Nash v. United States

• Decision Date: 20 January 1969
• Docket Number: No. 19242.,19242.
• Citation: 405 F.2d 1047
• Parties: James William NASH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

405 F.2d 1047 (1969)

James William NASH, Appellant, v. UNITED STATES of America, Appellee.

No. 19242.

United States Court of Appeals Eighth Circuit.

January 20, 1969.

Charles M. Shaw, Clayton, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

GIBSON, Circuit Judge.

The defendant James William Nash was convicted, in a jury trial, of possessing stolen post office money orders of a value in excess of $100 in violation of 18 U.S.C. § 641. He was jointly indicted and tried with one Robert Wilmont, who was acquitted by the jury. Nash received a sentence of four years.

On appeal Nash contends: (1) illegal arrest and search, (2) illegal search even if arrest was valid, (3) error in the admission of evidence, (4) failure of the court to declare a mistrial, and (5) error in the court's comment on the evidence. We affirm the judgment of conviction.

The record discloses that on the evening of October 24, 1967, at approximately 6:45 p. m. John Bush and William Cowell, Deputy Sheriffs, were riding in their patrol car in St. Charles County, Missouri. They received a radio message from their County Dispatcher, previously relayed from the State Patrol Dispatcher, to the effect that a till had been tapped at a service station in Wright City, Missouri. (Till tapping is theft of money from a cash register.) The offenders were described as being two white males driving east on Interstate 70 in a 1965 or 1966 brown Chrysler with Missouri license number CB 2213. Officers Bush and Cowell proceeded to the vicinity of Interstate 70 and parked on the entrance ramp for eastbound traffic. Shortly after their arrival a Chrysler matching the description of the car mentioned in the broadcast passed them traveling in an easterly direction. They pursued the car for about two miles and confirmed that the license plate thereon was the same as the one mentioned in the broadcast. Having confirmed the license plate number, the officers stopped the vehicle. Defendant Nash got out of his automobile and upon request displayed his driver's license and stated that his passenger was a hitchhiker whom he had picked up in Warrenton, Missouri. Nash and Wilmont were then placed under arrest as "suspect fugitive from Warren County." As the arrest was being made, another police officer from O'Fallon, Missouri, arrived at the scene. This officer, together with Officer Cowell, covered Nash and Wilmont while Officer Bush searched the automobile, allegedly for weapons. The arrest and search took place after dark, about two miles from the nearest town. The arrest and search were without warrant.

Officer Bush first searched the glove compartment of the Chrysler, where he discovered two loaded hand guns. He next searched the back seat area and found a .20 gauge shotgun in a case and two boxes of shells on the floor. On the back seat he found a red overnight bag which he also searched, allegedly for weapons, and found instead, among other items, 19 post office money orders which he removed from the bag and subsequently turned over to the postal authorities. He then searched the trunk of the car in which he found various tools, including pry bars, chisels or punches, screwdrivers and a lockpicking set. A valid Missouri license plate was also found in the trunk. After completing the search the suspects and the Chrysler car were removed to the St. Charles County jail.

Officer Bush contacted Post Office Inspector Thorn who took possession of the money orders. The serial numbers on these money orders were within the range of numbers of the orders stolen from the Marthasville, Missouri Post Office on the evening of March 24-25, 1967. Furthermore, they had been validated with a Marthasville Post Office dating stamp, which also had been stolen. While at the police station, Nash was fingerprinted. A fingerprint expert found one of Nash's prints on one of the money orders.

Nash testified that at the time of his arrest he was heading for St. Louis to meet a person interested in the purchase of his farm. He denied ever having seen the overnight bag or the postal money orders until they were shown to him at the police station. He also said he did not know whether Wilmont, the hitchhiker, had the bag at the time Wilmont was picked up by Nash. Nash also claimed that at the police station with no officers present, except Postal Inspector Thorn, Thorn handed one of the money orders to him to look at, thus causing him to leave a fingerprint on the money order. Inspector Thorn expressly denied this and testified that at no time had this occurred.

