Appeal from an Order of the United States District Court for the District of Connecticut, Zampano, J., Suppressing Various Items Seized after an Automobile Search.
Friendly, Meskill and Pratt, Circuit Judges. Friendly, Circuit Judge, concurring in the result.
Pursuant to 18 U.S.C. § 3731 (1982), the government appeals an order of the United States District Court for the District of Connecticut, Zampano, J., suppressing two sawed off shotguns, a handgun, a police scanner, two CB radios, several burglars' tools and various other items found in the trunk and passenger compartment of an automobile operated by appellee Michael Roland Roy. United States v. Roy, 568 F. Supp. 1127 (D. Conn. 1983).
Roy was charged with two counts of unlawful possession of an unregistered shotgun in violation of 26 U.S.C. §§ 5851, 5871 (1982) and one count of unlawful possession of a shotgun and a pistol by a convicted felon in violation of 18 U.S.C. App. § 1202 (1982).
We vacate the order of suppression and remand the case for further proceedings.
Rocky Hill, Connecticut detectives Mazzamurro and Dodenhoff were engaged in a routine patrol in an unmarked car on the evening of December 3, 1982. At approximately 8:00 p.m. the officers drove into the parking lot of the Great Meadow Plaza, a local shopping center. The plaza had been the scene of a number of recent automobile thefts, purse snatchings and robberies. Despite the late hour, most of the stores in the plaza were open because of the holiday season.
The officers parked their car and began a surveillance of the area. They observed a "beat up" Subaru automobile with Massachusetts license plates backed into a parking space at the south end of the lot, giving the two male occupants an unobstructed view of the stores. Both men wore hats over their foreheads, sat in a slouched position and stared at the stores in front of them. The men did not appear to be talking to each other. Neither officer recognized the men or the vehicle.
Based on their "experience and expertise," the officers surmised that a robbery was about to occur. Officer Mazzamurro radioed for a patrol car to render assistance. Almost immediately, the occupant of the front passenger seat of the Subaru, Martinez, left the car and walked toward the stores, looking over his shoulder in a nervous fashion as he walked away from the car. The driver of the automobile, Roy, then drove the car out the main entrance of the plaza and turned left onto a local thoroughfare. Officer Mazzamurro radioed the patrol car to apprehend Martinez and then followed the Subaru out of the parking lot.
Roy drove a short distance, stopped at a stop sign and made a right turn. The officers pulled alongside the Subaru, flashed their badges and ordered Roy to stop. He complied. The officers got out of their car and approached the Subaru. Their guns were not drawn. They asked Roy for identification. As he removed a license from his wallet, the officers heard a police radio transmission coming from the interior of the Subaru. When Officer Mazzamurro asked Roy about the source of the transmission, Roy started to reach down between his legs. Concerned for their safety, the officers forcibly removed Roy from the car and arrested him for attempted robbery. Officer Mazzamurro reached under the seat and found a police scanner. A subsequent examination revealed that the brand name and serial number of the scanner had been pried off.
Following the arrest, the officers searched the interior of the car. They seized a hat, a ski mask and a pair of binoculars. One of the officers called for a wrecker to tow the car away. When they asked Roy for permission to open the trunk, he refused. One of the officers reached into the car, removed the ignition key and opened the trunk. They seized from the trunk, inter alia, two sawed off shotguns, a pistol with the serial number removed, a box of shotgun ammunition, a pry bar, two hacksaw blades, a dent puller, a hydraulic jack, a glass cutter, two CB radios, several pairs of rubber gloves and a ski mask. Several of the items were found inside bags or pouches.
Roy was taken to police headquarters and booked under the name "James Allan Robinson," the name on an Oklahoma driver's license which he carried. Fingerprint analysis revealed that he was not Robinson but Roy. It was subsequently learned that Roy was an escaped felon. He had pleaded guilty to armed robbery and escape in Du Page County, Illinois in 1982 and was sentenced to concurrent prison terms of fifteen and five years, respectively. After his conviction and sentencing, Roy was transferred to the federal Metropolitan Correctional Center (MCC) in Chicago to answer federal bank ...