decided: August 19, 1981; As Amended August 27, 1981.
ON APPEAL FROM THE DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS (Crim. No. 80-00092)
Before Adams, Weis and Garth, Circuit Judges.
This is an appeal from an order of the District Court of the Virgin Islands suppressing evidence which the police found in a car driven by the defendant, Hiram Rasool Abiff ("Abiff"). In particular, the district court's order suppressed as evidence a revolver which was in a brown paper grocery bag found on the back seat of the vehicle.
On June 18, 1980, Abiff was charged by information with assisting an escaped prisoner in violation of 14 V.I.C. §§ 661(1) and 12; possessing and carrying a revolver in violation of 14 V.I.C. § 2253(a); and possessing stolen property (the revolver) in violation of 14 V.I.C. § 2101(a). Abiff filed a motion to suppress the revolver, claiming that it was the product of an unconstitutional search and seizure. After conducting a hearing to determine the admissibility of the revolver the court concluded that the seizure of the revolver could not be justified on the basis of a search incident to an arrest or a warrantless search of a motor vehicle based on probable cause and exigent circumstances. Thus, the court suppressed the evidence. We reverse.*fn1
On the night of May 29, 1980, Police Officer Barbara Heyliger, while on her way to work, observed a red Honda Civic automobile that was the subject of a police watch bulletin. She noted that the car was driven by a male and that another individual was occupying the front passenger seat. Heyliger also claimed that Stafford Todman was seated in the rear of the vehicle. Todman was wanted for escaping from prison while awaiting trial for attempted murder and was known to be armed and dangerous. Upon arriving at Police Headquarters, Heyliger reported that she had seen Todman and detailed the description and location of the car in which he was observed. The desk officer broadcast the vehicle's description and license number to all units, and dispatched police to the vicinity where Heyliger spotted the car. When the police arrived at the stated location, they were unable to locate the vehicle described in the dispatch.
Later that evening, two police officers located the Honda vehicle parked at the side of a dirt road behind the Wheatley Shopping Center. Officer Allen and another officer drove to the site, and left their vehicle as other police units proceeded toward the area. The two officers approached the Honda from the rear, and noticed that only two persons were inside the car. They asked both occupants to leave the car.
Officer Allen testified that the individual sitting in the front passenger seat was a female. He stated that it was only after both occupants had left the Honda that he was able to observe the male driver, whom he assumed was Todman. Allen then requested the female to move away from the car door so that he could search the vehicle in order to see whether anybody else was in it. While removing his flashlight, he took another step toward the car and began to smell the heavy scent of gun-cleaning solvent and gun powder. He then directed his flashlight on the floor of the passenger side, where he found a pan, rags, gun barrel cleaning brushes, and pistol ammunition. He reached in the vehicle, removed the pan and handed it to another officer. At some point prior to removing the pan, Allen overheard another officer saying that the man who had been in the car was not Todman.
Allen proceeded to look underneath the passenger seat to see if there was anything else under it. He spotted a red and white plastic bag that was protruding from under the driver's side, but did not pick it up since it was on the other side of the vehicle. As he pulled his head out of the vehicle, he noticed a brown paper shopping bag on the back seat directly behind the driver's seat. Allen then began to search for the lever to fold the passenger seat over so that he could gain access to the paper bag. At this point, the driver, who had come over to the passenger side of the vehicle, placed his hand on Allen's shoulder, protesting the search. According to Allen, Abiff was using abusive language and stated that he was a farmer selling fruit in the market, that there was nothing of interest in the back seat of the car and that Allen would need a search warrant to continue searching. Allen shoved Abiff away from him and ordered that he be handcuffed. At that point, Allen informed Abiff that he was already under arrest for harboring an escaped felon. Abiff, after being handcuffed, remained in the vicinity of Allen, although Allen did not know his exact position at that time. Allen then located the lever and the passenger seat fell forward. He then seized the grocery bag, emptied its contents, and discovered some clothing and the revolver.
