
    Robert HAMMOND, Petitioner, v. O. M. BOSTIC, Superintendent, Monroe, North Carolina Unit, North Carolina Department of Correction, and State of North Carolina, Respondents.
    No. C-C-73-102.
    United States District Court, W. D. North Carolina, Charlotte Division.
    Nov. 29, 1973.
    On Motion for Reconsideration Feb. 8, 1974.
    Richard N. League, Asst. Atty. Gen., North Carolina Dept, of Justice, Raleigh, N. C., for respondents.
   ORDER

McMILLAN, District Judge.

On July 18, 1972, Robert Hammond, petitioner, was convicted in the Superior Court of Mecklenburg County, North Carolina, of possession of heroin, and is now in the custody of the Monroe, North Carolina prison unit serving a three-year sentence for that offense. He seeks habeas corpus upon four grounds, the first of which is his claim that the search of his person, pursuant to an arrest for speeding, which uncovered the heroin, was in violation of the Fourth Amendment and that his conviction based on that heroin as evidence was unlawful.

Hammond attracted the attention of the police by driving an estimated seventy miles per hour in a forty-five miles per hour zone in Charlotte. He was stopped and arrested. The arrest, under the circumstances, was proper.

Following the arrest he was searched. One arresting officer described the search as follows:

“Q. All right. Now, what did you do after you placed him under arrest?
A. I took him back to the back seat or the back door of the patrol car, where I placed his hands up on the car and searched him.
Q. Did you observe anything about him before you searched him?
A. There was a bulge in both of his front pockets.
Q. What, if anything, did you find upon searching him ?
A. In his left front pocket I found some glassine bags wrapped in rubber bands, which I later found out to be heroin.” (Tr. 6-7)

Another version of the search was:

“Q. Then what happened after you placed him under arrest for speeding ?
A. I had him to walk back to the rear of the patrol car, to the back seat door, to the back door, where I placed his hands up on the car and searched him.
Q. What, if anything, did you find ■ as a result of the search ?
A. In his left front pocket I found twenty-two bags of heroin.” (Tr. 17)

And a third version was:

“Q. What happened after Officer Ryals placed him under arrest?
A. We took him to the right side of the rear door, and the subject was searched for a weapon.
Q. What, if anything, did you see Officer Ryals find on the defendant while you were searching him for weapons ?
A. Sir, upon the search, we found some glossy little bags about this big.” (Tr. 33)

From the complaint report filed by Officer C. R. Ryals, it is clear that the garment in which the bulges were observed was Hammond’s pants (not his coat), and that, though there were bulges in both front pockets, only one pocket contained heroin.

Defendant objected to the evidence of the discovery of heroin in his pocket. The objections were overruled and the trial judge found that the “search of defendant’s person was incident to a lawful arrest, and the fruit of such search was admissible in evidence.”

There was no testimony that any of the three officers believed or suspected that Hammond was concealing a weapon. The offense (speeding) is not one which normally creates an inference that the person arrested is armed. No one said or suggested any suspicion that Hammond was armed. (He was not in fact armed.)

In Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971), the Supreme Court said:

“. . . [T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions’ [Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.] The exceptions are ‘jealously and carefully drawn,’ [Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514.] and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ [McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153.] ‘[T]he burden is on those seeking the exemption to show the need for it.’ [United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.] In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won ... a right of personal security against arbitrary intrusions by official power . . . ” (Emphasis added.)

In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), the Court reaffirmed the general rule that warrantless searches are “unreasonable.” See also, Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 2543, 37 L.Ed.2d 596 (1973). (Mr. Justice Powell, concurring).

