Maris, Seitz and Stahl, Circuit Judges.
The defendant, Clyde Marvin Thompson, Jr., appeals from a judgment of the District Court for the District of Delaware adjudging him guilty of unlawfully possessing, in violation of 26 U.S.C. § 5851, a sawed-off shotgun which had been made in violation of 26 U.S.C. § 5821.
Prior to trial the defendant filed two motions: one, to suppress evidence on the ground that the shotgun was the fruit of a search incident to an unlawful arrest, and, the other, for dismissal of the indictment on the ground that 26 U.S.C. § 5851 violates the defendant's constitutional rights against self-incrimination. For the purposes of the district court's consideration of defendant's motion to suppress evidence, counsel for the Government and the defendant stipulated that the facts surrounding the defendant's apprehension should be determined from the information contained in the police report of November 22, 1967, the day of arrest, which was filed by the arresting police officers. The District Court, in a well-considered and thoughtful opinion by Judge Latchum, denied both motions. 292 F. Supp. 757. The defendant waived trial by jury.
From the testimony offered at the trial, it appears that at about 5:30 A.M. on the morning of November 22, 1967 in Wilmington, Delaware, the defendant was seen by Patrolmen William G. Hedrick and Raymond M. LeHowit, officers of the Wilmington Bureau of Police, under circumstances which aroused their suspicions. As they were cruising in a police-van past an Atlantic gasolene station, which was open and attended by one man, they saw an automobile parked in "sort of a strange way" in that the automobile was not located near the gasolene pumps, the motor was running, and the defendant was not making any attempt to get gasolene or to use the other facilities of the station. Patrolman LeHowit was driving. His interest aroused, he turned around and parked where the police officers could observe the station. They saw the defendant jump into the automobile and drive out of the station, driving east on a street which was restricted to west-bound traffic for about 75 feet. They followed the defendant for about half a mile before he was stopped. They had observed that there were bullet holes in the windshield which were stuffed with paper and that the automobile had a loud muffler. In the meanwhile, Patrolman Hedrick informed Patrolman LeHowit that he recognized the defendant and knew that he had no operator's license because he had been arrested about two weeks previously for not having such a license.
It was the policy of the police department for police officers not to stop an automobile without assistance during the midnight to 8 A.M. shift, so Patrolman LeHowit radioed for assistance, giving their location. Sergeant Lawrence M. Curtis answered the call. The defendant was directed to pull over to the south side of the street; Patrolmen Hedrick and LeHowit parked behind his automobile and approached on the driver's side; Patrolman Hedrick then stood to the left of defendant's automobile, Patrolman LeHowit stood three or four feet behind Hedrick; the defendant remained seated in the automobile behind the wheel. Sergeant Curtis stopped his automobile in front of the defendant's automobile, alighted and stood beside the door of the defendant's automobile to the front of Patrolman Hedrick.
Patrolman Hedrick asked the defendant for his operator's license and automobile registration card; the defendant produced the registration card and a learner's permit. Patrolman Hedrick testified that he then placed the defendant under arrest for unlawfully driving with a learner's permit unaccompanied by a licensed driver and that he read to the defendant from a white card advising the defendant of the rights available to an arrested person. Patrolman LeHowit testified that although he could not hear, he knew that an arrest had been made when he saw Patrolman Hedrick pull out the white card. At that time Patrolman Hedrick saw the defendant's right hand reach between his legs down under the seat of the automobile and saw the butt end of a rifle being pulled from beneath the seat. Patrolman Hedrick yelled to Sergeant Curtis, who was standing next to the door handle, "Watch him, he is going for something." Sergeant Curtis opened the automobile door, grabbed the defendant's left arm and pulled him out of the automobile. Patrolman Hedrick reached in and brought out a sawed-off shotgun and a shell from under the front seat. The firearm was a double barreled, 12 gauge, sawed-off shotgun, the safety was off, and it was ready to be fired. The shotgun was 25 inches in length, the barrels 16 1/4 inches in length. The unspent shell was found on the floor next to the gun.
