Theriault v. United States

• Citation: 401 F.2d 79
• Decision Date: 24 February 1969
• Docket Number: No. 18868.,18868.
• Parties: Harry William THERIAULT, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

401 F.2d 79 (1968)

Harry William THERIAULT, Appellant, v. UNITED STATES of America, Appellee.

No. 18868.

United States Court of Appeals Eighth Circuit.

September 6, 1968.

Certiorari Denied February 24, 1969.

William I. Prewett, El Dorado, Ark., for appellant.

Charles M. Conway, U. S. Atty., Fort Smith, Ark., for appellee.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

Certiorari Denied February 24, 1969. See 89 S.Ct. 898.

BLACKMUN, Circuit Judge.

Harry William Theriault, born December 11, 1937, who has used the names of Gerald Samuel Clevinger and Joseph W. Cline, after a plea of not guilty to a one-count indictment, was convicted by a jury of a violation of 18 U.S.C. § 2113(b).¹ The indictment charged Theriault with taking, on or about December 11, 1966, and with the prescribed intent, money aggregating more than $100 belonging to a Parkdale, Arkansas, bank the deposits of which were then insured by the Federal Deposit Insurance Corporation.² Chief Judge Harris imposed a sentence of 10 years; this is the maximum prison term prescribed by the statute. Theriault appeals in forma pauperis.

The Parkdale bank was entered and robbed during the night of Saturday, December 10, 1966. Silver aggregating $1,250, some traveler's checks, and other property were taken. The defendant and William Johnson Huddleston,³ who has used the name of Glendale Sam Gillespie, were arrested about 7 p. m. the following day, Sunday, at the Sahara Junior Motel in DeWitt, Arkansas, some miles north of Parkdale. The arrest was by local police who possessed neither an arrest warrant nor a search warrant.

The defendant here asserts (A) the impropriety of the trial court's denial of his motion to suppress evidence; (B) prejudice and deprival of a fair trial because of the court's many references to the charge as one of "bank burglary"; (C) error in the submission of an instruction on aiding and abetting; (D) error in the arresting officers' failure to advise the defendant of the reason for his arrest; and (E) error in not taking the defendant forthwith before a magistrate or United States Commissioner.

A. The motion to suppress. The evidence which was the subject of the motion to suppress consisted of (1) items (acetylene torches, other tools, wrapped coins, loose coins, cloth money bags, and a black bag in an open cardboard box) in the bed of a pickup truck driven to the motel by Huddleston and the defendant; (2) a pistol and traveler's checks under the mattress on the bed in the motel room occupied by Theriault at the time of his arrest; (3) items (a cigar box and the money in it) on the floor of the cab of the truck; and (4) items (a pistol and loose and wrapped coins) in the truck's glove compartment.

Judge Harris held a full and lengthy hearing on the motion. He filed detailed findings and conclusions and denied the motion. United States v. Theriault, 268 F.Supp. 314 (W.D.Ark.1967).

We need not here repeat the findings of fact made by the trial court. This material is set forth at pp. 315-321 of 268 F.Supp. We have carefully read the transcript of the hearing on the motion to suppress and we readily conclude that the facts so found have adequate and, indeed, overwhelming support in the record.

The defense does not here really challenge the facts so found. It asserts, instead, that those facts demonstrate that the items seized were all improperly taken. The argument is that Theriault already "was in custody and placed in a police car under armed guard" at the time his motel room was searched; that search of the truck was not undertaken until after the arrest and, as to some items, until after the defendant had been taken to the police station; and that his warrantless arrest was not on probable cause.

We look first at Theriault's arrest. Its lawfulness is to be determined by state law insofar as it is not violative of the federal constitution. Miller v. United States, 357 U.S. 301, 305, 78 S. Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Di Re, 332 U.S. 581, 589, 68 S. Ct. 222, 92 L.Ed. 210 (1948). The applicable Arkansas statute, Ark.Stat.Ann. § 43-403 (Repl.1964), reads:

"43-403. Peace officer, when may arrest. — A peace officer may make arrest:

* * * * * *

"Second. Without a warrant, where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony."

We equate this statutory standard of reasonableness with probable cause. Trotter v. Stephens, 241 F.Supp. 33, 40 (E.D.Ark.1965), aff'd. 361 F.2d 888, 892 (8 Cir. 1966), cert. denied 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113.

