Thomas v. United States

• Citation: 281 F.2d 132
• Decision Date: 14 July 1960
• Docket Number: No. 16404.,16404.
• Parties: Patrick Fagan THOMAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

281 F.2d 132 (1960)

Patrick Fagan THOMAS, Appellant, v. UNITED STATES of America, Appellee.

No. 16404.

United States Court of Appeals Eighth Circuit.

July 14, 1960.

Robert J. O'Hanlon, St. Louis, Mo., for appellant; Sorkis J. Webbe and Robert J. O'Hanlon, St. Louis, Mo., on the brief, for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; William H. Webster, U. S. Atty., and John A. Newton, St. Louis, Mo., on the brief.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment and sentence of imprisonment for one year, entered on December 17, 1959, upon a jury verdict finding the defendant (appellant) guilty under an information charging that on March 14, 1959, in St. Louis, Missouri, he had in his possession two cases of Vel beauty soap, of a value not in excess of $100, which had been unlawfully taken from an interstate shipment of freight, and which soap he knew had been stolen — a violation of Section 659, Title 18 U.S.C., which makes it a federal offense to have possession of such goods, knowing them to have been stolen.

The only evidence produced at the trial of the defendant was that of the Government. At the close of the Government's evidence, the defendant rested his case. While the admissibility of some of the evidence is challenged by the defendant, particularly that obtained as the result of a search and seizure, no question of the sufficiency of the evidence to sustain the conviction is raised.

The factual situation out of which the case arose, as shown by the record on appeal, is substantially as follows:

On March 10, 1959, a trailer of the Melvin Trucking Company was loaded with Vel soap at a plant of the Colgate Palmolive Peet Company in Indiana and was driven to St. Louis, Missouri. The shipment was consigned to Colgate Palmolive Peet Company, Kansas City, Kansas. The sealed trailer was parked in St. Louis on a truck parking lot of the Eaton Truck Lines on the evening of March 11, 1959. While the trailer was standing there, a young Negro, Reuben Reece, broke the seal on the back of it and stole two cartons of the soap. He took the soap to his home, which was nearby. In the early morning of March 13, 1959, two uncles of Reuben — Albert and Henry Reece — were shown the soap in the house by James Reece, Reuben's father. Albert Reece, one of the uncles, took a bar of the soap to Ell's Confectionery store, located on Broadway, several blocks from the house. The defendant was alone in the front part of the store. Albert showed him the bar of soap and asked if he would buy such soap. The defendant offered to pay five cents a bar, and told Albert to go back and get the soap and bring it down before the defendant's wife got up. "He kind of indicated she was back in the back part of the store asleep." Albert and his brother Henry got the soap, carried it down to Ell's Confectionery, and delivered it to the defendant, who paid Albert, for about 95 bars, $4.65 less a $3.50 bill that Albert owed him, or a net return of $1.15 in cash for the soap stolen by Reuben on March 11.

On March 13, 1959, at about 9 p. m., Reuben Reece and four other Negro boys or young men returned to the trailer, opened it, and stole seven cartons of Vel soap, of which Reuben took two. The afternoon of the next day, Henry Reece took two cartons of the Vel soap to Ell's Confectionery, and sold them to the defendant for $7.50.

On March 17, 1959, Sergeant Kuda, of the St. Louis Police Department, and Special Agent Bailey M. Stanfield, of the Federal Bureau of Investigation, interviewed Henry and Albert Reece, who told the officers that they had sold Vel soap on two occasions to a man named Pat who operated a confectionery — that they sold soap to him on Friday of the preceding week and also on Saturday. They described generally the location of the store. On March 18, 1959, Sergeant Kuda and Special Agent Stanfield went to call on the defendant at the confectionery store at about 1:30 p.m. He was not in the store, but they found him in a nearby restaurant. The Sergeant stepped partly inside the restaurant, holding the door open, and motioned to the defendant — whom he knew and who was seated at a back table — and said he wanted to see him. The defendant came out, and the Sergeant, when outside of the restaurant, said to the defendant that he wanted to talk to him and they would go over to the confectionery store. There was no objection voiced by the defendant. He went with the Sergeant and Special Agent Stanfield to the store. While standing with the defendant in the store proper, in front of the counter, the Sergeant told the defendant that they "had two colored men under arrest who said that they had sold him some soap." The defendant replied that "he did not buy any soap from any colored people." The Sergeant then told him he was under arrest. Some people were coming into the store, and the Sergeant suggested that the defendant and the officers go back into a back room and talk things over. The defendant made no objection and led the way into the living quarters behind the store. After the defendant had again stated that he bought no soap from colored people, the Sergeant noticed in a closet or hall off the living quarters, an open-mesh sack with two cases of Vel soap in it. The Sergeant picked up the sack of soap, and said, "What about this?" The defendant said, "I want to see my lawyer,"¹ or, "I want to see my lawyer, I have nothing further to say."² After the arrest and interview with the defendant, he and the soap were taken to police headquarters.

The defendant had, prior to trial, made a timely motion to suppress the evidence procured by Police and the Federal Bureau of Investigation, but, after a full hearing on the motion, it was denied. It was renewed at the trial, but the evidence was admitted.

On behalf of the defendant, it is contended that the trial court erred in the following respects:

1. In overruling the defendant's motion to suppress all evidence obtained as the result of the search and seizure following his arrest on March 18, 1959.

2. In admitting the testimony of Albert Reece to the effect that, while in the office of the United States Commissioner, the defendant said to Reece that he and his brother would probably get a parole because they had not been in trouble before, but that he had been and would probably "do time" and was going to plead not guilty.

3. In admitting in evidence the statement of Special Agent Stanfield that the defendant, when confronted with the sack of soap, said he wanted to see a lawyer and that he had nothing further to say.

4. In overruling the objection to the evidence of Special Agent Stanfield that, as the defendant, his escort and the seized soap passed through the store, the defendant asked the woman known as Elzie Shelby — who apparently owns the confectionery and is "a friend" of the defendant — to call two well-known lawyers of St. Louis.

5. In overruling defendant's motion for a mistrial during the Government's closing argument because Government counsel said that the Negro boys who stole the soap evidently knew where to sell the stolen merchandise.

6. In instructing the jury, in substance, that they might find the defendant guilty if he either knew or was aware of facts from which he reasonably could have inferred that the property was stolen.

The vital question in this case is whether the District Court erred in refusing to suppress the evidence procured by the officers, who, without a warrant, arrested the defendant, and, without a search warrant, seized the stolen soap discovered in the living quarters in the back part of the confectionery store.

The position of the defendant is that the officers did not go to the confectionery to question him, but to search the...