551 F2d 59 United States v. Puckett

551 F.2d 59

UNITED STATES of America, Plaintiff-Appellee,
John Darwin PUCKETT, Defendant-Appellant.

No. 76-3941
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

April 20, 1977.

P. Bruce Kirwan, Federal Public Defender, Ralph Washington, Asst. Fed. Public Defender, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., Dorothy T. Beasley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before THORNBERRY, RONEY and HILL, Circuit Judges.


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Defendant Puckett appeals his conviction for possession of an unregistered sawed-off shotgun, 26 U.S.C.A. § 5861(d) (Supp.1976). He contends the warrantless seizure of the weapon violated his Fourth Amendment rights and the trial court erred in denying his motion to suppress.


Shortly before his arrest, the defendant was lying on a motel room bed with the shotgun by his side. Local police officers approached the room to investigate a report of the use of a stolen credit card. The district court's factual findings are not clearly erroneous. The court decided that the officers first saw the gun either when they looked through the motel room window or when a friend of the defendant opened the door in response to their knock, enabling them to see the gun from the threshold. In either case, the subsequent arrest and seizure of the shotgun was lawful. Once they saw the gun lying by his side, they had probable cause to arrest him for illegal possession. Even forcible entry would have been allowed. United States v. Hofman, 488 F.2d 287, 289 (5th Cir. 1974). Seizure of the gun was doubly justified because the weapon was an instrumentality of crime in plain view, United States v. Sherriff, 546 F.2d 604, 606-607 (5th Cir. 1977), which threatened danger to the arresting officers, United States v. Wysocki, 457 F.2d 1155, 1158-1161 (5th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972).




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