United States v. Alloway, 17911.
| Citation | 397 F.2d 105 |
| Decision Date | 26 June 1968 |
| Docket Number | No. 17911.,17911. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Henry ALLOWAY, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
COPYRIGHT MATERIAL OMITTED
Charles W. Lusk, Jr., Chattanooga, Tenn., for defendant-appellant.
John H. Reddy, U. S. Atty., Chattanooga, Tenn., for plaintiff-appellee; Thomas A. Williams, Asst. U. S. Atty., Chattanooga, Tenn., on brief.
Before O'SULLIVAN, PHILLIPS and COMBS, Circuit Judges.
O'SULLIVAN, Circuit Judge.
Upon a jury trial, held in the United States District Court for the Eastern District of Tennessee John Henry Alloway was found guilty of armed robbery of a Federal Savings & Loan Association, in violation of 18 U.S.C. § 2113(a) and (d). On February 24, 1967, he was sentenced to fifteen years imprisonment. He appeals to this Court for a new trial on his assertion that certain physical exhibits which were received in evidence had been illegally obtained from his trailer home, and that improper argument was made to the jury by government counsel. We affirm.
On August 3, 1966, about 1:30 P.M., the Highland Plaza office of the Chattanooga Federal Savings & Loan Association was robbed by a single gunman who took from the Association's employees the sum of $6,570.19. He came through the front door of the establishment and then, brandishing an automatic revolver, ordered the two employees present to "hand over the money," giving them a paper sack in which to place it. When he was satisfied that he had obtained all the cash in the place, he ordered the employees to the back of the vault and then left the premises.
Throughout this affair the felon made no attempt to conceal his identity, and upon arrival of the police he was described by the bank employees as wearing a dark suit and tie — as rather well dressed. One of the employees of the Loan Association told the police that before the robbery he had observed the thief park a blue and white Chevrolet station wagon with Louisiana license plates in the bank parking area. A Bond Clothing Company merchandise tag was found on the lobby floor of the Loan Association, and the two employees were certain that the clothing tag was not in the lobby before the robbery. From information obtained from a local Bond Clothing Company store, the police determined that one John Kamp of 830 Cherokee Boulevard, Chattanooga, had likely purchased the suit indicated by the tag. At 3:30 P.M. the local police and the FBI went to this address, observed a blue and white Chevrolet with Louisiana license plates, attached to a trailer, and arrested the appellant, John Henry Alloway, who admitted his use of the alias John Kamp. A routine search of his person revealed his possession of $972 in currency, including some coins.
Warrants were immediately obtained for a search of appellant's car and house trailer. This search of the trailer a short time after appellant's arrest yielded a loaded 9 millimeter Beretta automatic pistol and $90.34 in coins contained in a cigar box. In the course of the search, two men's suits were discovered, one of them a dark suit bearing a Bond Clothing label. Appellant's wife, orally and by written authorization, consented to the taking of the suits by the officers.
At the trial, appellant was positively identified as the robber by the two bank employees. They also had identified him in a police lineup on the day of the robbery. The evidence of appellant's guilt was clear. Before trial a motion was made for return and suppression, as evidence, of the two suits of clothes, the box of coins, and other items taken on the day of appellant's arrest. This motion was denied.
The search warrant described the property to be seized as:
"U.S. currency in the approximate amount of Six Thousand Five Hundred and Seventy Dollars and Nineteen Cents ($6,570.19), the proceeds of the robbery of the Highland Plaza Branch of the Chattanooga Federal Savings and Loan Association of this date, and any weapon used in said robbery."
Seized at the time of the search were a loaded automatic pistol, a cigar box containing $90.34 in miscellaneous coins, including a foreign coin, and two suits of clothes belonging to Alloway. On this appeal, appellant contests the legality of the seizure of the coins and the suits.
On the pretrial motion to suppress, appellant Alloway's wife testified that the coins were her own collection; she so informed the officers at the time of their seizure. The officers had been told by loan association personnel that "currency and silver" had been stolen, and testimony at trial established that approximately $100 in miscellaneous coins were included in the "loot". Mrs. Alloway did not testify at the trial. We think that it was for the District Judge, and later for the jury, to determine whether all, or some, of the coins were part of the money stolen in the robbery. We consider this matter of little importance. The receipt of the coins in evidence if error, was clearly harmless in the context of the other very cogent evidence of appellant's guilt. Rule 52(a) F.R.Crim.P. See also Chapman v. State of California, 386 U.S. 18, 24-26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Ethington v. United States, 379 F.2d 965, 966 (6th Cir. 1967).
During the course of the search, the officers saw two dark suits of clothes identified by Mrs. Alloway as belonging to her husband. Inasmuch as they had not been specifically described in the warrant, the officers asked Mrs. Alloway if they could take them. She consented, both orally and by signing a written consent. One of the suits bore a Bond Clothing Company label. In view of the fact that a Bond Clothing Company merchandise tag found on the floor of the loan association had led the officers to Alloway, who was identified by the victims of the robbery as wearing a dark business suit, the suits were indeed relevant and material as evidence. They were admissible unless the government's possession of them was unlawful. For the several reasons which follow, we hold that the suits were properly admitted.
As set out above, Alloway was arrested at his trailer by state and FBI officers several hours after the robbery. Immediately after the arrest the officers procured a warrant to search the trailer home. When the officers arrived to make the search, the door of the trailer was unlocked and no one was at home. After completion of the search, Mrs. Alloway returned and was asked for her permission to take the two suits of clothing already discovered. As set out above she consented both orally and in writing.
Upon a pretrial motion to return these suits to Alloway, the wife attempted to claim that her consent was coerced. She said she could not remember whether she read the authorization, nor did she recall signing it. However, she admitted the genuineness of her signature appended to the following statement which she read at the hearing:
"I, Elizabeth Ann Alloway, give Mr. William B. Cole, who has identified himself to me as a special agent of the FBI, permission to take two men\'s suits, one having the label of Richmond Brothers and one having — I can\'t read that — by Bond Clothing, these suits having been found in the rear closet of my — something — located at the City View Motel."
As to her oral consent, she gave this account:
She later concluded the subject as follows:
Two FBI officers testified that Mrs. Alloway readily gave her consent to the removal of the suits. The officer who prepared the written consent said he gave it to her and asked her to read it and that she made no objection to signing it. At the end of the motion to suppress, the District Judge said:
In Rosenthall v. Henderson, 389 F.2d 514, 515-516 (6th Cir. 1968), we were dealing with the voluntariness of a consent to search and indicated that where consent is relied upon, the burden is on the government to prove, as a matter of fact, that the consent was voluntarily given, citing, inter alia, our decision in Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We read the District Judge's finding as adequately obedient to the applicable rule.
There remains, however, for us to say whether the wife's voluntary consent validated what was done. We will not essay refined determination whether we deal here with a seizure of property not described in a valid search warrant, or whether the seizure was made subsequent to the first search — in a second search, made without a warrant — but with the...
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State v. Richards
....25 caliber pistol. For a pre-Coolidge case which reaches the same conclusion as ours under quite similar facts, see United States v. Alloway, 397 F.2d 105 (6th Cir. 1968). Defendant relies also on Georgia law in challenging the legality of the seizure of these weapons. She argues the law o......
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