Lee v. United States

• Citation: 363 F.2d 469
• Decision Date: 24 August 1966
• Docket Number: No. 18184.,18184.
• Parties: Irving Joseph LEE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

363 F.2d 469 (1966)

Irving Joseph LEE, Appellant, v. UNITED STATES of America, Appellee.

No. 18184.

United States Court of Appeals Eighth Circuit.

July 21, 1966.

Rehearing Denied August 24, 1966.

Bernard J. Mellman, St. Louis, Mo., for appellant. Morris A. Shenker and Bernard J. Mellman, St. Louis, Mo., were on the brief.

Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., for appellee. Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief.

Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

Irving Joseph Lee was charged in an indictment with having, on the 29th day of September, 1964, received and concealed stolen securities having a value of more than $5,000, which were moving as and constituted interstate commerce from the state of Illinois to the state of Missouri and which he knew at the time of receiving and concealing the securities that they were stolen, all in violation of Title 18, U.S.C. § 2315. Following a verdict of guilty by a jury, he received a three-year sentence of imprisonment. A timely appeal was filed by him.

The facts giving rise to the indictment are as follows: The Fairview State Banking Company, Fairview, Illinois, was burglarized sometime between May 2 and May 4, 1964. The vault had been opened and nineteen safety deposit boxes were rifled, and upon examination certain United States Series E Savings Bonds and shares of corporate stock were found to be missing from some of the boxes. On September 18, 1964, the Federal Bureau of Investigation office in St. Louis received information from a confidential source that Lee was offering stolen securities for sale. Upon receipt of this information, the F.B.I. began a "loose" surveillance of Lee and ascertained where he lived, what kind of automobile he drove, learned that his house was up for sale and that he was an exbookmaker. During the following ten days more information was received about Lee from the same confidential source. The F.B.I. was informed that the securities which Lee was attempting to sell had been stolen from the burglarized bank in Illinois, and upon learning on September 28, 1964 that Lee would be in a certain restaurant on 12th Street in St. Louis, Missouri, again placed him under surveillance and found him in the company of another person, but he did not have any package, brief case or any type of folder that could have contained the stolen securities. The evening after that meeting in the restaurant, the F.B.I. received further information from the same confidential source, which had proved reliable in the past on other matters. Acting on this information, Agent Smith of the F.B.I., who for the first time saw Lee in the restaurant, went the next morning by Lee's home and found Lee's automobile there. During the afternoon of September 29, 1964, the F.B.I. received information that Lee was probably going to sell the securities or dispose of them at the St. Louis airport that evening. This was the first information that the F.B.I. had received that Lee would be at some specific place at a designated time with the securities actually in his possession. This information was disclosed to the United States Attorney in the late afternoon of September 29, 1964, but no application was made to the United States Commissioner for the issuance of a warrant for the arrest of Lee. At about 7:00 p. m. that same evening nine Special Agents of the F.B.I. proceeded to the airport in St. Louis, Missouri, and stationed themselves at various places inside and outside the airport building. At about 9:30 that evening Lee entered the airport lobby, carrying a tan leather brief case. He sat in a lounge chair for about five minutes, walked to a stairway, descended to a lower level and headed toward the east concourse, which contains rooms for departing and deplaning air passengers. At this point Agent Smith touched Lee on the shoulder, identified himself as an F.B.I. Agent, and asked Lee for identification. Lee responded he was "Irv Lee" and produced his credentials. Lee was then asked what he had in the brief case and he replied that he did not know. Agent Smith then placed Lee under arrest, took the brief case from him, handed it to Agent Morley, who opened the unlocked brief case, and briefly glanced at its contents. The agents escorted Lee to the First Aid room at the airport, where he was again informed that he was under arrest. The brief case was again opened and contained therein was found a number of United States Series E Savings Bonds and other securities, which had been in the safety deposit boxes in the Fairview Bank prior to the burglary. The face value of these securities was approximately $100,000.00. Lee was also searched and on his person were found a key to the brief case, a brown paper bag, and a white envelope on which was written "F 71", "R 849", "gate" and "Lee". After this search Lee was taken to the F.B.I. office. All of these exhibits, the brief case, the key, the envelope, the paper bag, and the bonds and securities contained in said brief case were introduced and admitted into evidence over the objection of Lee.

