Schook v. United States

• Decision Date: 26 October 1964
• Docket Number: No. 17515.,17515.
• Parties: John Paul SCHOOK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

337 F.2d 563 (1964)

John Paul SCHOOK, Appellant, v. UNITED STATES of America, Appellee.

No. 17515.

United States Court of Appeals Eighth Circuit.

October 26, 1964.

Robert J. Robinson of Evans & Dixon, St. Louis, Mo., court-appointed lawyer, made argument for appellant and filed brief.

Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed printed brief, with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Defendant was tried to a jury, found guilty, and sentenced to a term of two years in the custody of the Attorney General for violation of § 902(e) of the Federal Firearms Act, 15 U.S.C.A. §§ 901-909.¹

The indictment charged defendant with unlawfully transporting a shotgun in interstate commerce while under charge by information in the Circuit Court of the County of St. Louis, Missouri of burglary in the second degree, a felony punishable by imprisonment for a term exceeding one year.

The issues on appeal are:

1. The admission in evidence, over defendant's timely motion to suppress, of the shotgun seized from the vehicle in which defendant was riding, without warrant for arrest or search.

2. The validity of the indictment which alleged defendant was under charge by "information" rather than "indictment".

For reasons hereafter set forth, we affirm the judgment of conviction.

The arrest was made without a warrant. Thus, the crucial question is whether the arresting officer had "probable cause". This Court recently held in Pigg v. United States, 337 F.2d 302 (8th Cir. 1964) that "This issue, factual in nature, must be resolved from the facts and circumstances of each particular case, Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302 93 L.Ed. 1879 (1949); Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742, 744 (1959) citing cases; Hawkins v. United States, 8 Cir., 288 F.2d 537, 541 (1961), cert. denied, 366 U.S. 975, 81 S.Ct. 1943 6 L.Ed.2d 1264 (1961); Mueller v. Powell, 8 Cir., 203 F.2d 797 (1953)."

The evidence viewed most favorably to the government's case for validity of the arrest, search and seizure discloses the following sequence of events. Officer Logan, a patrolman of seven years' experience with the Alton, Illinois police department was cruising in the downtown area of Alton about daybreak, approximately five o'clock a. m., on August 15, 1963. On duty and in uniform, he was driving a white patrol car with official markings which was equipped with a flashing red light, or "fireball", on the center of its roof. His attention was attracted by an occupied Plymouth automobile because it had stopped at an intersectional stop sign for an undue period of time. This caused him to check the automobile's license number. He thought he recognized the license number from the "hot sheet", a list furnished to the Alton police department by nearby authorities indicating vehicles used by known burglars who might be "working" in the area. Officer Logan immediately radioed headquarters and confirmed the fact that the Plymouth's license number was on the "hot sheet".

Officer Logan observed that the driver of the Plymouth appeared to be alone. After leaving the stop sign the Plymouth was driven at a speed that exceeded the limit by some five or ten miles per hour. Officer Logan decided to question the driver of the Plymouth primarily because the automobile bore a license plate issued to a suspected burglar. From the rear of the pursued automobile, he blinked his headlights and flashed his white spotlight. Under such routine circumstances, it was the policy of Alton police to refrain from sounding their sirens during the early morning hours. When the automobile did not stop at his light signals, Officer Logan pulled alongside the driver of the automobile and sounded his horn. The driver turned his head to the opposite side, so his face could not be seen, whereupon Officer Logan fell behind and again signalled with his lights for the driver to stop. The driver again refused to heed the signals. Officer Logan then pulled alongside the automobile once more and veered his car towards it, but the driver failed to stop and swerved his vehicle towards the police car. By this time, the automobile had approached a bridge spanning the Mississippi River from Alton, Illinois to the State of Missouri. When Officer Logan radioed headquarters that he was going to pursue the automobile across the state line, two additional Alton police cars joined in the chase.

When the automobile reached the bridge, its speed was greatly accelerated, whereupon Officer Logan sounded his siren and turned on his flashing "fireball". While both vehicles were on the bridge, Officer Logan, for the first time, noticed a second occupant in the automobile, later ascertained to be defendant. The defendant appeared to be handling a shotgun, and Officer Logan radioed to the police cars following that one suspect was armed.

As the automobile arrived at the Missouri side, Officer Logan saw defendant open its door and throw away numerous, unidentified objects. Officer Logan then fired three shots in the air. The driver still did not heed his warning, so he fired one shot directly at the automobile. After the last shot, the driver finally stopped the automobile about one-half mile from the bridge in the State of Missouri. A Missouri state police car, manned by two patrolling officers, had noticed the Alton police car crossing the bridge with its emergency signals in operation and proceeded immediately to the scene of the capture.

Both the driver and defendant were arrested by Officer Logan for "suspicion of burglary". Their automobile was immediately searched and the shotgun, admitted into evidence over objection below, was discovered dismantled lying behind the rear seat on the window ledge.

A police officer has no right to make an arrest without warrant based on bare suspicion of guilt. We so held in reversing the conviction in Pigg v. United States, supra. In the Pigg decision, we reviewed Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), as well as other leading authorities which have condemned the practice of attempting to justify probable cause by utilization of the fruits of the search or any other after acquired information.

Reasonable grounds for suspicion when accompanied by facts or circumstances strong enough to justify a reasonably cautious man to believe the guilt of the suspect, suffice to constitute probable cause necessary for arrest without warrant. The Supreme Court in Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790 (1925) said, "The substance of all the definitions of probable cause is a reasonable ground for belief in guilt." See also Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623 (1963); Henry v. United States, supra, 361 U.S. at 102, 80 S.Ct. at 171, citing cases; Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 3 L.Ed.2d 327 (1959); and Mueller v. Powell, 203 F.2d 797, 800-801 (8th Cir. 1953).

Officer Logan had reasonable grounds for suspicion when he became aware that the vehicle in which defendant was a passenger bore a license plate issued to a burglar who might be operating in the area. Officer Logan's suspicions ripened into probable cause by the events that immediately followed: The deliberate refusal to stop upon use of conventional signals by the investigating officer; the furtive conduct of the driver in turning his face to avoid recognition; the defendant's concealing himself in the fleeing automobile until crossing the bridge en route to desired jurisdictional sanctuary in the State of Missouri and then brandishing a shotgun; the flight across the bridge at excessive speed; the discard of objects from the automobile after crossing the bridge; continued refusal to stop even after the police officer sounded his siren, flashed his "fireball", and fired three warning shots in the air. All of this conduct combined more than justified the arresting officer in reasonably believing the occupants of the automobile were escaping from or in the process of committing a felony.

Security of the public demands an arrest under such positive circumstances of wrongdoing. Officer Logan would have been derelict in his duty had he failed to initially undertake to investigate the activity of defendant and his companion or to subsequently abandon the chase without effectuating an arrest. Any reasonable, prudent and cautious witness to these events would have been justified in concluding that the suspects were engaged in criminal activity at the time of their apprehension, thereby vesting the arresting officer with "probable cause".

The defendant strongly urges that the arrest was perfected when Officer Logan first attempted to stop the automobile in which he was riding. This conclusion is unsupported by the evidence. The facts indicate that Officer Logan originally intended only to question the driver of the automobile believed to be owned by a suspected burglar. Executing permissible police procedure to safeguard the community against criminal activity, the police officer was only attempting to routinely question persons under suspicious circumstances to ascertain their identity and actions. Arrest connotes restraint and not temporary detention...