Appeal from the United States District Court for the Northern District of Indiana, Hammond Division - No. H Cr 74-31 Allen Sharp, Judge.
Swygert, Circuit Judge, Tone, Circuit Judge, and Perry, Senior District Judge.*fn*
PERRY, Senior District Judge.
This is an appeal by James Edward Davis, defendant below, from an order of the District Court denying Davis' motion to suppress evidence, and from the District Court's order sentencing Davis to a two-year term of imprisonment for possession of a firearm by a convicted felon.
On February 27, 1974 a grand jury returned a true bill charging that Davis, after having been convicted of a felony, did knowingly receive, possess, and transport, in commerce and affecting commerce, a firearm, i.e., a Smith and Wesson.38 caliber, snub-nosed revolver, in violation of 18 U.S.C. Appendix § 1202(a)(1). Davis pleaded not guilty and demanded a jury trial. Prior to trial Davis filed a motion to suppress the introduction of the firearm into evidence on the grounds that the firearm was seized in violation of the Fourth Amendment to the United States Constitution and was seized without a warrant. The District Court held an evidentiary hearing on the motion, ordered both parties to submit briefs, and, after briefs were filed by both parties, denied said motion in a Memorandum and Order entered October 1, 1974. After a two-day jury trial, Davis was found guilty as charged. On November 15th the District Court entered a judgment of conviction and sentence.
On a clear, cold (32 degrees) day at about 3:25 P.M. on January 28, 1974, Davis, dressed in a long, ankle-length coat and accompanied by one Andre Kyles, was walking north on the sidewalk on the west side of the 1800 block on Broadway Avenue in Gary, Indiana. At the same time, Sgt. Cobie Howard, Jr., of the Gary Police Department was in uniform in an unmarked police squad car facing south in the same 1800 block of Broadway Avenue. At the hearing on Davis' motion to suppress evidence, Sgt. Howard testified, in pertinent part, as follows:
(1) While seated in his squad car parked alongside the curb on the west side of Broadway, he observed Davis and Kyles walking northbound together, Kyles walking on the curb side of the sidewalk.
(2) Davis then moved close to a building and began to adjust his shirt and trousers on the right side of his waist-hip area, while Kyles proceeded singly northbound.
(3) At this point, while Sgt. Howard was still seated in the squad car, approximately ten feet away from Davis, he clearly saw that Davis, his coat unbuttoned, was trying to adjust an object evidently located in his waistband. This was the kind of adjustment which Sgt. Howard himself had made on numerous occasions for the purpose of repositioning his service revolver when wearing it, unholstered, in his waistband.
(4) Sgt. Howard exited from the squad car and walked toward Davis because he thought that Davis had a firearm on his person. Davis' behavior appeared suspicious to Sgt. Howard, who was also aware that he and Davis were in a "high-crime" area of Gary.
(5) It appeared to Sgt. Howard that Davis was not aware of Sgt. Howard's presence. Davis then began to close his coat, at which moment Sgt. Howard clearly observed, from a distance of about four or five feet from Davis, the handle and the firing pin of a revolver protruding from Davis' waistband.
(6) Sgt. Howard thereupon closed the distance between himself and Davis, pulled the revolver out of Davis' waistband, and asked Davis if he had a permit to carry the gun. Davis responded in the negative and was thereupon arrested by Sgt. Howard for carrying a pistol without a permit.
Andre Kyles was called as a defense witness and testified, in pertinent part, as follows:
(1) He was walking with Davis, an acquaintance of his, when, at approximately the middle of the 1800 block on Broadway, he saw Sgt. ...