United States v. Theriault

• Decision Date: 24 April 1967
• Docket Number: Crim. No. 1296.
• Citation: 268 F. Supp. 314
• Parties: UNITED STATES of America, Plaintiff, v. Harry William THERIAULT, Defendant.
• Court: U.S. District Court — Western District of Arkansas

268 F. Supp. 314

UNITED STATES of America, Plaintiff, v. Harry William THERIAULT, Defendant.

Crim. No. 1296.

United States District Court W. D. Arkansas, El Dorado Division.

April 24, 1967.

Charles M. Conway, U.S. Atty., Ned A. Steward, Jr., Asst. U.S. Atty., Fort Smith, Ark., for plaintiff.

Robert C. Compton, Dennis L. Shackleford, El Dorado, Ark., for defendant.

MEMORANDUM OPINION

OREN HARRIS, Chief Judge.

The above styled case having come on to be heard on April 6, 1967, upon a Motion to Suppress filed by the defendant, the response of the Government thereto, and the briefs of the parties and the Court being sufficiently advised in the premises does hereby make the following findings of fact and conclusions of law with respect to the issues joined.

FINDINGS OF FACT

During the night of December 10, 1966, or early morning of December 11, 1966, the Bank of Parkdale, Parkdale, Arkansas, was burglarized and various properties of the bank, including large amounts of silver, were taken from the bank.

In the early afternoon of Sunday, December 11, 1966, the defendant, Henry William Theriault, aka Gerald Samuel Clevinger, along with a companion, William Johnson Huddleston, aka Glendale Sam Gillespie, registered into the Sahara Motel in DeWitt, Arkansas, and were assigned rooms 19 and 20 in the motel. While proceeding to their rooms, Mr. John Wofford, Manager of the Sahara Motel, saw that these two men were traveling in a late model pickup truck with a vinyl top and further observed when the men were entering their rooms that the defendant had an injured foot and had to be assisted into his room by his companion. As only Mr. Huddleston had entered the motel office for the registration process, this was the first time that Mr. Wofford had seen the defendant. Later that same afternoon, after the defendant and Huddleston had entered their rooms in the Sahara Motel, Mr. Huddleston left his room, when to a cafe adjoining the motel, and ordered some sandwiches to "go". While waiting for the sandwiches to arrive, Mr. Huddleston exchanged ten "Kennedy" half dollars for a $5.00 bill, but when the sandwiches arrived, Mr. Huddleston paid for them by negotiating a $20.00 American Express Travelers Check. After paying for the sandwiches, Mr. Huddleston left the cafe.

During this same afternoon of December 11, 1966, Mr. Kenneth Kirkpatrick, the operator of the cafe adjoining the motel, was in his trailer home near the cafe watching a newscast over television. In the course of this newscast Mr. Kirkpatrick heard that the Bank of Parkdale, Parkdale, Arkansas, had been burglarized the night before, that two men driving a late model pickup truck were suspected of being the burglars, and that a safe had fallen on the foot of one of the suspects. At the conclusion of the newscast, Mr. Kirkpatrick proceeded to his cafe in order to check his business and on arrival at the cafe learned of the passing of the "Kennedy" half dollars and the American Express Travelers Check earlier that afternoon by Huddleston. Because "Kennedy" half dollars were not frequently received in the course of Mr. Kirkpatrick's cafe business during that period of time and because the travelers check appeared to be improperly negotiated, Mr. Kirkpatrick became apprehensive about this incident. He, therefore, inquired of Mr. Wofford in the office of the Sahara Motel if the person who had negotiated the travelers check at his cafe was staying in the motel and was advised that Huddleston was a motel guest, along with a companion who had an injured foot. Mr. Kirkpatrick then returned to his cafe.

