371 F.2d 296 (7th Cir. 1966), 15223, United States v. Garrett

Docket Nº:15223-24-25.
Citation:371 F.2d 296
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert James GARRETT, Thomas Earl Simmons and William Earl Andrews, Defendants-Appellants.
Case Date:December 07, 1966
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 296

371 F.2d 296 (7th Cir. 1966)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert James GARRETT, Thomas Earl Simmons and William Earl Andrews, Defendants-Appellants.

No. 15223-24-25.

United States Court of Appeals, Seventh Circuit.

December 7, 1966

Rehearing Denied Jan. 23, 1967.

Page 297

Phillip H. Ginsberg, George E. Bullwinkel, Raymond J. Smith, Doris A. Coonrod, Chicago, Ill., for appellants.

Edward V. Hanrahan, U.S. Atty., George E. Faber, Asst. U.S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Asst. U.S. Atty., of counsel.

Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge, and SCHNACKENBERG, Circuit Judge.

SCHNACKENGERG, Circuit Judge.

Defendant, Robert James Garrett, William Earl Andrews and Thomas Earl Simmons, severally appeal from judgments entered by the district court, on April 6, 1965, based upon a trial by jury, convicting them of robbery on February 27, 1964 of a savings and loan association whose accounts were insured by the Federal Savings and Loan Insurance Corporation, in violation of Title 18 U.S.C. § 2113, said defendants then being armed with dangerous weapons, to-wit, firearms, as charged in an indictment filed March 3, 1964.

It appeared from evidence introduced out of the jury's presence on defendant Garrett's motion to suppress that during the afternoon of February 27, 1964, six men forced their way into the home of Mrs. Mahon, the mother of defendant Andrews, and after ransacking the house without permission, they suddenly left without taking anything. Thereafter, at about 6:30 P.M. FBI agents Huntington and Quinlan came to that house without a warrant and went to the basement

Page 298

where they saw two suitcases in which money wrappers and other incriminating evidence were found. The men took one of the suitcases with them. While they were in the house they 'looked and searched everything'. On cross-examination Mrs. Mahon testified that the men took both suitcases, which were not owned by her, and in fact she did not know how they got there, because she did not give anybody permission to put them there.

Mrs. Mahon further testified that, when these agents said there was something in the basement that they wanted, she did not know that a suitcase was there, so they went down and she followed. She testified that she did not on that day give anybody permission to put the suitcases in her house, specifically a brownish suitcase (Government's Group Exhibit No. 4). Her answer was the same as to another suitcase marked Government Group Exhibit No. 3.

She also testified that Andrews was not in her home that day.

At the hearing on said motion, Garrett testified in substance that a suitcase (the one marked Government's Group Exhibit No. 4) belonging to him was removed from the home of Mrs. Mahon on February 27, 1964 and that he (Garrett) did not consent to said removal.

1. Garrett charges that the district court thereafter erred in admitting in the presence of the jury a reading by the court reporter of the testimony of Garrett in support of his motion for suppression of the evidence seized without a warrant.

In the course of his reasoning Garrett's counsel urges upon us that

'To protect his Fourth Amendment rights against unreasonable search and seizure, defendant (Garrett) was obliged to take the stand and assert ownership in one of the suitcases seized by the F.B.I. agents without a warrant. In order that the defendant Garrett have the proper standing to make the objection, it was essential that he so testify. Over objection, however, the trial court allowed the transcript of Garrett's testimony in support of his motion to be read to the jury, and thus the fatal link identifying him with the suitcase and its contents was established. To thus force the defendant Garrett to barter away his rights against self-incrimination in return for the opportunity to assert his Fourth Amendment rights is a violation not only of the right against self-incrimination, but of the right to due process itself.'

His counsel contends that, in deciding to testify for the purpose of establishing Garrett's ownership of the suitcase, at the risk of having that testimony used against him upon the issue of guilt, he was required to and did resolve a dilemma. However, counsel has shown no dilemma, because he never has shown that there was no other way for him to prove Garrett's...

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8 practice notes
  • 388 F.2d 535 (1st Cir. 1968), 6934, Niro v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • February 2, 1968
    ...information.' [2] That this analogizing of the Fifth Amendment is not fanciful is evidenced by United States v. Garrett, 7 Cir., 1966, 371 F.2d 296, cert. granted sub nom. Simmons v. United States, 388 U.S. 906, 87 S.Ct. 2108, 18 L.Ed.2d 1345, where the government was allowed to introduce d......
  • 388 F.2d 525 (2nd Cir. 1968), 129, United States v. Della Rocca
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • January 19, 1968
    ...the conspiracy count, was filed on January 7, 1963. [3] This issue is currently before the Supreme Court in United States v. Garrett, 371 F.2d 296 (7th Cir. 1966), cert. granted sub nom. Simmons v. United States, 388 U.S. 906, 87 S.Ct. 2108, 18 L.Ed.2d 1345 (1967)....
  • 390 U.S. 377 (1968), 55, Simmons v. United States
    • United States
    • Federal Cases United States Supreme Court
    • March 18, 1968
    ...of this case, it is intolerable that one constitutional right should have to be surrendered in order to assert another. P. 394. 371 F.2d 296, affirmed in part, reversed and remanded in HARLAN, J., lead opinion MR. JUSTICE HARLAN delivered the opinion of the Court. This case presents issues ......
  • 395 F.2d 769 (7th Cir. 1968), 15223, United States v. Garrett
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • April 23, 1968
    ...December 7, 1966 in appeal No. 15223, United States of America, Plaintiff-Appellee v. Robert James Garrett, Defendant-Appellant, 7 Cir., 371 F.2d 296, be vacated and set aside. It is further ordered and adjudged by this Court that the judgment of the United States District Court for the Nor......
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8 cases
  • 388 F.2d 535 (1st Cir. 1968), 6934, Niro v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • February 2, 1968
    ...information.' [2] That this analogizing of the Fifth Amendment is not fanciful is evidenced by United States v. Garrett, 7 Cir., 1966, 371 F.2d 296, cert. granted sub nom. Simmons v. United States, 388 U.S. 906, 87 S.Ct. 2108, 18 L.Ed.2d 1345, where the government was allowed to introduce d......
  • 388 F.2d 525 (2nd Cir. 1968), 129, United States v. Della Rocca
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • January 19, 1968
    ...the conspiracy count, was filed on January 7, 1963. [3] This issue is currently before the Supreme Court in United States v. Garrett, 371 F.2d 296 (7th Cir. 1966), cert. granted sub nom. Simmons v. United States, 388 U.S. 906, 87 S.Ct. 2108, 18 L.Ed.2d 1345 (1967)....
  • 390 U.S. 377 (1968), 55, Simmons v. United States
    • United States
    • Federal Cases United States Supreme Court
    • March 18, 1968
    ...of this case, it is intolerable that one constitutional right should have to be surrendered in order to assert another. P. 394. 371 F.2d 296, affirmed in part, reversed and remanded in HARLAN, J., lead opinion MR. JUSTICE HARLAN delivered the opinion of the Court. This case presents issues ......
  • 395 F.2d 769 (7th Cir. 1968), 15223, United States v. Garrett
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • April 23, 1968
    ...December 7, 1966 in appeal No. 15223, United States of America, Plaintiff-Appellee v. Robert James Garrett, Defendant-Appellant, 7 Cir., 371 F.2d 296, be vacated and set aside. It is further ordered and adjudged by this Court that the judgment of the United States District Court for the Nor......
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