United States v. Hallman, 15848.

Citation365 F.2d 289
Decision Date23 August 1966
Docket NumberNo. 15848.,15848.
PartiesUNITED STATES of America v. Terrell Henry HALLMAN, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Michael A. Querques, Orange, N. J. (Querques & Isles and Harvey Weissbard, Orange, N. J., of counsel and on the brief), for appellant.

Robert A. Baime, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before KALODNER and HASTIE, Circuit Judges, and WRIGHT, District Judge.

OPINION OF THE COURT

KALODNER, Circuit Judge.

The defendant, Hallman, was indicted on four counts charging bank robbery and possession, in violation of 18 U.S. C.A. § 2113(a)-(d), arising out of the robbery, on January 6, 1965, of the New Jersey Bank and Trust Company, Allwood Office, Clifton, New Jersey.

Prior to trial, Hallman moved to suppress evidence, i. e., thirteen twenty-dollar bills, obtained from him allegedly as a result of an illegal arrest and search of his person on January 29, 1965, the date alleged in the possession count of the indictment. This motion was denied after hearing. At the trial, the questioned bills were received in evidence against Hallman, over objection. The jury found Hallman guilty on the count charging possession, 18 U.S.C.A. § 2113(c), and not guilty on the other counts of the indictment.

On this appeal from the judgment of conviction entered on the jury verdict, and sentence, Hallman reasserts the illegality of the manner in which the twenty-dollar bills were obtained from him. He further complains that (a) although in its answer to a bill of particulars the government denied that it had any confessions or admissions from him, it was permitted to introduce into evidence an exculpatory statement made by him which the government contended was false; (b) his identification by the robbed bank's employees was too speculative to be admitted; (c) remarks made by the prosecuting attorney were prejudicial; (d) the trial judge did not fairly state the evidence in answer to a question submitted by the jury during its deliberations; and (e) the evidence was inadequate.

We address ourselves to the question raised initially by the motion to suppress. On this score, we are of the opinion that the motion should have been granted and the evidence illegally obtained should not have been used against Hallman at the trial.

The critical events occurred on January 29, 1965. On that day, and for some time previous, Hallman had the status of a parolee under the New Jersey penal system. His parol officer was one Anthony Provenzano. On that day, also, Detective Trainor, of the New Jersey State Police, and Agent Lelwica, of the Federal Bureau of Investigation, were working together: each had been engaged in the investigation of bank robberies, and at least Lelwica had had Hallman under observation for some time.

At about 1:15 o'clock p. m., on January 29, Trainor and Lelwica spoke to Provenzano on the telephone. Provenzano was informed that there was reasonable information that Hallman was in violation of his parole in that he was associating with known criminals and was not gainfully employed. Provenzano understood that these officers wanted him to have Hallman come in so that they could speak to him and so that he could be asked to voluntarily submit to a "line-up." Specifically, Trainor admitted mentioning the "line-up" to Provenzano in the course of the telephone conversation. Provenzano told Trainor he would try to contact Hallman and have him come in, and that he would call Trainor back.

Provenzano spoke to his supervisor, who left the matter in his hands. He tried to reach Hallman by telephone at his home and, being unsuccessful, wrote him a letter. His purpose in doing this was to have Hallman come in so that he could inquire concerning violation of his parole and to ask him to voluntarily submit to a "line-up." Provenzano then called Trainor. According to Trainor, Provenzano told him that he was unable to reach Hallman and that in the event that he, Trainor, chose to seek Hallman out at his home or elsewhere or if he was to come across Hallman anywhere up to four o'clock, when Provenzano would leave his office, he was to bring Hallman to Provenzano. Provenzano was uncertain whether he had told Trainor to bring Hallman in or to have him report, but he did not tell Trainor to arrest or apprehend Hallman, nor was Hallman's parole then revoked.

Trainor requested Lelwica to assist him in searching for Hallman, because Lelwica was familiar with Hallman's general neighborhood and "hangouts." Lelwica, accompanied by another agent occupied one vehicle, and Trainor, accompanied by two Englewood Police Department officers, occupied another. Within fifteen minutes, Lelwica observed a vehicle he recognized as belonging to Hallman's girl at the intersection of Franklin and Lake Streets, Belleville. Lelwica's vehicle entered Lake Street, a one-way three lane street with parking on both sides, and pulled over to the curb. Trainor's vehicle pulled up on Lake Street alongside Lelwica's car. Trainor said that as he turned into Lake Street he observed Hallman come out of a store and get behind the wheel of his girl's car. Lelwica identified Hallman and the vehicle, and Trainor said that he would wait for Hallman to pull up in back of him, which he did. Lelwica testified that he saw Trainor "place Mr. Hallman under arrest." Trainor testified that he identified himself to Hallman and asked him to get out of his car. Hallman did so and was "frisked" by one of the officers. Trainor testified he then "advised" Hallman "to...

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    ...See Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975); United States v. Hallman, 365 F.2d 289 (3d Cir. 1966); State v. Sears, 553 P.2d 907 (Alaska 1976); State v. Shirley, 117 Ariz. 105, 570 P.2d 1278 (App.1977); People v. Coffman, 2 Ca......
  • Ralph Martinez, In re
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    ...an intrusion into the parolee's privacy cannot be properly justified by the needs of the parole system. (See also United States v. Hallman (3d Cir. 1966) 365 F.2d 289 (parole officer was acting merely as 'agent, tool or device' of arresting police officers and thus his search of parolee wit......
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    ...and properly condemned such sham or pretext arrests (Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Hallman, 3 Cir., 365 F.2d 289; United States ex rel. Randazzo v. Follette, 2 Cir., 418 F.2d 1319, 1323; People v. Way, 65 Misc.2d 865, 319 N.Y.S.2d 16; Peo......
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