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    United States v. Dana Bruce Simpson, 453 F.2d 1028, 10th Cir. (1972)

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    Simpson was convicted of possessing another person's selective service documents. He appealed the conviction, arguing that the evidence against him was obtained through an illegal search and seizure. The majority opinion upheld the conviction. It found that the arrest warrant for Simpson was valid as it was based on information from informants that was corroborated by an officer finding dynamite where said. It also found that the search of Simpson's wallet incident to his arrest was reasonable as it could contain weapons or evidence. The dissenting judge disagreed with the majority's conclusions.

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    United States v. Dana Bruce Simpson, 453 F.2d 1028, 10th Cir. (1972)

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    Simpson was convicted of possessing another person's selective service documents. He appealed the conviction, arguing that the evidence against him was obtained through an illegal search and seizure. The majority opinion upheld the conviction. It found that the arrest warrant for Simpson was valid as it was based on information from informants that was corroborated by an officer finding dynamite where said. It also found that the search of Simpson's wallet incident to his arrest was reasonable as it could contain weapons or evidence. The dissenting judge disagreed with the majority's conclusions.

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    Filed: 1972-02-10 Precedential Status: Precedential Citations: 453 F.2d 1028 Docket: 71-1206

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    Simpson was convicted of possessing another person's selective service documents. He appealed the conviction, arguing that the evidence against him was obtained through an illegal search and seizure. The majority opinion upheld the conviction. It found that the arrest warrant for Simpson was valid as it was based on information from informants that was corroborated by an officer finding dynamite where said. It also found that the search of Simpson's wallet incident to his arrest was reasonable as it could contain weapons or evidence. The dissenting judge disagreed with the majority's conclusions.

    Copyright:

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    90 views6 pages

    United States v. Dana Bruce Simpson, 453 F.2d 1028, 10th Cir. (1972)

    Uploaded by

    Scribd Government Docs
    Simpson was convicted of possessing another person's selective service documents. He appealed the conviction, arguing that the evidence against him was obtained through an illegal search and seizure. The majority opinion upheld the conviction. It found that the arrest warrant for Simpson was valid as it was based on information from informants that was corroborated by an officer finding dynamite where said. It also found that the search of Simpson's wallet incident to his arrest was reasonable as it could contain weapons or evidence. The dissenting judge disagreed with the majority's conclusions.

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    of 6

    453 F.

    2d 1028

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    Dana Bruce SIMPSON, Defendant-Appellant.
    No. 71-1206.

    United States Court of Appeals,


    Tenth Circuit.
    Jan. 5, 1972.
    Rehearing Denied Feb. 10, 1972.

    John J. Immel, Asst. U. S. Atty., Wichita, Kan. (Robert J. Roth, U. S.


    Atty., Wichita, Kan., on the brief), for appellee.
    G. G. Alan Vaughan, Denver, Colo., for appellant.
    Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit
    Judges.
    BARRETT, Circuit Judge.

    Simpson was convicted by jury of willfully, knowingly and unlawfully having


    in his possession a Selective Service Certificate and Classification Card issued
    to another for the purpose of establishing identity in violation of 50 App.
    U.S.C. Sec. 462(b) (2). He was sentenced to five years imprisonment.

    On August 20th or 21st, 1970, Simpson met Brian R. Loveless in a parking lot
    in Wichita, Kansas. Simpson asked Loveless for some identification so he
    could obtain reduced airplane rates available to students, in anticipation of a
    flight to California. Loveless loaned him identification which included his
    Selective Service Certificate and Selective Service Classification Card.

    Simpson was arrested on September 2, 1970 pursuant to an arrest warrant


    issued upon an affidavit of Jesse Gragg, Special Agent for the Kansas Bureau
    of Investigation. The warrant charged Simpson with possessing and
    transporting explosives to be used to commit a crime in violation of Kansas

    Statutes Annotated, 1969 Supp., 21-3731 and creating a hazard with explosives
    under K.S.A. 21-4212. At the time of the arrest Hobart Auer, Detective with the
    Sedgwick County Sheriff's Office, searched Simpson. He found a tear gas gun
    in his back trouser pocket. He found $130.00 in his pockets. He also found a
    wallet containing Loveless' Selective Service Certificate and Classification
    Card. Simpson moved to suppress the evidence seized from his wallet as a
    result of an illegal arrest and search. The trial court found the arrest to be legal
    and held that the subsequent search of Simpson's person was incidental to the
    arrest.
    4

    Simpson contends on appeal that: (1) the arrest warrant was not supported by a
    sufficient affidavit; (2) the search of his wallet incident to arrest constitutes an
    unreasonable search and seizure under the Fourth Amendment; and (3) the
    Government did not fulfill its burden of proof following his presentation
    contending that the evidence was tainted.

    Simpson alleges that the affidavit supporting the arrest warrant was not
    sufficient because it was based wholly on hearsay which does not relate
    adequate information to establish the informant's reliability. Simpson contends
    that the search and seizure which followed were illegal because of the illegal
    arrest. The affidavit must reflect the direct personal observations of the affiant,
    or, if based on hearsay, the underlying circumstances must be related to the
    magistrate to establish the reliability of the informant and the fact that a crime
    was committed. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
    L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d
    723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2
    L.Ed.2d 1503 (1958).

