Montgomery v. United States

• Decision Date: 23 December 1968
• Docket Number: No. 19124.,19124.
• Parties: Eric L. MONTGOMERY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

403 F.2d 605 (1968)

Eric L. MONTGOMERY, Appellant, v. UNITED STATES of America, Appellee.

No. 19124.

United States Court of Appeals Eighth Circuit.

November 26, 1968.

Rehearing Denied December 23, 1968.

M. Randall Vanet, Kansas City, Mo., for appellant and filed brief.

William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., was on the brief with William A. Kitchen, Kansas City, Mo.

Before MATTHES, GIBSON and BRIGHT, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Eric L. Montgomery was convicted after trial by jury in the United States District Court for the Western District of Missouri for possession of stolen postal money orders of a value in excess of $100 in violation of 18 U.S.C. § 641. He received a sentence of five years.

On appeal Montgomery questions the trial court's failure to sustain his motion to suppress evidence and the sufficiency of the evidence to sustain the verdict. In addition he asserts he was denied an impartial jury in violation of the Sixth Amendment since he could not take the witness stand, because the government would then be in a position to and intended to disclose his criminal record.

Before specifically considering the defendant's related contentions of lack of probable cause for his arrest, unreasonable search and seizure, and insufficiency of the evidence, a factual resume is necessary.

On June 27, 1967, Detective Rowe, an Independence, Missouri Police Officer, was informed by one, Dale M. Ressler, who worked at a Vickers filling station, in Independence, Missouri, that he had information regarding some stolen postal money orders. Ressler, a parolee, had five times previously supplied reliable information to Rowe. Later that morning Rowe notified the postal inspectors in the area, and he, together with Postal Inspectors Polnack and Gianos, met with Ressler at the filling station. Ressler told them he had been contacted the day before by an unknown man driving a Ford truck who had offered to sell him a number of stolen postal money orders. The money order shown to him bore the stamp of the Eagle, Nebraska Post Office, was filled out as to amount but not as to payee; and had been pulled from a Bible that bore the imprinted name Kelly G. Smith. Ressler also had obtained the license number of the truck operated by the person offering to sell the stolen postal money orders.

The driver of the truck offered to sell the money orders for $500, whereupon Ressler asked him to furnish the quantity in dollar amounts, which was done. Then Ressler asked the man to call him at 11:30 a. m. the next day.

The postal inspectors knew that the Eagle, Nebraska Post Office had been burglarized on March 29, 1967. They checked out the license number supplied to them by Ressler and found it to be registered to a Kelly G. Smith. A further check failed to reveal any criminal record on Smith. The postal inspectors also checked with Ressler's parole officer, who informed them that Ressler was unlikely to lie in a matter of this kind. Arrangements were made with Ressler to go through with the purchase of the stolen money orders.

Ressler received a call at 11:30 a. m. while he was in the process of discussing this matter with the postal inspectors. This call was monitored by Inspector Polnack with Ressler's consent. Ressler and the calling party agreed to meet at the filling station between 6:30 and 7:00 p. m. of that same day. Upon instruction of the postal inspectors, Ressler was to leave the filling station with the other party and to make the purchase at Ressler's home only if Ressler had first ascertained that the postal money orders were in the possession of the other party. The postal inspectors suspected that the proffered money orders were those stolen from the Eagle, Nebraska Post Office on March 29, 1967.

At about 6:55 p. m. a blue pickup truck pulled into the Vickers filling station. Two individuals left the vehicle and conversed with Ressler. After a check under the hood of the truck was made at the filling station, the hood was closed and the two individuals re-entered the pickup truck and followed Ressler, who had entered his own car and driven down the street. This maneuver was observed by Inspector Polnack who radioed Inspector Gianos and the Independence police that the men were enroute.

