Miller v. United States, 22443.

Decision Date18 April 1966
Docket NumberNo. 22443.,22443.
Citation356 F.2d 63
PartiesLawrence Reginald MILLER, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Wm. R. VanDercreek, Dallas, Tex., for appellant.

B. H. Timmins, Jr., Bailey F. Rankin, Asst. U. S. Attys., Dallas, Tex., Melvin M. Diggs, U. S. Atty., for appellee.

Before JONES, Senior Judge,* and GEWIN and BELL, Circuit Judges.

Certiorari Denied April 18, 1966. See 86 S.Ct. 1357.

GEWIN, Circuit Judge.

Appellant Miller was tried and convicted by a jury in the United States District Court for the Northern District of Texas. The indictment contained five counts; Count 3 was dismissed on motion of the Government. Count 1 charged that Miller unlawfully received, concealed and retained, with intent to convert to his own use and gain, two .30 caliber Browning machine guns, two .30 caliber Browning automatic rifles, and one .45 caliber sub-machine gun, all being the property of the United States, in violation of Title 18 U.S.C.A. § 641. The other three counts charged that he knowingly and unlawfully possessed certain of said firearms in violation of Title 26 U.S.C.A. §§ 5851 and 5861. He was sentenced to serve a term of four years on all counts generally. The appellant specifies two errors: (1) his arrest was made without probable cause, because the Dallas city police utilized a traffic violation as a "ruse" for such arrest; and (2) the search of the automobile in which he was riding as a passenger and the contemporaneous seizure of the weapons found therein were made in violation of the Fourth Amendment to the United States Constitution.

A preliminary question is presented by the motion of the Government to dismiss the appeal because notice of appeal was not timely filed. After a hearing on this question pursuant to a § 2255 motion, the trial court concluded as follows:

"Although said defendant was advised of the right to appeal, he was not advised that such appeal must be perfected within ten days after judgment of conviction, in accordance with F.R.Cr.P. 37(a) (2); therefore, under the rule of this Circuit as stated in Boruff v. United States (5 Cir. 1962), 310 F.2d 918, the ten-day period within which he was required to file his notice of appeal did not commence to run until the date of entry of this order, when he was actually notified of his right to appeal and of his right to have counsel to assist him."

In view of the conclusion reached by the trial court, the motion to dismiss the appeal is DENIED. We proceed to consider the case on the merits.

On the evening of November 13, or in the early morning hours of November 14, 1963, ten military weapons, title to which was vested in the United States, were stolen from the Terrell National Guard Armory, Terrell, Texas. Some four to five days later, on the evening of November 18, 1963, around dusk, Miller was observed by four Dallas police detectives and an F.B.I. agent who had been assigned to the case, riding as a passenger in a light blue 1962 Ford Thunderbird as it came alongside a late model Dodge sedan near the intersection of Main and Trunk Streets in the city of Dallas. After the Thunderbird stopped near the Dodge, the F.B.I. agent and the city detectives witnessed a transfer of some "large weapons" from the Dodge to the Thunderbird, such transfer being made jointly by Miller and his companion. Shortly thereafter, the Thunderbird, with both Miller and his companion riding therein, pulled away from the Dodge. The Thunderbird was then followed by the F.B.I. agent and two of the city detectives in a city automobile, as well as by a Dallas police patrol car which had been instructed via radio to arrest the occupants of the Thunderbird. The vehicle in which the F.B.I. agent and city detectives were riding remained some distance behind the Thunderbird, but the police patrol car moved close behind the suspect's car at the intersection of Hall and Elm Streets. After stopping momentarily for a red light, the Thunderbird proceeded into the intersection against the red signal before it had changed to green in its traffic lane. The officers in the city patrol car, which was some ten to fifteen feet behind the Thunderbird flashed their red lights and blew their horn for the suspect's car to pull over to the curb. Instead of obeying these signals, the Thunderbird pulled away from the police patrol car and took flight, reaching a speed of about 60 miles per hour. A chase ensued through the city streets for several blocks. The police patrol car followed the Thunderbird with its siren on and red lights flashing. Two city detectives and the F.B.I. agent who observed a transfer of the weapons followed a further distance behind. Shortly thereafter, as the Thunderbird attempted to make a left turn, the driver evidently lost control and the vehicle collided with a telephone pole. The city police patrolmen immediately drove up to the scene of the accident and, after the occupants had emerged from their vehicle, arrested and searched them. The police patrolmen and the F.B.I. agent noticed several military weapons lying on the floor of the Thunderbird between the front and the rear seats. Although the weapons were partially covered by a "Dearborn stove," the muzzles of the firearms were in plain view from outside the automobile. Subsequently, the weapons were removed from the Thunderbird by the police patrolmen and turned over to the property custodian of the Dallas Police Department. They were later carefully identified and introduced in evidence at Miller's trial.