Some searches incident to lawful arrests are within the exception to the warrant requirement. However, the state does not gain carte blanche right to search merely by lawfully arresting a person. The arrest deprives the person of his liberty to move freely; it does not necessarily, however, deprive him of his right to privacy. Any incursions into a person’s privacy must be carefully limited to the quantum necessary to protect valid state interests; any excess is unconstitutional. This principle is the foundation of Supreme Court decisions involving administrative searches and so-called “stops and frisks.” Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1863, 20 L.Ed.2d 889 (1968). See United States v. Robinson, 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972), cert. granted, 410 U.S. 982, 93 S.Ct. 1500, 36 L.Ed.2d 177 (1973), where Judge Wright extensively reviews the subject. (Certiorari was also granted the same day to a state court case involving the same issue, Gustafson v. Florida, Fla., 258 So.2d 1, cert. granted, 410 U.S. 982, 93 S.Ct. 1494, 36 L.Ed.2d 177.) See also People v. Adams, 32 N.Y.2d 451, 346 N.Y.S.2d 229, 299 N.E.2d 653 (1973), where New York's highest court adopts the Robinson analysis.

The most recent Supreme Court discussion of the “search incident to arrest” exception to the warrant requirement of the Fourth Amendment explicitly takes account of the principles noted above:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, 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 destruction.” Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).

From Chimel and from Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963), it appears obvious that the “evidence on the arrestee’s person” is not just such evidence of crime, generally, as might be found there, but is evidence of “the crime” for which the person was arrested.

It cannot seriously be contended that a search of Hammond’s person was necessary to discover evidence of the misdemeanor (speeding) for which he had just been arrested. Had Hammond been arrested for driving under the influence of drugs or liquor, such a contention might be supportable; but he was arrested only for the routine misdemeanor of going too fast. The search must then be justified, if justified at all, on the theory of a search incident to arrest, for weapons on the arrestee’s person.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968) is a key decision. Terry points out that the search process — even for weapons — ■ must proceed in incremental stages. A “frisk” can take place only if there is some reason to believe that the person frisked has a weapon in his possession. The next step, entry into the clothing itself, can take place only after the external frisk has given further reason to believe the weapon is there.

Terry, of course, did not concern a person who had already been arrested; however, as pointed out by Judge Wright in Robinson v. United States, 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972), there is no reason why its principle should not apply even after arrest. There is a per se right to frisk any arrestee who must be taken down to the police station.

“. . . [I]t would seem clearly unreasonable to expect a police officer to place a suspect in his squad car for transportation to the stationhouse without first taking reasonable measures to insure that the suspect is unarmed. We therefore conclude that whenever a police officer, acting within the bounds of his authority, [footnote omitted] makes an in-custody arrest, he may also conduct a limited frisk of the suspect’s outer clothing in order to remove any weapons the suspect may have in his possession.” Robinson, at 1098.

However, there is no right to enter the clothing unless the frisk generates a reasonable suspicion that a weapon exists. Entering one’s clothing is. a significant further breach of privacy, an intrusion wholly independent of the restriction of movement caused by an arrest.

“. . . And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intru-' sion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. See also id., at 27, 88 S.Ct. 1868.

To reject the Terry principle merely because the person has been arrested would be to collapse the distinction between liberty and privacy. Terry “implicitly acknowledged a continuum of privacy values in which the security of one’s pockets ranks higher than a temporary interference with freedom of movement. Arrest per se ■ should not alter this relationship — an individual’s interest in the security of his pockets does not cease simply because he is arrested.” Note, Restricting the Scope of Searches Incident to Arrest: United States v. Robinson, 59 Virginia Law Review 724, 737 (1973). Protection of the safety of the police during arrest does not require that a person arrested for speeding be deprived of his (or her) right to even minimal privacy. If it were held that police are entitled to total security from the threat of weapons, then the total deprivation of privacy would follow. “To take an extreme example, a razor blade could readily be sewn into clothing, and so support a purported limited search for weapons which included shredding a suspect’s clothing or dismantling his shoes.” United States v. Del Toro, 464 F.2d 520, 522 n. 6 (2nd Cir. 1972).