Evidence was also introduced that Transworld Air Flight 71, which originated in New York, was scheduled to arrive on September 29, 1964 at 8:49 p. m. but did not arrive until 9:58 p. m. It departed for Tulsa, Oklahoma, at 10:35 p. m. on the next leg of its flight.

Prior to trial, Lee filed a motion to suppress the evidence obtained as a result of the search made of his person on September 29, 1964, on the basis that said search and arrest were made without warrant; that if probable cause existed for the arrest of Lee, the Government had ample time to obtain a warrant; and that the subsequent arrest and search were violative of Lee's rights under the Fourth and Fifth Amendments to the United States Constitution. This motion was overruled by the trial court, which ruling Lee claims to be in error.

Lee also contends the Court erred in instructing the jury that it would be justified if it found that Lee was in possession of recently stolen property in inferring that Lee had knowledge that the property was stolen unless such possession was explained to the satisfaction of the jury, contending that such instruction improperly shifted the burden of proof and improperly required such explanation of possession to be proved to the satisfaction of the jury.

The third and last error asserted by Lee is the Court's failure to sustain Lee's motion for judgment of acquittal for the reason that the evidence was insufficient to justify a conviction and did not show that the stolen property was moving as and constituted interstate commerce, from the state of Illinois to the state of Missouri.

We affirm the conviction.

I.

The motion to suppress was properly overruled. F.B.I. Agent Smith had probable cause to arrest Lee as he had reasonable grounds to believe that Lee was committing a felony in his presence when he observed Lee at the time and place indicated by the previously reliable informant. The Agent certainly had facts and circumstances within his knowledge and reasonable trustworthy information sufficient to warrant a man of reasonable caution to believe that an offense was being committed. Lee does not seriously contend the absence of probable cause for the arrest but complains about the absence of a warrant of arrest. Where there is probable cause for the arrest of a person for a felonious offense, the absence of a warrant is immaterial, and, the arrest being valid, the search and seizure that followed was incidental thereto and valid. The mere fact that the Government might have had sufficient time to obtain a warrant for his arrest would not invalidate an otherwise legal arrest with the ensuing reasonable search and seizure.

Lee cites in support of his position Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Aquilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which cases deal with a search of the defendant's dwelling or his residence. The Johnson decision is not applicable as it applies to the search of a person's home admittedly made without probable cause where the Government attempts to justify the arrest by the search while justifying the search by the arrest. This was condemned by a 5-4 Court. But as noted in Johnson, pp. 14 and 15 of 333 U.S., p. 369 of 68 S.Ct.

"There are exceptional circumstances in which, on balancing the needs for effective law enforcement against the right of privacy, it may be contended that a magistrate\'s warrant for search may be dispensed with. But this is not such a case. * * * No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction * * *"

Aquilar is not applicable as it is concerned with a defective conclusionary warrant for search of a private dwelling. Lee cites no cases that advance the proposition that the arrest of an individual in a public area and a search of his person incidental thereto, based upon probable cause, is invalid, without a warrant where it had been practicable to obtain a warrant. As noted in Lefkowitz v. United States, 285 U.S. 452, at 465 and 466, 52 S.Ct. 420, at 423, 76 L.Ed. 877 (1932):

"The decisions of this court distinguished searches of one\'s house, office, papers or effects merely to get evidence to convict him of crime from searches such as those made to find stolen goods for return to the owner, * * *"

The Supreme Court in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) approved the subsequent search of the defendant's business premises, which were open to the public, without a warrant after a valid arrest made with a warrant. The search and seizure were incidental to the valid arrest and the officers were not bound to procure a search warrant, even though they had...