Swygert, Chief Judge, Duffy, Senior Circuit Judge, and Sprecher, Circuit Judge. Swygert, Chief Judge (dissenting).
This appeal raises the troublesome problem of a warrantless automobile search. Defendant Raymond Adams was convicted of possession of a sawedoff shotgun which was not registered to him in violation of 26 U.S.C. § 5861(d). He was placed on probation for two years.
On March 30, 1971, while a racial riot was in progress at Washington High School in South Bend, Indiana, an employee of a gasoline station about three blocks from the school observed three black males approaching a yellow automobile. One of them appeared to be carrying a long shoulder-type weapon, the barrel of which protruded about 12 inches from underneath his jacket. Shortly thereafter the employee, while delivering an automobile to a customer, saw a police officer on the street and told him that he had seen three males who appeared to be armed approaching a yellow automobile.
About that time a South Bend police officer on patrol duty in a marked police car in the area around Washington High School received a radio message to be on the lookout for a yellow car with three male black subjects in it, possibly armed. The officer responded to the call by driving toward the location given in the message of the 4400 block of Western Avenue. As he traveled on Western Avenue, a yellow car with three black males passed him. He made a U-turn and followed them. The two passengers turned around and looked at him, at which time he turned on his red light and siren for three short bursts.
The yellow car did not stop immediately but instead the two passengers bent over as if picking up something or doing something on the bottom of the car. The car stopped after the third siren blast. By that time other police units came on the scene. The three occupants stepped out of the yellow car. As the officer approached the car he observed a bolt-action shotgun on the back seat with the bolt pulled back and one shell locked in the bolt. He further observed a Western style revolver lying on the floor on the driver's side. On the passenger's side of the front seat, he observed what first appeared to be a pipe protruding from underneath the front seat. When he pulled this object out he discovered that it was a twelve-gauge sawed-off shotgun.
The above facts were adduced at a hearing on the defendant's motion to suppress evidence. Defendant also testified at the hearing. He said that when the first officer saw the weapons in the car, he said, "They've got guns" and then "everybody went . . . drawing (their weapons) and body-slapping people against the car and putting handcuffs on." The district court denied defendant's motion to suppress.
Defendant first argued that the officer's actions in turning on his red light and siren and stopping the car was an arrest, that there was no probable cause to arrest defendant, that consequently the search of the defendant and vehicle was not incident to a valid arrest, and that the court erred in denying the motion to suppress.
Defendant argued that "there is nothing unlawful about a male negro carrying a rifle." A different situation may exist, however, when a male or female, black or white, is carrying a rifle within a few blocks where a racial disturbance is in progress at a high school. The district court found that there was sufficient probable cause for the arrest and search "under the conditions existing at the time of this disturbance in the vicinity." He added:
"I think the officers would be derelict in their duty if under all the circumstances there at the time and place, the situation then existing, they had done any less."
At the suppression hearing, the gasoline station employee referred to "the riot that was happening at Washington High School at this time." When he first observed defendant with the gun he was about three blocks from the high school. The arresting officer testified at the suppression hearing that he was on patrol duty in the area around Washington High School where "we had a disturbance with the students at the school at that time." He stopped and eventually arrested defendant while he was still within blocks of the high school.
At the trial, the gasoline attendant referred to "the racial riots at Washington High School," whereupon defendant's counsel moved to strike that comment. The trial court said:
"I do not believe that this Motion should be granted because the situation then existing was a part of the background against which the Police were there and acting, but I should say to you, too, that insofar as the Court knows, there is no evidence here in any way tying this defendant with anything that was going on around Washington High School. So all of these facts may be just purely coincidential; that I do not know, but I do want to say that there's nothing suggested here that ties him in here with what was going on at Washington High School, but I cannot erase from the record the fact that it was that day."
Also at the trial, the arresting officer testified that he was on patrol duty in the vicinity of the high school. Another officer at the scene of the arrest testified that "I was in the vicinity of Washington High School along with many other officers as we had some trouble with the students." The disturbance or trouble or riot at the high school was within the personal knowledge of the arresting officers as well as of the informant.
The time and place setting of a search is not wholly irrelevant to its validity as defendant would lead us to believe.
In The Apollon, 22 U.S. (9 Wheat.) 362, 374, 6 L. Ed. 111 (1824), Mr. Justice Story, commenting upon the existence of probable cause for the seizure of a French vessel, said:
"It has been very justly observed at the bar, that the court is bound to take notice of public facts and geographical positions; and that this remote part of the country has been infested, at different periods, by smugglers, is a matter of general notoriety. . . ."
The Supreme Court found probable cause for the warrantless search of an automobile primarily on the ground that "Grand Rapids is about 152 miles from Detroit and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active centers for introducing illegally into this country spiritous liquors for distribution into the interior." Carroll v. United States, 267 U.S. 132, 160, 45 S. Ct. 280, 287, 69 L. Ed. 543 (1925). Recently, the Court said in Adams v. Williams, 407 U.S. 143, 147-148, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972):
"While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, Sgt. Connolly had ...