Allen also testified that at first, he checked the vehicle to make sure that no one was hiding in it and, since he initially assumed that they had apprehended Todman, he was also searching for a gun. As a result of the discovery of the pistol, he placed Abiff under arrest for possessing and carrying an unlicensed firearm. The female passenger was removed from the scene by detectives, but apparently she was not arrested. Later, when the Honda was taken to the police station, the police discovered in the car shotgun shells, pistol ammunition, a ski mask, and some stolen property.
Based on the foregoing evidence, the district court concluded that the revolver should be suppressed. The court remarked that because Abiff had been handcuffed and moved away from the car, seizure of the pistol could not be justified on the basis of a search incident to an arrest. The court also concluded that the government's reliance on the warrantless automobile search exception must also fail due to a lack of exigent circumstances. This appeal by the government followed.
As a preliminary matter, we must address two questions never resolved by the district court: whether the police had probable cause to arrest Abiff; and whether the police had probable cause to search the vehicle as distinct from any container found within the vehicle. Although the court did not deal with either of these questions directly, it observed in a footnote:
The Court questions whether Allen ever had the right to conduct a search of the vehicle. However, the Court will refrain from addressing the issue because it is superfluous to this opinion.
District Court Memorandum, App. at 188 n.2.
Normally we would remand to the district court for its initial ruling of probable cause regarding both the search of the vehicle and Abiff's arrest, but we believe that the record in the instant case is sufficient for this determination to be made by this Court. See United States v. Belle, 593 F.2d 487, 497 (3d Cir.) (en banc), cert. denied, 442 U.S. 911, 99 S. Ct. 2825, 61 L. Ed. 2d 277 (1979).
The district court judge did not make findings as to the probable cause to arrest Abiff. His opinion deals solely with a search incident to an arrest, and concludes that the search was unconstitutional because "once Abiff was handcuffed and no longer in close proximity to the vehicle, the justification for the search ceased." Opinion of the District Court, App. at 188. Thus, the district court apparently assumed that a valid arrest had been made.
Although the record is confused as to the circumstances of Abiff's arrest we are satisfied that probable cause existed for Officer Allen to arrest Abiff, and that he did so, prior to the search of the Honda during which the revolver was found. Allen's arrest report, which is in evidence, and his testimony at the hearing, reveal that Allen had been a member of one of the police units which had been looking for the red Honda in which Stafford Todman had been seen. Upon locating the Honda, Allen initially thought that the male occupant was Todman. He testified, however, that within a short time he overheard another officer say that Todman was not one of the car's occupants.
Allen, who had required the occupants of the vehicle to leave the car and place their hands on the roof of the Honda, then testified that he smelled gun powder and gun cleaning solution. When he looked into the car, he saw gun cleaning brushes, a pan and rags. At this point, having seen a grocery bag on the back seat of the Honda, Allen sought to remove the bag. Abiff intercepted him then, saying: "Do not go in my car, there's nothing back there ... I'm a farmer, I sell fruits in the market."
Allen's arrest report indicates that Allen then advised him that he was already under arrest for rescuing an escaped felon, a charge which Allen claims Abiff did not deny. Allen claims that Detective Christian, who had also arrived on the scene, had already advised Abiff of his rights.*fn2 Abiff, who continued protesting and even attempted to push Allen away from the car, was then handcuffed on Allen's orders. It was then that Allen overturned the grocery bag. The revolver thereupon fell out.
The testimony, disclosing these actions, is somewhat confused. Allen was of the impression that Christian had arrested Abiff prior to the time that Allen had handcuffed Abiff. Christian, however, denied arresting Abiff, stating that Allen had placed him under arrest. Whether Abiff's arrest came about through a collective effort, or through an erroneous impression which Allen had received, is immaterial. We are satisfied that whatever the reason, the circumstances which we have recounted gave Allen sufficient probable cause to arrest Abiff, and he did so prior to the discovery of the revolver.
These same circumstances suffice, in our opinion, to justify the search of the automobile, even without a valid arrest. The "automobile exception" to the warrant requirement permits the police to search an automobile without a warrant when the police have probable cause to believe that the vehicle contains contraband or evidence of a crime, and when circumstances are such that it is impractical to obtain a warrant. See, e. g., Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The fact that a defendant may have been handcuffed and removed from the immediate area prior to ...