    6 testing the sufficiency of probable cause for an officer's action even without a
    "In
    warrant, we have held that he may rely upon information received through an
    informant, rather than upon his direct observations, so long as the informant's
    statement is reasonably corroborated by other matters within the officer's
    knowledge." Jones v. United States, 362 U.S. 257 at 269, 80 S.Ct. 725, at 735, 4
    L.Ed.2d 697 (1960).
    7

    Any affidavit must be tested by the courts in a commonsense fashion and


    technical requirements have no proper place in this area. United States v.
    Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The purpose of
    the affidavit is to allow the magistrate to determine whether probable cause
    exists to support a warrant. Giordenello v. United States, supra.

    The arrest warrant for Simpson was founded on the affidavit of Jesse Gragg,

    Special Agent for the Kansas Bureau of Investigation. Gragg received hearsay
    information from John Savino, Mark Thomas, Mike Miller and Kevin Kness
    that Simpson had dynamite in his possession and had stored it at a particular
    location in Wichita, Kansas. Gragg was told by them that Simpson intended to
    "blow up" the National Guard Armory in Lawrence, Kansas. Gragg went to the
    address he was given and found the dynamite. Subsequently he presented his
    affidavit upon which the arrest warrant was issued.
    9

    The affidavit here was not based wholly on hearsay because the informants'
    reliability was established by Gragg when he found the dynamite where they
    said it was located. Thus, Gragg had personally corroborated the information
    relayed. The affidavit was sufficient standing alone. The magistrate properly
    concluded that there was probable cause for issuance of the arrest warrant.

    10

    Simpson's argument that the search of his wallet was unreasonable is without
    merit. The Fourth Amendment secures people, their persons, houses, papers
    and effects against unreasonable searches and seizures. When a search of the
    person arrested is conducted incidental to a lawful arrest it is entirely
    reasonable for the arresting officer to search for and seize any evidence on the
    arrestee's person in order to prevent its concealment or destruction. Chimel v.
    California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden,
    Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782
    (1967); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652
    (1914). A search incidental to a valid arrest may have as one of its purposes the
    discovery of objects or things which constitutes evidence that the person
    arrested has committed a crime. Pinelli v. United States, 403 F.2d 998 (10th
    Cir. 1968); Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967), cert. denied 390
    U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174 (1968); Stone v. United States, 385
    F.2d 713 (10th Cir. 1967), cert. denied 391 U.S. 966, 88 S.Ct. 2038, 20 L.Ed.2d
    880 (1968).

    11 probable cause that is required to sustain the search is the same whether the
    "The
    purpose of the search is to uncover weapons, mere evidence or any of the other
    categories of permissible objects." Pinelli, supra, 403 F.2d at 1000-1001. See also
    Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Holt v.
    United States, 404 F.2d 914 (10th Cir. 1968), cert. denied 393 U.S. 1086, 89 S.Ct.
    872, 21 L.Ed.2d 779 (1969).
    12

    The law does not distinguish between documents and other items found on the
    person arrested. All of the seized items may be admitted in evidence if
    determined to have probative value in relation to the commission of crime.
    United States v. Kirschenblatt, 16 F.2d 202 (2nd Cir. 1926).

    "While
    we agree that strict consistency might give to a search of the premises,
    13
    incidental to arrest, the same scope as to a search of the person, it seems to us that
    that result would admit exactly the evils against which the Fourth Amendment is
    directed. Whatever the casuistry of the border cases, it is broadly a totally different
    thing to search a man's pockets and use against him what they contain, from
    ransacking his house for everything which may incriminate him, once you have
    gained lawful entry, either by means of a search warrant or by his consent. The
    second is a practice which English-speaking peoples have thought intolerable for
    over a century and a half." United States v. Kirschenblatt, supra, at 203.
    14

    The general rule is that incident to a lawful arrest, a search without a warrant
    may be made of portable personal effects in the immediate possession of the
    person arrested. The discovery during a search of a totally unrelated object
    which provides grounds for prosecution of a crime different than that which the
    accused was arrested for does not render the search invalid. Sumrall v. United
    States, 382 F.2d 651 (10th Cir. 1967), cert. denied 389 U.S. 1055, 88 S.Ct. 806,
    19 L.Ed.2d 853 (1968); Massey v. United States, 358 F.2d 782 (10th Cir.
    1966), cert. denied 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966); Cook v.
    United States, 346 F.2d 563 (10th Cir. 1965). Thus when Simpson's wallet was
    searched it was done incident to a lawful arrest and even though incriminating
    objects unrelated to the offense for which he was arrested were discovered, the
    search was valid. The incriminating Selective Service Certificate and
    Classification Card were admissible in evidence in the instant prosecution. We
    observe that although the general rule approved here does not require specific
    justification on a case-to-case basis, we take notice that knives and other small
    weapons can be secreted in wallets and that cards and addresses may disclose
    names of those who may have conspired with the person searched in the
    commission of the crime charged.