After traveling a few blocks and just before the truck reached Ressler's house the police car, in which Inspector Gianos rode, sounded its siren causing the truck to stop. Two occupants, later identified as Kelly G. Smith and defendant Eric L. Montgomery, were ordered out of the truck or forcibly removed therefrom. A number of other police cars and officers quickly surrounded Smith and Montgomery. Independence Officer Terryberry informed them of their arrest and Inspectors Breda and Gianos searched the pickup truck and found a loaded .32 caliber pistol in the front seat and a cigar box containing 66 postal money orders from the Eagle, Nebraska Post Office, along with several validating stamps. The cigar box was on the floor-board under the front seat of the pickup truck on the passenger's side. The arrested men were searched and a tear gas pistol was removed from Montgomery's person. The inspectors also found a Bible with the name of Kelly G. Smith imprinted thereon in the glove compartment of the pickup truck.

Montgomery was placed in a police car with Officer Terryberry and Inspector Gianos, Officer Terryberry advised Montgomery of his constitutional rights and also that the charges against him were possession of a concealed weapon and possession of stolen property. Upon arrival at the Independence police station, Montgomery and Smith were booked on the charges as stated by Terryberry. The State charges were subsequently filed as enumerated but were dismissed upon the issuance of a federal complaint for the possession of stolen government property. This complaint in turn was dismissed after Smith and Montgomery were jointly indicted by a federal grand jury on July 26, 1967 for the present offense.

Both Smith and Montgomery filed a motion to suppress the evidence claiming a lack of probable cause for their arrest and also asserting that even if the arrest were valid the subsequent search was invalid under Missouri law and under the Fourth Amendment.

MOTION TO SUPPRESS

Under Missouri law police officers may arrest without a warrant where there is a reasonable gound to believe a felony has been or is being committed. State v. Raines, 339 Mo. 884, 98 S.W.2d 580 (1936). If the arrest is legal under state standards and not violative of federal constitutional rights the arrest and the search incidental thereto is valid. And in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. United States v. DiRe, 332 U.S. 581, 589, 68 S. Ct. 222, 92 L.Ed. 210 (1948); Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

The facts known to the various officers participating in the investigation and arrest of Montgomery, together with the information supplied by Ressler, a previously reliable informer whose information checked out to be correct, would certainly cause a reasonable person to believe that the occupants of the truck had possession of stolen postal money orders and were attempting to dispose of this stolen property for their own benefit. The information that the suspects were enroute with the contraband was directly communicated by Inspector Polnack to Inspector Gianos by radio. Gianos was in the Independence, Missouri patrol car with Officer Terryberry when this information was received. The inspectors aided and cooperated with the Independence, Missouri police officials in making the arrest, but the information supplied was sufficient to constitute probable cause for the arrest of the defendant by either the postal inspectors or by the Independence police officers that stopped the truck in which defendant was riding. Feinstein v. United States, 390 F.2d 50 (8 Cir. 1968); Churder v. United States, 387 F.2d 825 (8 Cir. 1968).

Defendant complains that the officials had time to obtain a warrant. This complaint lacks substance as the investigating officials did not even know of Montgomery or that he would be with driver Smith at the time of the rendezvous for the sale. They also did not know that the party or parties in the pickup truck would have the stolen money orders with them at the time of the rendezvous with Ressler. It was only upon Ressler's pre-arranged signal in leaving the filling station that the officials had probable cause to believe that the parties in the pickup truck had possession of the stolen money orders. The officers then were fully justified in apprehending the persons they thought to be in possession of the stolen postal money orders. The overall test for the arrest is whether the officers had probable cause to believe a felony was being or had been committed by the occupants of the truck. That probable cause existed to believe a felony had been or was being committed is evident under the facts of this case and requires no further discussion.

Defendant, however, contends that even if the arrest were valid the search incident to the arrest was not as the search was made by post office inspectors who, the defendant claims, have no right to initiate a search or seizure without a warrant. The Fifth Circuit case of Alexander v. United States, 390 F.2d 101 (1968) held that there was no federal law investing postal inspectors with the authority to arrest without a warrant but did recognize the right of postal inspectors to make a citizen's arrest if made in accordance with state law. As pointed out in Alexander, 39 U.S.C. § 903 authorizes a limited search for mailable matter transported in violation of law when a proper letter of authority is issued by the Postmaster General; and 39 U.S.C. § 3523(2) (K) in outlining the...