Opinion · Court of Appeals for the Fifth Circuit

United States v. Charles H. Sokolow

United States v. Charles H. Sokolow, 450 F.2d 324 (5th Cir. 1971)

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1971-10-28
Topic: general

seizure of serial numbers of air conditioning units during arrest for stolen cigarettes | “There is no doubt whatever that on the facts appearing in the record the search of appellant’s premises was forcibly made without either a search 20 warrant or authority and violated her constitutional rights under the Fourth and Fifth Amendments.” | copying the serial numbers of air conditioners is a seizure | copying the serial numbers of air conditioners is a seizure | “There is no doubt whatever that on the facts appearing in the record the search of appellant’s premises was forcibly made without either a search 20 warrant or authority and violated her constitutional rights under the Fourth and Fifth Amendments.” | “There is no doubt whatever that on the facts appearing in the record the search of appellant’s premises was forcibly made without either a search 20 warrant or authority and violated her constitutional rights under the Fourth and Fifth Amendments.”

Citator

Cited by: 27 opinions

UNITED STATES v. SOKOLOW,450 F.2d 324(5th Cir. 1971)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CHARLES H. SOKOLOW,

DEFENDANT-APPELLANT.

No. 71-1135.

Summary Calendar.^fn*

United States Court of Appeals, Fifth Circuit.

October 28, 1971.

Page 325

Louis Vernell, Miami Beach, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Richard A. Hauser, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

[1] This is an appeal from a judgment of conviction on a jury verdict finding Sokolow guilty of the unlawful receipt and possession of stolen property in violation of18 U.S.C.A. § 659. We reverse.

[2] A police officer, acting upon reliable information that cigarettes had been stolen, followed a suspect's automobile which eventually backed up to Sokolow's garage. While arresting the suspect, the officer saw a number of air conditioning units stacked in the garage. The officer questioned Sokolow concerning the ownership of the equipment. In the course of this investigation, the officer entered the garage and took serial numbers from the units without a search warrant. This information established that the air conditioners were stolen property, and Sokolow was arrested. Prior to trial, Sokolow moved to suppress the evidence pertaining to the serial numbers and all evidence obtained as a result of that seizure as the fruit of a warrantless search in violation of his rights under the Fourth Amendment. The motion was denied.

[3] A search conducted outside the judicial process, i. e., without a warrant, isper seunreasonable in violation of the Fourth Amendment. Katz v. United States, 1967,389 U.S. 347,357,88 S.Ct. 507,19 L.Ed.2d 576. While this rule is subject to limited and well-defined exceptions that may justify a warrantless search and seizure, "[t]he exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.'" Coolidge v. New Hampshire, 1971,403 U.S. 443,91 S.Ct. 2022,29 L.Ed.2d 564[June 22, 1971].

[4] The Government first contends that the search and seizure of the serial numbers was valid based upon probable cause. Manifestly, a showing of probable cause is required for the granting of a warrant, but "* * * no amount of probable cause can justify a warrantless search and seizure absent `exigent circumstances'". Coolidge v. New Hampshire,supra,403 U.S. at 468,91 S.Ct. at 2039. Here there were simply no exigent circumstances. The nature of the stolen property was not such that it could be easily disposed of and other agents were maintaining surveillance on the garage. Under these circumstances, a warrant should have been sought.

[5] Secondly, the Government in a rather oblique argument in which it couplesPage 326the plain view doctrine with probable cause attempts to justify the warrantless seizure of the serial numbers. The appearance of the air conditioners gave no indication that they were contraband nor were they evidence of an ascertained crime. Except for suspicion, there was no justification for the officer to enter the garage. He had no legitimate reason to do so apart from the search directed at Sokolow. "What the `plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." Coolidge v. New Hampshire,supra,403 U.S. at 466,91 S.Ct. at 2038. It is thus evident that this is not a plain view case and it cannot be made so by coupling the doctrine with probable cause.

[6] We conclude that the serial numbers and the evidence flowing from the seizure were obtained in a warrantless search in violation of the Fourth Amendment.

[7] Reversed.Page 328

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. ↩