It is important to note again the nature of the crime — speeding—for which Hammond was arrested. Speeding is not a crime whose perpetrators are ordinarily suspected of being armed. The obvious authority to search the person of a suspected bank robber for concealed weapons does not, per se, extend to searches of the person in arrests following routine traffic violations, even those requiring that the arrestee be taken to the magistrate, as was the situation in this case.

Pockets are made to carry personal property. Some of us do carry things (wallets, handkerchiefs, keys, cigarettes, pipes, tobacco pouches) in pants pockets. A bulge in a speeder’s pocket is not a normal basis for suspicion that the pocket contains a dangerous weapon. An external “frisk” or pat-down could very easily reveal whether a bulge was or might be a weapon, rather than a more yielding material.

The evidence in this case does not support the search either to find evidence of the crime of speeding or to discover weapons; and it is not supportable simply as a routine part of a speeding arrest.

Taking the evidence presented by the police at the trial below in its most favorable light, then, there are not evident the “specific and articulable facts” which are necessary in order to warrant the breach of privacy wrought by a search of one’s clothing. Terry, 392 U.S. at 21, 88 S.Ct. 1868. The scope of a search must be supported at least by reasonable suspicion. United States v. Diamond, 478 F.2d 1400; United States v. Haven, 478 F.2d 1400 (4th Cir., decided together, June 20, 1973). See also United States v. Poms, 484 F.2d 919 (4th Cir., 1973), where emphasis is placed on the presence of a factual basis for a “limited protective search.” 484 F.2d at p. 922.

The search of the pocket which uncovered the heroin was unconstitutional; the evidence should have been suppressed.

In his second claim, Hammond alleges that he was not warned of his constitutional rights following his arrest or, indeed, at any time subsequently. Such failure to warn gives rise to no relief because no evidence was introduced against him that depended on any statement of Hammond’s.

In his third claim, Hammond alleges that the prosecutor improperly attempted to influence the jury by introducing evidence of a non-existent previous arrest for a narcotics violation. The record does not factually support this contention, and it would not be a constitutional error if it did.

Finally Hammond alleges in effect that he was “framed.” He says that he never had narcotics in his possession, and that the police placed on him at the police station the evidence that was subsequently introduced at trial. Hammond presents no evidence that this happened, and the jury finding, based on the testimony, that the heroin was in fact on him at the time of arrest is conclusive on this review, by this court.

It is therefore ordered:

1. That the petition for habeas corpus is granted.

2. That petitioner be released from custody within thirty (30) days from this date unless within such thirty (30) days the state elects to re-try petitioner and notifies this court in writing, by communication received by this court within said thirty (30) days.

3. That if the state elects either to re-try petitioner or to appeal this decision, the state shall cause petitioner to be brought before this court before the expiration of thirty (30) days from today, for a hearing on the question of bond or release upon the petitioner’s recognizance.

4. That O. M. Bostic, Superintendent of the Monroe Unit of the North Carolina Department of Correction, is made a party defendant.

ON MOTION for RECONSIDERATION

After this court’s November 29, 1973 order was entered, the United States Supreme Court by a six to three vote in Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, 1973, held that a lawful custodial, arrest of a motor vehicle operator for failure to have his driver’s license in his immediate possession is justification, without more, for a full scale search of the person of the operator, and that evidence discovered in the course of this search may be üsed as the basis of a criminal prosecution for unlawful possession of marijuana.

Defendants, in light of Gustafson and companion cases, have moved for reconsideration of this court’s November 29, 1973 order.

Although I agree thoroughly with the Supreme Court dissenters rather than with the majority in the remarkable Gustafson decision, it is obvious that this case would on appeal be controlled by Gustafson.

Therefore, in deference to the superior force and authority, though not to the principles, of Gustafson and companion cases, I find it my duty to save the state an unnecessary appeal, and to reverse the prior order.

Accordingly, it is ordered, that this court’s order of November 29, 1973, insofar as it grants relief to petitioner, be and it is hereby reversed.  