The Supreme Court and this court on many occasions have enunciated the standard of probable cause applicable for a warrantless arrest. "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Feguer v. United States, 302 F.2d 214, 245-248 (8 Cir. 1962), cert. denied 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110; Schook v. United States, 337 F.2d 563, 565 (8 Cir. 1964); Cotton v. United States, 361 F.2d 673 (8 Cir. 1966); Rodgers v. United States, 362 F.2d 358, 361 (8 Cir. 1966), cert. denied 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454; Gullett v. United States, 387 F.2d 307, 309 (8 Cir. 1967).

Some or all of the arresting officers (Chief Harrison, Ferguson and Munnerlyn) were aware, prior to the arrest, of the offense at the Parkdale bank the night before. They were aware that a large amount of silver had been taken from the bank on that occasion. They had been advised, not only by the operator of the restaurant at the motel in DeWitt, but by word received through police radio channels, that two white men driving a late model pickup truck, with a black vinyl top and a missing rear bumper, were the suspects, and that one of these men had an injured foot. They knew also (1) that Clevinger (Theriault) and Gillespie (Huddleston) had registered at the Sahara early that afternoon; (2) that one of them had a foot so severely injured that he had to be assisted by the other to his room; (3) that the second man had ordered food from the motel restaurant to take out; (4) that the second man had passed at the restaurant a questionably signed traveler's check and, in exchange for a $5 bill, ten then seldom seen Kennedy half dollars; (5) that the two had arrived at the motel in the pickup truck now backed up before their room; (6) that the men and their truck, even to the missing rear bumper, fit the descriptions of the bank robbery suspects and the suspects' vehicle; (7) that in the bed of the truck were cutting torches and other tools suitable for effectuating a robbery, and coins, both wrapped and loose, and money bags; and (8) that the two men indicated they were planning to leave the motel at seven o'clock and not stay all night.

We readily conclude that the information in the hands of these Arkansas police officers provided probable cause for Theriault's arrest and compares more than favorably with facts we have adjudged sufficient for probable cause in recent cases: Feinstein v. United States, 390 F.2d 50, 53 (8 Cir. 1968) (knowledge of burglary; taking of money orders and other equipment; information supplied by reliable informer; corroboration; a fulfilled anticipated meeting of informer and defendant); Churder v. United States, 387 F.2d 825, 830 (8 Cir. 1968) (recent area burglaries; taking of money orders and equipment; the directing postal inspector's knowledge of the burglaries; statements from informer; defendant's presence at a particular place as anticipated); Gullett v. United States, supra, pp. 310-311 of 387 F.2d (purchase of a tire with quarter dollars; attempt to sell cigarettes with an indication different brands were for sale; absence of driver's license; inability to produce proof of car's ownership; production of ownership documents for other automobiles; awareness by arresting officers of recent area burglaries where cigarettes and coins had been taken); Rodgers v. United States, supra, p. 361 of 362 F.2d (correspondence of defendant's car with one stolen; failure to have operator's license in possession; radio verification that the defendant's car bore plates of one stolen); Harris v. Stephens, supra, 361 F.2d 888, 893 (8 Cir. 1966), cert. denied 386 U.S. 964, 87 S.Ct. 1040, 18 L. Ed.2d 113 (victim's escort's descriptions of assaulters and their automobile; information as to ownership of automobile so described; presence of car in driveway of one defendant; identification of car by victim's escort; stains on upholstery and heat in engine; blood stained clothes on both defendants; presence of victim's wristwatch in billfold of one defendant); Cotton v. United States, supra, p. 675 of 361 F.2d (tender of a suspicious twenty dollar bill for a small purchase; concern on the part of two service station attendants; advice from secret service agent that bill was probably counterfeit; defendant's inability to explain where he obtained it; the hour of the night; sudden discovery of a smaller good bill after a representation that the bogus twenty was all defendant had); Caldwell v. United States, 338 F. 2d 385, 388 (8 Cir. 1964), cert. denied 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277 (officer's knowledge of bank robbery; identification by several witnesses of defendant from photographs; registration under defendant's name of license number of automobile used by robber); and Shook v. United States, pp. 565, 566 of 337 F.2d (presence on vehicle in which defendant was riding of plate issued to burglar who might be operating in area; refusal to stop upon signal; attempt to avoid recognition; flight at excessive speed; discard of objects from the automobile).

In addition,...