Sumrall v. United States

• Decision Date: 06 September 1967
• Docket Number: No. 9417-9419.,9417-9419.
• Parties: Donald Wayne SUMRALL, Joe Jerrell Crocker and Raymond Claud Nabors, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 651 (1967)

Donald Wayne SUMRALL, Joe Jerrell Crocker and Raymond Claud Nabors, Appellants, v. UNITED STATES of America, Appellee.

Nos. 9417-9419.

United States Court of Appeals Tenth Circuit.

September 6, 1967.

Emmett Colvin, Jr., and Mike Barclay, Dallas, Tex., for appellants.

Bruce Green, U. S. Atty., for appellee.

Before MURRAH, Chief Judge, MILLER^* and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

When this case was first before us, we reversed and remanded solely on the prejudicial effect of a reference to the appellants' prior "records". Sumrall et al. v. United States, 10 Cir., 360 F.2d 311. A retrial resulted in a second conviction on substantially the same proof, the sufficiency of which is not questioned. The issue presented here for the first time is the legality of the arrest and search of the appellants and their female companion and the admissibility of evidence obtained by those searches.

The unrebutted evidence pertinently reflects that in February, 1964, the federally insured bank at Red Oak, Oklahoma, was robbed by three armed men. About five days later, the appellants and a female companion, Patricia Ramsey¹, were traveling in a car through a residential area in Dallas, Texas, at approximately 3:30 a. m. when they were stopped by the Dallas Police. Appellant Nabors, who had been driving, "stepped out" of the car and one of the Police Officers advised him that he had been stopped for speeding and for having a defective light over the license plate of his car. After some questioning, Nabors admitted having no driver's license or other identification, whereupon the officer searched him discovering a license in "a name other than his Nabors' own" and a "large amount of money". After some further searching and questioning, all three appellants and Patricia Ramsey were taken to the "police station" where a search of "Miss Ramsey's purse" disclosed a "stack of $2 bills". Cross-examination developed the fact that neither appellants Crocker and Sumrall nor Patricia Ramsey had committed any breach of the peace in the officers' presence nor had the officers been advised that they were in flight from a felony. The money taken from Nabors and Patricia Ramsey was identified as part of the currency taken in the Red Oak bank robbery.

During the trial, the money was admitted into evidence over appellants' objection to the effect that "* * * accepting these * * * exhibits into evidence would constitute a violation of the Fourth Amendment * * * and the Government has also failed to show proper evidence to substantiate and support the search and seizure which caused the exhibits themselves to come into the hands of * * * the United States Government."

The Government now seeks to foreclose the objection for failure to move timely for suppression of the disputed evidence prior to trial. It invokes Rule 41(e), F.R. Cr.P. which provides that a motion to suppress evidence obtained by unlawful search and seizure shall be made "* * before trial * * * unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial * *" The best of the argument seems to be that since the evidence had been introduced in the first trial, ample opportunity was afforded to know the grounds for the motion and that this is a "* * * situation * * * squarely within the rule where the appellants knew of the evidence, knew how it was seized and still failed to file a motion prior to trial pursuant to 41(e)". It is further argued that even though entertainment of a motion to suppress at trial is discretionary with the court, the appellants made no motion but merely made an objection on which the court ruled and, therefore, they cannot raise the question for the first time on appeal.

It is indeed true that the appellants had sufficient time, knowledge and opportunity to file a 41(e) motion to suppress prior to trial. But, Rule 41(e) is not rigid and unyielding. While it is "* * * in the interest of normal procedural orderliness" that a 41(e) motion to suppress must be made prior to trial, i. e. see Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697, the trial court is to be sure vested with discretion to entertain such an objection to the evidence at trial. And see Gilbert v. United States, 9 Cir., 307 F.2d 322. We think in our case the appellants' objection was sufficient to raise the issue. And, although the trial court did no more than overrule the objection to the evidence, we assume that he ruled on the merits of the objection and not on a procedural technicality of untimeliness. So holding, we review the propriety of the court's ruling.

This brings us to the appellants' first contention that the arrest and search of Nabors was illegal rendering the money taken from him inadmissible as a "fruit of the poison tree". And see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. The argument is that under applicable Texas law², the arresting officers had only limited statutory authority to make an arrest without a warrant for traffic violations and were under a statutory duty to release the violater in the absence of a demand for an immediate hearing. See Spencer v. Southland Life Ins. Co., Tex.Civ.App., 340 S.W.2d 335; Brown v. State, 159 Tex.Cr.R. 306, 263 S.W.2d 261; Montgomery v. State, 145 Tex.Cr.R. 606, 170 S.W.2d 750. It is argued that such an arrest is not "full custody" such as would permit a search and is an invalid arrest as a matter of law.

Fortunately, the Fifth Circuit has very recently considered this same problem of Texas law in Mendoza v. United States, 5 Cir., 365 F.2d 268. In that case the court, construing Texas statutory law, held that the police officer had probable cause to arrest Mendoza without a warrant for both making an improper turn and failing to display a proper driver's license, and that the officer had a choice of taking the violater before a magistrate, issuing a written appearance notice or "invoking any other appropriate procedure of arrest". Id. 274. Our case is clearly analogous to Mendoza under which either the speeding violation or driving without a proper license was sufficient to sustain a lawful arrest of Nabors. And Cf. Myricks v. United States, 5 Cir., 370 F.2d 901. It has been...