United States v. One 1957 Ford Ranchero Pickup Truck Motor No. B7KX 125697

HUXMAN, Circuit Judge

(dissenting).

I know of no case which has held squarely that a tip from an undisclosed informer whom the officer has found reliable on previous occasions is, of itself and without more, sufficient to constitute probable cause for a search without a warrant. It was my view that Draper v. United States was such a case. That view was not shared by my associates. They found probable cause from the tip and attending circumstances when Draper alighted from the train. That also seems to be the basis of the Supreme Court’s decision if I interpret it correctly. But as I view this case, it is not necessary to the decision to answer that perplexing question here.

The right of the people to be secure against unreasonable searches and seizures is ingrained in English Jurisprudence and is guaranteed by our Constitution. Basically it is required that before' an officer may come into my home or search my person, he must have a search warrant. But because of modern means of communication, some exceptions to the genera] rule have been recognized, especially in the case of automobiles. As pointed out by the Supreme Court in the famous Carroll case, cited in the majority opinion, it would be futile to obtain a search warrant and then find that the automobile had left the jurisdiction. It is, however, only in exceptional cases which must be carefully scrutinized that a search without a warrant is lawful.

Two factors must be present to make lawful a search without a warrant. There must be probable cause for a search sufficient to warrant the issuance of a warrant, and lack of opportunity to obtain a warrant in time to effectuate the search. The court found that the officers had ample time to obtain a warrant. Since there was time to obtain a warrant, they should have gotten one. The Carroll case, cited in the majority opinion, makes it clear that where it is feasible to obtain a search warrant for an automobile, it must be obtained. The court said that, “In cases where the securing of a warrant is reasonably practicable, it must be used * * [267 U.S. 132, 45 S.Ct. 286.] In Hart v. United States, 10 Cir., 162 F.2d 74, our court held that a search of an automobile without a warrant was unlawful where there was time to obtain one.

*28 This is not a case where the officers came upon an automobile upon the highway being operated under suspicious conditions or where they received a tip that “John Doe” was coming into town with a carload of liquor in a car of which they did not have the exact description. They had a detailed description of the car. They knew they were going to look for a 1957 Ford Pick-Up having a 1957 Oklahoma License, Tag Number 234T906, and that when they saw it they were going to stop it and search it. The fact that the automobile was being operated upon the highway did not make uncertain the place or thing to be searched. The place to be searched was just as definite as if the warrant had described a house numbered “126 South Main Street, in the City of Podunk.”

The difficulty in which the officers found themselves was that they could not have obtained the search warrant because they had insufficient facts to warrant the issuance of one by the magistrate. The court found that, “The Government concedes that the information received by the said officers was not sufficient for a magistrate to issue a search warrant.” That finding by the court is not challenged on this appeal.

The officers, even though they did not have probable cause for the issuance of a warrant, could go out and watch for this car for any reason, or without reason, or upon mere suspicion, and if when they saw it or any other car being operated under such conditions as would lead a reasonably prudent person to believe that the law was being violated, they could stop it and search it. But what did they see when the car came along ? They saw a car operated at a reasonable speed, in a proper and lawful manner, and without a single suspicious circumstance tending to support the conclusion that the law was being violated. Under those circumstances, the tip they received is not buttressed by suspicious attending facts or circumstances when they saw the car upon the highway.

It would seem to me to be a dangerous doctrine to hold that an officer may search an automobile without a warrant on grounds insufficient to obtain a warrant, if the opportunity to obtain a warrant were present.

I am in accord with the finding of the trial court that the information which Officer Bradley received shortly before the date of the mortgage transaction was not of such a nature as to establish general knowledge within the Police Department of a reputation for law violation.

I am also in full accord with the court’s judgment denying a forfeiture and granting a remission. I am, therefore, forced to respectfully dissent from the opinion of my associates reversing the judgment.