The defendant testified in his own behalf. He denied that the police officer had read to him from a card; he denied that he had reached for the weapon stating that he had his wristwatch on the seat beside him; that on being advised that he was under arrest he knew that the automobile would be towed away so he reached for his watch and that the police officers were under the impression that he was reaching for the weapon; and that it was too dark for the police officers to have been able to see the weapon under the seat.
Following the close of all evidence, the defendant's motion to suppress the evidence was renewed on the ground that the testimony given during the trial was conflicting and inconsistent with that given by the police officers before the United States Commissioner and in their police report. The trial judge, however, denied the motion to dismiss stating that the testimony given during the trial of the case was not so inconsistent with that which he had previously considered in deciding the merits of defendant's motion to suppress evidence as to warrant a change in his previous decision.
On this appeal the defendant's first contention is that the District Court erred in refusing to suppress the evidence obtained by the Wilmington police officers. He argues that the evidence was illegally seized in that the police officers had no probable cause for the arrest.
It was settled in Carroll v. United States, 1925, 267 U.S. 132, 147, 153, 45 S. Ct. 280, 69 L. Ed. 543 and Brinegar v. United States, 1949, 338 U.S. 160, 164, 69 S. Ct. 1302, 93 L. Ed. 1879, that under the Fourth Amendment, a valid search of a vehicle moving on a public highway may be had without a warrant, with probable cause. One need not have evidence which would justify a conviction; probable cause exists if the facts and circumstances known to the officer would warrant a prudent man in believing that the offense has been or is being committed.*fn1 On the other hand, probable cause means more than a bare suspicion, the line between mere suspicion and probable cause "must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances."*fn2 Furthermore, where an arrest without a warrant was not made under a federal statute, the validity of the arrest is determined by the law of the state where the arrest took place.*fn3 The reviewing court must evaluate the individual facts of each case; inquiry must be made as to what objective facts were available to the arresting officers to support a belief that the defendant was engaging in unlawful activity at the time he was arrested -- what did they see or otherwise perceive to give them ground for belief that the defendant had acted or was then acting unlawfully.*fn4
We turn then to the question whether prudent men in the shoes of the police officers in this case would have seen enough to cause them to believe that the defendant was violating the law. It will be recalled that in the dark hours of early morning, the two police officers observed the defendant and his automobile at a gasolene station, which was attended by only one man, in a location which aroused their suspicions. After they turned the police-van around to observe the defendant's action, he jumped into his vehicle and drove in the wrong direction on a one-way street in an automobile which had bullet holes in the windshield and a loud muffler. At that time one officer told the other that he recognized the defendant as having been arrested about two weeks earlier for driving without a license. We think that the defendant's strange actions at the gasolene station, together with the infractions of the Delaware Motor Vehicle Code which the officers observed and their knowledge of defendant's prior arrest for a violation of the code, presented a combination of circumstances which warranted them in stopping the defendant. After having stopped the defendant and upon ascertaining that he was not driving with a lawful driver's license but rather with a temporary instruction permit unaccompanied by a licensed operator in violation of the law, 21 Del.C. §§ 2701, 2708, 2719, the officers had the authority to make the arrest without a warrant for violation of the Motor Vehicle Code of Delaware. 21 Del.C. § 701 (a). We conclude that the District Court rightly held that the arrest of the defendant was lawful under these circumstances.
This brings us to the contention of the defendant that the District Court erred in holding that the shotgun which was offered in evidence had been lawfully seized. It is well settled that arresting officers, upon a valid arrest, may seize visible instruments or fruits of crime within the control of the accused; it is unreasonable searches which are prohibited.*fn5 The reasonableness of the search is in the first instance for the trial court to determine from the facts and circumstances of the case in the light of the fundamental criteria laid down by the Fourth Amendment and in opinions of the Supreme Court applying that Amendment.*fn6 The Supreme Court has made it clear that a law enforcement officer, when he justifiably believes that the individual he is investigating at close range is armed, has the power for his own protection to take ...