As Mr. Kirkpatrick was about to enter his cafe, he noticed that a DeWitt police officer, Officer Roy Munnerlyn, was drinking coffee in the cafe. Mr. Kirkpatrick beckoned to Officer Munnerlyn to leave the cafe and join him outside. As soon as Officer Munnerlyn joined Mr. Kirkpatrick outside the cafe, Mr. Kirkpatrick told the officer of the half dollars and travelers check passing incident that had occurred in his cafe earlier that afternoon, that the passer of the check was a guest at the Sahara Motel together with a companion who had an injured foot and told the officer of the news he had heard over television concerning the burglary of the Bank of Parkdale. Officer Munnerlyn upon receipt of this information became suspicious and entered his patrol car which was parked outside the cafe and placed a radio call to Stuttgart Police requesting information on the Parkdale Bank burglary. Stuttgart radio replied and Officer Munnerlyn learned that the Parkdale Bank had in fact been burglarized the night before, that two men driving a late model pickup truck, silver in color, with a vinyl top and missing bumper, were believed to have committed the burglary and that one of the men had an injured foot. As soon as this radio message was concluded, Officer Munnerlyn and Mr. Kirkpatrick proceeded to the motel where the two of them looked at the truck in which the defendant and Huddleston were traveling. Noting that the truck matched the description of the burglars' truck given over the radio even as to the missing bumper, Officer Munnerlyn requested Mr. Kirkpatrick to notify another DeWitt police officer, Officer Willie Ferguson, who lived in a house trailer adjoining Mr. Kirkpatrick's trailer, of the situation and to instruct Officer Ferguson to immediately come to the motel and assist Munnerlyn. Mr. Kirkpatrick proceeded to the trailer of Officer Ferguson, found Officer Ferguson in his trailer and instructed him to come to the motel and assist Officer Munnerlyn. Officer Ferguson immediately put on his uniform and sidearm and went to the side of Officer Munnerlyn. One of the officers then placed a radio call on Officer Munnerlyn's patrol car radio to the DeWitt Police Department radio operator and requested the operator to inform DeWitt Police Chief Verne Harrison of the facts known by the officers. While waiting for Chief Harrison, Officer Ferguson kept the motel under surveillance and at one point observed William Johnson Huddleston make a telephone call at a telephone booth adjacent to Huddleston's motel room and then observed Huddleston to return to his room.

At the time Huddleston and defendant registered into the Sahara Motel, J. D. Richardson, a guest at the motel, was in the motel office with Mr. Wofford and observed the same events observed by Mr. Wofford. Also, Mr. Richardson heard a newscast relating to the Parkdale Bank burglary. After talking among themselves and after examining the truck in which the defendant and Huddleston were traveling, seeing in the bed of that truck cutting torches, punch bolt cutters, and other tools useful in burglary and noting also in the bed of the truck a cardboard box containing rolls of coins, cloth money bags, and a closed black bag, Mr. Richardson and Mr. Wofford concluded that the defendant and Mr. Huddleston were the Parkdale Bank burglars. This conclusion was reached independently of any conclusion which Mr. Kenneth Kirkpatrick and Officers Munnerlyn and Ferguson might have reached in this same respect and was reached without the knowledge of those parties. After examining the truck, Mr. Wofford and Mr. Richardson sought out the Sheriff of Arkansas County to relate to him their conclusions, but having failed to locate the Sheriff, the two men returned to the Sahara Motel.

Pursuant to the radio request of Officers Munnerlyn and Ferguson, DeWitt Police Chief Verne Harrison was contacted at his home twenty miles from DeWitt by the DeWitt police radio operator and was advised that two men matching the description of the Parkdale Bank burglars were presently in DeWitt at the Sahara Motel. Prior to the time Chief Harrison received this message from the DeWitt radio operator, he had had the newscast on the Parkdale Bank burglary but had failed to retain any of the details given. As soon as Chief Harrison received the aforementioned message from his radio operator, he immediately attempted to contact Arkansas State Police Criminal Investigator James Beech and the Sheriff of Arkansas County to obtain additional information. Chief Harrison was unable to get in touch with James Beech but left word for Beech to come to DeWitt as soon as possible. The Arkansas County Sheriff was contacted but he could give Chief Harrison no information. The Sheriff did, however, advise Chief Harrison to proceed to the Sahara Motel and to contact him if the Chief needed any assistance there. Chief Harrison then drove to the police station in DeWitt, picked up his police car and arms and drove to the Sahara Motel. While at the police station, Chief Harrison was advised by DeWitt police radio operator that the defendant and Huddleston were going to leave the motel at 7:00 p. m., and that Chief Harrison should, therefore, hurry to the motel. The radio operator had learned this information earlier from the officers at the scene.

Upon arriving at the motel, Chief Harrison immediately drove his patrol car in front of the pickup truck of the defendant and Huddleston, in order to hinder a possible escape in the truck, got out of his patrol car and while standing in the driveway looked at the truck. Chief Harrison observed numerous tools in the bed of the truck, including cutting torches, punch bolt cutters, and other tools susceptible of being used for a burglary operation and also observed a cardboard box in the bed of the truck containing rolls of money, cloth money bags, and a closed black bag. Having concluded his inspection of the truck, Chief Harrison was joined by Officers Munnerlyn and Ferguson and the three of them took up positions outside of the two rooms, rooms 19 and 20, occupied by the defendant and Huddleston. Chief Harrison then instructed the Manager of the motel, Mr. Wofford, to telephone the defendant and Huddleston in their motel rooms, and advise them they were surrounded by the police and to come out with their hands up. Mr. Wofford...