    15

    Simpson also alleges that the Government did not meet its burden of proof
    following his presentation in support of his contention that the evidence was
    tainted. He argues that once he raised the issue and presented evidence of taint
    through unreasonable search and seizure or invalid arrest, the burden of
    establishing constitutionality was on the prosecution. Simpson raised the issue
    of unlawful search of his wallet by motion to suppress. The motion to suppress
    was heard by the Court before trial. The Court ruled adversely to Simpson
    before the Government could respond. Matters of defense must be proven by a
    defendant. Since Simpson failed to prove that the search of the wallet was
    illegal, the burden did not shift to the Government. Nardone v. United States,
    308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

    16

    We conclude that the trial court did not err.

    17

    We affirm.

    18

    McWILLIAMS, Circuit Judge (dissenting).

    19

    I respectfully dissent. I agree with the majority that the affidavit was sufficient
    to justify the issuance of the arrest warrant. Accordingly, the argument that the
    search of Simpson's wallet was invalid because he was unlawfully arrested is
    without merit. My problem with this case is that I find nothing in the record
    which would justify the conclusion that the search of Simpson's wallet was
    reasonable.

    20

    I recognize that under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23
    L.Ed.2d 685 (1969) it is reasonable for the arresting officer as an incident to a
    lawful arrest to search the person thus arrested for weapons with which the
    arrest might be resisted and also to search his person for evidence which might
    be concealed or destroyed. However, Chimel recognized that there are Fourth
    Amendment limitations even on a search incident to a lawful arrest and in so
    doing the Court reemphasized the language from Terry v. Ohio, 392 U.S. 1, 88
    S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the scope of such search must be
    "strictly tied to and justified by the circumstances which rendered its initiation
    permissible." Terry in turn noted that a search which is reasonable in its
    inception may violate the Fourth Amendment by virtue of its "intolerable
    intensity and scope." And it is the scope of the present search which gives me
    concern.

    21

    See also in this regard, United States v. Humphrey, 409 F.2d 1055 (10th Cir.
    1969), where we reviewed many of the pre-Chimel cases bearing on this matter
    and concluded as follows:

    22. . [I]t is clear that the scope of a search contemporaneous with a legal arrest must
    ".
    have a reasonable relationship to the protection of the officer or the crime for which
    the accused was arrested . . .."
    23

    I do not view our pronouncement in Humphrey to be in any manner at odds with


    Chimel and, on the contrary, believe Humphrey to be in accord with the
    rationale of Chimel. And the United States Supreme Court in Coolidge v. New
    Hampshire, 403 U.S. 443, at page 482, 91 S.Ct. 2022, at page 2046, 29 L.Ed.2d
    564, made reference to Chimel as follows:

    24 begin with, in Chimel v. California, supra, we held that a search of the person of
    "To
    an arrestee and of the area under his immediate control could be carried out without
    a warrant. We did not indicate there, and do not suggest here, that the police must

    obtain a warrant if they anticipate that they will find specific evidence during the
    course of such a search." (Emphasis added.)
    25

    As indicated, I am unable to determine from the record before us what


    prompted the arresting officer to search Simpson's wallet. Certainly there is
    nothing in the record to indicate that the arresting officer had reasonable
    grounds, as he must have under the Fourth Amendment, to believe that either a
    weapon was concealed in the wallet or that the wallet contained evidence
    pertaining to the crime for which Simpson was being arrested, namely, the
    unlawful possession, some two weeks prior to his arrest, of dynamite, in
    violation of Kansas law. Such may conceivably be the case, but there is nothing
    before us to indicate that it was one or both of those reasons that prompted the
    arresting officer to thumb through the identification cards in Simpson's wallet.

    26

    I recognize that at the hearing on the motion to suppress neither the


    Government nor Simpson put on any evidence to develop the facts and
    circumstances surrounding the search. Rather, the argument in the trial court
    centered on the sufficiency of the affidavit which formed the basis for the
    issuance of the arrest warrant. Simpson, however, also contended that even
    though the arrest be deemed lawful, the ensuing search of his wallet was not. In
    this regard, the trial court indicated that the search of the wallet was perhaps a
    reasonable effort to identify the person arrested. However, there is nothing in
    the record to indicate that there was any identification problem.

    27

    In any event, I would remand the matter to the trial court with directions that it
    hold, even at this late date, a fullscale hearing on the motion to suppress,
    permitting the parties to call such witnesses as each desires. If, after such
    hearing, the trial court be of the view that the motion to suppress was properly
    denied, then the judgment and sentence should be permitted to stand, subject to
    our right to review on the record as thus made the propriety of the trial court's
    denial of the motion to suppress. If, however, after such hearing the trial court
    concludes that the motion to suppress should have been granted, then the
    judgment and sentence should be vacated and the case dismissed, as it is
    difficult to fathom how the Government could prosecute the case without the
    use of the Selective Service card belonging to Loveless but found in Simpson's
    wallet.

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