United States v. Sykes, 14670.

• Decision Date: 23 July 1962
• Docket Number: No. 14670.,14670.
• Citation: 305 F.2d 172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Richard SYKES, John Brenton Preston, and Kenneth Ray Strunk, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

305 F.2d 172 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. John Richard SYKES, John Brenton Preston, and Kenneth Ray Strunk, Defendants-Appellants.

No. 14670.

United States Court of Appeals Sixth Circuit.

July 23, 1962.

Robert D. Leggett, Newport, Ky., John R. Elfers, Covington, Ky., for appellants.

Bernard T. Moynahan, Jr., U. S. Atty., N. Mitchell Meade, Asst. U. S. Atty., Lexington, Ky., for appellee.

Before MILLER, Chief Judge, SIMONS, Senior Circuit Judge, and DARR, Senior District Judge.

SHACKELFORD MILLER, Jr. Chief Judge.

The appellants, John Richard Sykes, John Brenton Preston and Kenneth Ray Strunk, were found guilty by a jury in the District Court of conspiring to rob the Union Bank of Berry, Berry, Kentucky, a state bank insured by the Federal Deposit Insurance Corporation, in violation of Sections 371 and 2113, Title 18 United States Code. There was no count charging the substantive offense of robbing the bank and, in fact, the bank was not robbed. Each appellant received a sentence of five years imprisonment.

At the trial, the Government introduced evidence showing the following facts.

On or about 3 A.M. on January 20, 1961, police officers of the city of Newport, Kentucky, went to 10th & Monmouth Streets in Newport in response to a call stating that there were three men in an automobile which had been parked there since 10 P.M. They questioned the men, who gave evasive and unsatisfactory answers as to why they were there at that time of night. One said he hadn't worked for six months and the other two said they hadn't been working. They had twenty-five cents in money among the three of them. The officers arrested the men, who are the appellants in this case, placed a charge of vagrancy against them, and impounded the automobile. In searching the automobile the officers found two loaded revolvers in the glove compartment of the car, and an additional charge was placed against the appellants of carrying a concealed and deadly weapon. In a further search of the automobile the officers found in the luggage compartment two ladies stockings with upper half tied in a knot at the end, one with eye holes, a license plate for Mason County, Kentucky, which had been illegally manufactured and which had small hooks attached to it which would permit it to be hung over another license plate, two pillow slips, two pieces of rope, a length of fishing cord, gloves and four caps, two of which had been cut so they could be pulled further down on the head. The case having been adopted by the United States Government, no disposition was made of the two charges in the Newport Police Court.

Appellants moved in the District Court to suppress the evidence concerning the articles found in the car. The District Judge, after hearing the evidence concerning the arrest of the appellants and the search of the car, overruled the motion.

Appellants contend that the motion to suppress evidence should have been sustained in that it was obtained through an illegal search of the automobile without a warrant. Although there was no warrant for the search of the automobile, the Government contends that the search was legal because it was incident to a lawful arrest. Under this well established rule, a search without a warrant is dependent initially upon a lawful arrest. United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. Accordingly, we direct our inquiry to the question of whether the arrest was lawful. In the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210; Miller v. United States, 357 U.S. 301, 305, 78 S.Ct. 1190, 2 L.Ed. 2d 1332.

Appellants contend that since the charges in the state court were not pressed and there has been no judgment of conviction thereunder, it has not been established that the arrest was lawful. On the other hand, the appellants have not been acquitted under the state charges so as to make the rulings in Billings v. Commonwealth, 223 Ky. 381, 3 S.W.2d 770, and in Parrott v. Commonwealth (Ky.), 287 S.W.2d 440, applicable. The Kentucky Court of Appeals held in those cases that an acquittal in the state court on the state charge made the evidence produced by a search without a warrant following the arrest inadmissible in another case being prosecuted on a different charge based on what was found in the search.

In the absence of an acquittal under the original state charge the question of the validity of the arrest is an open one for the federal court to decide upon the basis of the evidence presented. Under the circumstances, we think that the ruling of the Kentucky Court of Appeals in Davis v. Commonwealth, 280 S.W.2d 714, is applicable wherein it was held that the legality of an arrest is controlled by Section 36, Kentucky Code of Criminal Practice. Section 36 provides that a peace officer may arrest without a warrant when a public offense is committed in his presence. This has been construed by the Kentucky Court of Appeals to authorize an arrest if the officer acted in good faith and upon reasonable grounds to believe that a public offense was being committed in his presence. Sizemore v. Hoskins, 314 Ky. 436, 235 S.W.2d 1011. The material facts leading up to the arrest were not in dispute. They were summarized by the District Judge in overruling the motion to suppress the evidence, as follows:

"THE COURT: The Court is of the opinion that the officers in making this search, acting under instructions from their superior, on the basis of the circumstances surrounding these defendants and their location at that time, 3 o\'clock in the morning, in a downtown section, where business houses were located, near a night club, had been there some four or five hours on the street, with these three men loafing about it, without any apparent reason; then when questioned, gave illogical or rather vague and irresponsible and suspicious reasons for why they were there present, and the officers received a call alerting them to these suspicious circumstances — I think they were justified in making an arrest for vagrancy and they searched the car as a result of the arrest. Let the motion be overruled."

Under these facts we are of the opinion that the District Judge was not in error in ruling that the arrest was valid and that the search was properly made as an incident of the arrest. Probable cause justifying an arrest or search may exist even though the facts may not be such as to prove guilt beyond a reasonable doubt. United States v. Nicholson, 303 F.2d 330, C.A.6th, 1962.

In addition to the article found in the automobile, a bartender at the Depot Cafe testified that the three appellants would occasionally be together in the cafe and on one occasion told him while he was serving them drinks at a table that "they had a big job planned." Strunk testified that shortly before the arrest he and Preston were in the back room of the Depot Cafe and Sykes came back there and said, "I have the opportunity to make $5,000." Preston testified substantially the same, and added that Sykes wanted their opinion as to whether or not he should go through with it, whereupon Strunk said, "Well, if you are going to make $5,000, you must be going to rob a bank," to which Sykes replied, "Well, how did you know?". Sykes testified that he had been approached by some men to drive a car for them on a bank robbery and that he went to Strunk and Preston and had the conversation above referred to. The appellants claim that they emphatically rejected the suggestion, but the credibility of this part of their testimony was for the jury.

There was also testimony from a resident of the town of Berry, a very small town in Kentucky, that he saw Sykes and a man who resembled Preston on two different occasions on the same day, shortly before their arrest, driving slowly through the town of Berry, looking from side to side and observing things. In a statement made to an agent of the F.B.I. Sykes said that he had intended to rob the bank at Berry, Kentucky, and described to the agent...