During the course of the trial these same weapons were on a table in open court in plain view of the court, counsel for both parties and the jury. After two of the witnesses for the Government had testified and positively identified the weapons, they were offered in evidence. During cross-examination of one Government witness, police officer J. B. Allen, counsel for Miller inquired extensively concerning the identity of the weapons, the presence of the officer's initials on them and the date when his initials were affixed. All of this occurred within the presence and hearing of the jury. Thereupon, counsel for Miller made a motion to suppress this evidence, claiming that Miller was unlawfully arrested and that the weapons were obtained by and through an unlawful search and seizure. No such motion was made prior to trial. The motion was overruled by the trial court.

The threshold question in this case is whether under these particular facts, Miller's arrest was made with or without probable cause. Secondly, it must be determined whether the search and seizure was reasonable. If the arrest was legal and the weapons obtained by a "reasonable" search and seizure, they are competent evidence; otherwise, not.

When an arrest is made without a warrant, as in the case at bar, there must be probable cause for making it. The arresting officers must possess knowledge of facts and circumstances gained from reasonably trustworthy sources of information sufficient to justify a man of reasonable caution and prudence in believing that the arrested person has committed or is committing an offense. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. See also Piland v. State, 162 Tex.Cr.R. 362, 285 S.W.2d 230; Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829; Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224; 6 Tex.Jur.2d Arrest, § 18; Wharton's Criminal Law and Procedure (Anderson 1957), Vol. IV, § 1612, p. 274. As stated by the Court in Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879, 1890, and approved in the Beck decision:

"The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers\' whim or caprice."

Miller forcefully contends that the Dallas police officers in question had no "probable cause" to effect his arrest in the first instance, but that even supposing they did, the arrest was nevertheless based on a "ruse," namely a "trumped-up" traffic charge which violated vital constitutional safeguards. Therefore, argues Miller, since the arrest was illegal ab initio, the weapons seen and subsequently taken into custody from the floorboard of the Thunderbird in which he was a passenger may not be received in evidence because they were not secured incident to a lawful arrest.

As to the asserted absence of "probable cause," we turn to the record to inquire into the validity of such a contention. So far as the record shows, the Dallas police patrolmen were cruising in the general vicinity where the suspect's car was located when they received information "over the air" to follow the suspect's automobile and to "arrest them."1 This testimony leads to the indelible conclusion that the officers who made the arrest were in possession of information from a trustworthy source sufficient to constitute "probable cause." True enough, the record is silent as to just what these policemen heard "over the air" other than the instruction to arrest the occupants of the Thunderbird. However, it is inconceivable to suppose that the information thus gained would not warrant a belief on the part of these officers, as reasonably prudent traffic patrolmen, that an arrest was justified. In fact, just the reverse is true. The police department of a large metropolis does not and can not operate on a segmented basis with each officer acting separately and independently of each other and detached from the central headquarters. There must be cooperation, co-ordination and direction, with some central control and exchange of information. See Wyndham v. United States, 197 F.Supp. 856, 859 (D.C.1961); Burke v. State, 76 Ga.App. 612, 47 S.E.2d 116, 126; Green v....

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