the facts and holding in Dorsey (supra) are comparable and decisive of appellant's contentions in regard to his first alleged illegal search. *fn6
James v. United States *fn7 is equally dispositive of appellant's first claim and is closer on the operative facts. In James a police officer observed a partially stripped-down new Pontiac, and three days later observed that the stripping job had been completed. When he saw the new Pontiac the second time, completely stripped, the police officer entered the premises to investigate further, and in so doing secured the license number from the rear tag, the front license plate being missing.
On a pre-trial motion to suppress the District Court did exclude the rear license plate and the owner's manual found through the officer's entry on the unoccupied garage premises, but appellant also contended that all the stolen property discovered pursuant to a later issued search warrant should be suppressed, because this was the fruit of illegal observations by the officer from outside the garage which preceded his entry on the premises, and those observations violated his Fourth Amendment rights. The garage door was ajar and the officer was able to look under and observe parts and tools thrown about. In James we held that
The police are free to observe circumstances in evidence that are in "plain view" to the public . . . the plain view doctrine was reaffirmed in Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). That the policeman may have to crane his neck, or bend over, or squat, does not render the doctrine inapplicable, so long as what he saw would have been visible to any curious passerby. *fn8
Quite contrary to what the dissent argues, in James on appeal before this court there was no issue whatsoever as to the evidence (license number and owner's manual) already suppressed by the District Court. The issue on appeal concerned the validity of the warrant and the search made pursuant thereto, because "when an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue." *fn9 In James we held that the officer's observations, described above, "prior to his illegal entry, established probable cause for issuance of the warrant." *fn10 In James the two items of evidence, held illegally seized by the trial court, were never in the officer's plain view and were never argued on appeal to be admissible, the only question was did their seizure prior to the warrant taint the probable cause behind the warrant; hence, this court never decided any difference as to admissibility, "crucial" or otherwise, between the items legally and illegally seized. This court affirmed the legality of the officer's viewing from outside the garage as the basis for a warrant. The parallel between James and this case is that the officer's viewing was held legal, and here the officer saw much more than in James, i. e., the stolen transmission which he could positively identify as stolen, before he entered the garage. The legality of his entry and seizure without a warrant was thus justified under the plain view doctrine, while in James what the officer saw (no stolen property positively identified) was held to justify a warrant. In both cases it was the legality of the view from outside the garage to justify the officer's subsequent action which was put in issue.
We had occasion to discuss the "plain view" doctrine at some length in United States v. Thweatt. *fn11 There we reaffirmed out previous holding in Creighton v. United States, *fn12 where we stated, "We have long since pointed out that mere observation does not constitute a search, as where the officer has good reason to believe that the fruits of crime are freely exposed on the suspect's property." *fn13
Although the Supreme Court last Term in Chimel v. California *fn14 overruled its broader holdings on search and seizure, the Court made it evident that the "plain view" doctrine was not abrogated. In our en banc decision in Dorman v. United States *fn15 and in United States v. Harris, *fn16 we applied the "plain view" doctrine subsequent to the Supreme Court decision in Chimel v. California. *fn17 Before Chimel the Supreme Court had affirmed our en banc decision in Harris v. United States, *fn18 and in so doing the Supreme Court said:
It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S.
Whether it be considered that the transmission was in "plain view" to start with, or whether the officer took "a closer look at a challenging situation," we conclude that no rights of appellant protected by the Fourth Amendment were violated by Officer Huffstutler peering through the gap between the garage doors. III. Legality of the Seizure of the Transmission in the Garage
Appellant contends with equal vigor that the seizure of the auto transmission was illegal as being the product of an illegal search either if the entry of Officer Huffstutler into the garage is considered independently, or if his entry is considered as the product of his previously illegal search by peering through the gap in the garage doors. Appellant claims there could be no valid search incident to arrest, citing Chimel, supra and Vale v. Louisiana. *fn20
Without making an elaborate comparison with Chimel or at this point with Vale, but noting that both those cases involved a dwelling where the protection of the Fourth Amendment is reasonably more extensive than in an open field, auto or a garage, we think that the action of the police officer can be ...