Haas v. United States, 17873.

Decision Date12 April 1965
Docket NumberNo. 17873.,17873.
Citation344 F.2d 56
PartiesErvin Albert HAAS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

J. Roger Edgar and James W. Singer, III of Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., made argument for appellant and filed brief with Ramon J. Morganstern of Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo.

Donald L. Schmidt, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief.

Before VOGEL, RIDGE and MEHAFFY, Circuit Judges.

VOGEL, Circuit Judge.

Ervin Albert Haas, defendant-appellant herein, was convicted in the United States District Court for the Eastern District of Missouri with having violated 18 U.S.C.A. § 2113 (a), in that on or about September 2, 1964, by force and violence and by intimidation he took from Judith Janos, an employee of the Bissell Hills Branch of Hamiltonian Federal Savings and Loan Association approximately $1,396 belonging to the Hamiltonian Federal Savings and Loan Association, which was a Federal Savings and Loan Association authorized and acting under the laws of the United States, the accounts of which were insured by the Federal Savings and Loan Insurance Corporation. Upon conviction by a jury and a sentence of 20 years' imprisonment, Haas, through court-appointed counsel, prosecuted this appeal.

Prior to trial defendant filed a motion for return of property and to suppress evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The basis of his motion was that certain enumerated property was taken from a room rented by him at 737 Limit Street, University City, Missouri on the evening of September 3, 1964, in violation of his rights under the Fourth Amendment to the Constitution of the United States. Hearing on the motion was held by the District Court on October 16, 1964. Testimony offered at the hearing indicated the following: Mrs. Molly Larner owned a six-apartment building at 737 Limit Street in University City, Missouri, and that in the latter part of August 1964 she placed an advertisement in the newspapers stating that she had a room in her apartment for rent. The defendant answered the advertisement on Sunday August 30, 1964, and at that time rented the room on a month to month basis. He moved in immediately. Mrs. Larner described the room rented to the defendant as follows:

"Q. So he started living in that room in your apartment on that same day, on Sunday?
"A. The same day.
"Q. Can you describe where that room is situated in respect to your apartment?
"A. Well, my apartment is straight rooms. The living room, you come in from the hall in the living room.
"Q. Yes?
"A. After is the dining room, then the bedroom, that is the room he has got, the bedroom, the back bedroom.
"Q. As you enter the door to your apartment, that is the living room?
"A. Yes.
"Q. Next to that is the dining room?
"A. Yes.
"Q. And you have a little corridor off the dining room?
"A. Just a little hall you walk in.
"Q. And beyond that was the room that he rented?
"A. Yes.
"Q. In your apartment.
"A. Yes."

William K. Bock, Special Agent, FBI, testified that on the afternoon of September 3, 1964, in company with two other officers, he waited in the living room of Mrs. Larner's apartment. He did not go into the room rented by the defendant at that time. They saw the defendant coming up the walk to the house. He opened the door and entered the living room, whereupon Bock identified himself, told the defendant that a warrant had been issued for his arrest in connection with the Hamiltonian Savings and Loan robbery, that any statement he made could be used against him in court, and of his right to have an attorney prior to making any statement. Defendant was searched and handcuffed, whereupon the officers took him from the living room in which the arrest was made to the room in the back which the defendant had rented, the door to which was completely open. Therein they found and took from the closet a gray suit that generally fit the description of the clothing worn by the robber, a black zipper brief case which had the writing on it "R and G Food Club" which fit the description of the briefcase carried by the robber, a small gas gun which the defendant had advised them was in one of the dresser drawers and which fit the description of the gun used by the robber. They also found and took some pieces of notepaper and a carbon copy of a rental agreement for the rental of an automobile, a white Chevrolet, from Budget Rent-A-Car. They also found a deposit slip reflecting an $800 deposit on account No. 738138 at the North County Bank and Trust Company dated September 2, 1964.

This witness brought out that the only way you could get into the bedroom rented by the defendant was to walk through the living room, the dining room and a hallway of about five or six feet and then into the bedroom. Arrest of the defendant was made pursuant to a proper arrest warrant but search of the premises was without a search warrant. There is no evidence that the defendant consented to the search of his room and the evidence is positive that the officers did not search it until after the defendant had been arrested in the living room with warrant for arrest and told the reason therefor.

On October 26, 1964, the trial court overruled defendant's motion to suppress the evidence obtained through the search of his room and trial before a jury began on November 2nd. During the trial the government introduced into evidence the articles and clothing found and taken from the defendant's room on September 3, 1964. Defendant was identified by the teller at the Savings and Loan Association who was held at gunpoint during the robbery. This witness also gave corroborative testimony with reference to the suit worn by the robber at the time of the commission of the crime, the use of a black zipper briefcase with "R and G Food Club" thereon, and the use of a gun at least similar in appearance to the one taken from his room. A bank teller employed at the North County Bank identified the defendant as the Ervin A. Haas who had deposited $800 in currency in his account at such bank on the afternoon of the robbery shortly after its occurrence. Other testimony indicated the rental by the defendant of a white Chevrolet answering the description of the vehicle used by the robber after commission of the crime. Defendant did not testify and offered no testimony in his own behalf.

Defendant does not contend that his arrest was illegal but that the search following his arrest was a violation of his rights under the Fourth Amendment and that the trial court erred in denying the motion to suppress. The prohibition of the Fourth Amendment is against "unreasonable searches and seizures". Defendant cites first the recent case of Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. That case involved the search of the defendant's motor car and the seizure therefrom of a number of articles, including guns, masks and other equipment which might be used in the commission of crime. The petitioner and his associates had been arrested for vagrancy, searched for weapons and taken to police headquarters. Their automobile had not been searched at the time of the arrest but had been driven by an officer to the police station and then towed to a garage. Thereafter some of the police officers went to the garage, searched the car and found the guns, etc. The court there held at page 884 of 84 S.Ct. at page 781 of 11 L.Ed. 2d:

"* * * that the search was too remote in time or place to have been made as incidental to the arrest and concluded, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible."

In so holding, the court, however, said at page 883 of 84 S.Ct., at pages 780-781 of 11 L.Ed.2d:

"* * * Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392 34 S.Ct. 341, 344, 58 L.Ed. 652, 655, L.R.A. 1915B, 834 (1914); Agnello v. United States, 269 U.S. 20, 30 46 S.Ct. 4, 5, 70 L.Ed. 145, 148, 51 A.L.R. 409 (1925). This right to search and seize without a search warrant extends to things under the accused\'s immediate control, Carroll v. United States, supra, 267 U.S. 132 at 158 45 S.Ct. 280, at 287, 69 L.Ed. 543, at 553, and to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U.S. at 30 46 S.Ct. at 5, 70 L.Ed. at 148; Marron v. United States, 275 U.S. 192, 199 48 S.Ct. 74, 77, 72 L.Ed. 231, 238 (1927); United States v. Rabinowitz, 339 U.S. 56, 61-62 70 S.Ct. 430, 433, 94 L.Ed. 653, 657-658 (1950). The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused\'s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U.S., at 31 46 S.Ct. at 5, 70 L.Ed. at 148. Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they
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