The defendant's first contention is that his arrest was illegal and the subsequent search without warrant was also illegal and thus evidence derived from the search must be suppressed under the exclusionary rule enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). For the first time on appeal defendant asserts there was no probable cause to suspect him of having committed a felony. Defendant did file a motion to suppress in the trial court but on a different ground which we shall discuss infra.¹ That motion was overruled without comment. The record is silent on whether the information available to the peace officers disclosed the amount of money involved in the till tapping; and under Missouri law, V.A.M.S. § 560.161, a theft of less than $50 under certain circumstances is a misdemeanor. Furthermore, Nash and Wilmont were arrested not for till tapping but for "suspect fugitive from Warren County" (for till tapping) and later for carrying concealed weapons. Under Missouri law, arrest without warrant for a misdemeanor is not permissible unless committed in the presence of the arresting officer. State v. Parker, 378 S.W.2d 274 (Mo. App.1964); City of Independence v. Stewart, 397 S.W.2d 765 (Mo.App.1965).

Sufficient for disposition of the first point is that the officers upon hearing the radio broadcast about the till tapping offense had reasonable cause to believe that a crime in the nature of a felony had been committed and that the persons apprehended were the perpetrators. Ordinarily, police radio broadcasts for apprehension of persons recently committing an offense and giving information on the offense, as in the present case, are concerned with felonious activity and not with misdemeanors. As pertinently observed by Judge Collet in reviewing the Missouri law on arrest in Mueller v. Powell, 203 F.2d 797, 800 (8 Cir. 1953):

"* * * It is readily apparent that under the law of Missouri an officer charged with the duty of enforcing the law * * * is justified in making an arrest without a warrant, although no felony has actually been committed, but is suspected, and there is reasonable or probable grounds to suspect that the person arrested committed the crime."

This proceeding again indicates the soundness of the doctrine of an appellate court refusing to consider alleged errors that were not presented below. Otherwise, a person can fail to raise issues that could readily be disposed of in the trial court and thus foreclose the government from presenting evidence in the trial court or when these issues are for the first time raised on appeal. In this case the record is silent as to the amount involved in the till tapping but we do not think the point is dispositive.² The Seventh Circuit in refusing to consider errors not raised below in United States v. Jones, 204 F.2d 745 (1953) said at 749:

"We shall not, in a flagrant case, give cognizance to a complaint first made to us and thus give the defendant two bites at the same cherry, by declaring erroneous action of the trial court, the fault of which defendant did not see fit to make the court aware, when he had the opportunity to do so."

This Circuit in Shaw v. United States, 403 F.2d 528 (8 Cir., 1968) held in line with previous holdings of this Circuit and other circuits that:

"* * * Barring plain error, we will not notice errors raised for the first time in the appellate court, including errors involving a defendant\'s constitutional right. Robinson v. United States, 327 F.2d 618 (8 Cir. 1964). Cf. Clay v. United States, 394 F.2d 281 (8 Cir. 1968); and see United States v. Indiviglio, 352 F.2d 276, 280 (2 Cir. 1965); United States v. Del Llano, 354 F.2d 844, 847-848 (2 Cir. 1965); United States v. Bolden, 355 F.2d 453, 458-459 (7 Cir. 1965); Good v. United States, 378 F.2d 934, 936 (9 Cir. 1967); United States v. Armetta, 378 F.2d 658, 661 (2 Cir. 1967)."

There is no plain error in this case. To invoke Rule 52(b), Fed.R.Crim.P., most courts require the miscarriage of justice to be clear and the error flagrant. In Gendron v. United States, 295 F.2d 897 (8 Cir. 1961) we said:

"The application of rule 52(b) rests within the sound judicial discretion of the appellate court. The normal rule is that an appellate court should not consider questions which have not been properly raised in the trial court and upon which the trial court has had no opportunity to pass. The plain error rule should be applied with caution and should be invoked only to avoid a clear miscarriage of justice. To exercise the right freely would undermine and impair the administration of justice and detract from the advantages derived from orderly rules of procedure." (Citations omitted.)

Defendant's next contention is that even if the arrest were legal the subsequent search was not. In reliance upon Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) and Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), the defendant maintains that there was no compelling reason for the police officers not to secure a search warrant and that absent such compelling reasons a search incident to an arrest without warrant is unreasonable. Neithe...