Appeal From the United States District Court For the Eastern District of Pennsylvania.
Hunter, Becker, Circuit Judges, and Hoffman,*fn* District Judge.
This case arises from an early morning stop and search of an automobile. A search of the automobile trunk revealed a loaded .22 caliber semi-automatic pistol, and the police arrested the car's occupants, defendants Robert Rickus and Dennis Nazarok. The defendants were subsequently indicted under 18 U.S.C.App. § 1202(a)(1) (1982), which prohibits the possession of firearms by convicted felons. Both defendants filed pre-trial motions to suppress the evidence seized during this stop, arguing that the stop and the subsequent search were unlawful. The district court, 566 F. Supp. 96, ordered that the evidence seized from the trunk of the car be suppressed. The United States has taken this interlocutory appeal from the district court's order, as authorized by 18 U.S.C. § 3731 (1982).
At approximately 3:30 on the morning of June 27, 1982, Officer Halpin was sitting in his patrol car in a parking lot in the business district of Richboro, Pennsylvania. He observed a black and gold Buick traveling up the highway and then, thirty minutes later, observed what he believed to be the same car traveling back again. At the time of the second sighting, the car was moving extremely slowly past the closed stores of the commercial district. Halpin followed the vehicle as it drove through the commercial district and into a nearby residential area. Aware that the residential area had recently been victimized by as many as twelve unsolved nighttime burglaries, although none had been reported that night, Halpin called for assistance in following the car. Sergeant Quaste and Officer Berwind, who were patrolling nearby in an unmarked police car, responded to the call. Both police cars followed the Buick through the residential area for several minutes. During that time, the car continued to travel slowly. At one point, it stopped momentarily in front of a residence. Finally, when the car made a legal U-turn, to return in the direction from which it had come, Halpin pulled in front of the car and stopped it. Quaste and Berwind continued on in their car.
As Halpin approached the car, the driver, defendant Nazarok, got out of the car. When Halpin asked Nazarok for identification, Nazarok responded that he did not have his driver's license or any other identification with him. Halpin then asked the passenger, defendant Rickus, for identification.Rickus at first did not acknowledge the request and remained motionless in the car. After Halpin again asked him for identification, Rickus responded that he had none. Nazarok eventually produced from the car's glove compartment a no-fault insurance card bearing the name of Bernadette Nazarok. While Nazarok was searching for the insurance card, Halpin illuminated the car's interior with his flashlight. He noticed some pliers and a screwdriver on the floor behind the driver's seat, a flashlight on the floor in the front passenger area, and roadmaps on the front seat.
When Halpin asked Nazarok and Rickus where they had been, they replied that they had been drinking at several bars. Neither, however, could remember the name or location of any of the bars, and Halpin could not detect any odor of alcohol on Nazarok's breath. Throughout this questioning, both defendants repeatedly exchanged glances and generally acted in what was characterized as a nervous manner.
While Halpin was talking to the defendants, Quaste and Berwind returned to the scene and got out of their car. At one point, as Halpin questioned Nazarok, Quaste noticed Rickus slowly backing away from the car. Quaste told Rickus to return to the car. Rickus later started to back away from the car and again was told to return to the car. While Halpin was questioning the defendants, he noticed a bulge in the left pocket of Nazarok's jacket and the top of a bullet proof vest sticking above the jacket. After Halpin had several times asked Nazarok to remove his jacket, Nazarok finally complied - revealing a full upperbody bullet-proof vest. At this point, both men were asked to face the Buick and place their hands on it while they were patted down. Quaste then searched the car's interior and found, among other things, the screwdriver, pliers, flashlight and map previously seen by Halpin, a hunting knife, and a pair of brown work gloves. He also discovered two pairs of surgical gloves in the pocket of Nazarok's jacket, which had been handed to him. When asked why he and Rickus were wearing bullet-proof vests, Nazarok stated that they were going to "hit" a drug dealer, but the deal "had gone sour."
Quaste then removed the keys from the ignition, opened the trunk, and there found a loaded .22 caliber semi-automatic pistol and a mask of Leonid Brezhnev.
Nazarok and Rickus were placed under arrest and subsequently charged in federal court with "possession of a firearm by a convicted felon," in violation of 18 U.S.C. App. § 1202(a)(1) (1982). Prior to trial both defendants filed motions to suppress the evidence seized from their persons and their car, and to suppress Nazarok's statement about "hitting" the drug dealer.
The district court concluded that the initial stop and the search of the passenger compartment were both lawful, and that the evidence obtained therefrom would not be suppressed. It ordered that Nazarok's statement about "hitting" a drug dealer be suppressed after concluding that it was the result of a custodial interrogation which took place prior to giving Nazarok his Miranda warning. Finally, it determined that Pennsylvania law governed the validity of the warrantless search of the car's trunk and that under Pennsylvania law there was not probable cause to search the trunk. The court therefore ordered that the evidence seized from the trunk be suppressed.
The Government moved for reconsideration of that part of the order suppressing the evidence seized from the trunk. It specifically requested the court to reconsider its conclusion that Pennsylvania law governed the validity of the search, and urged that the trunk search was permitted by the rule announced in United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982). In its second Memorandum and Order, the trial court determined that even if federal law applied, the trunk search was unlawful because federal law ...