United States v. Skinner

• Decision Date: 18 June 1969
• Docket Number: No. 19421.,19421.
• Citation: 412 F.2d 98
• Parties: UNITED STATES of America, Appellee, v. Doyle Ray SKINNER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

412 F.2d 98 (1969)

UNITED STATES of America, Appellee, v. Doyle Ray SKINNER, Appellant.

No. 19421.

United States Court of Appeals Eighth Circuit.

June 18, 1969.

Robert F. Collins, South St. Paul, Minn., for appellant.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Patrick J. Foley, U. S. Atty., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and VOGEL and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The defendant was convicted by a jury of robbing the Northern Federal Savings and Loan Association, St. Paul, Minnesota, on September 29, 1967, in violation of 18 U.S.C. § 2113. The sole issue on this appeal is whether the trial court erred in denying the defendant's pre-trial motion to suppress evidence allegedly seized pursuant to an illegal search and seizure. We affirm for the reasons stated below.

The Northern Federal was robbed of approximately $5,500 shortly after noon on September 29, 1967. Approximately an hour later at 1:15 P.M., the defendant was arrested at the Burlington Hotel by St. Paul Police Detective Vernon Michel. Detective Michel became aware of the robbery at about 12:10 P.M. when it was broadcast over police radio. Detective Michel obtained all his information from the police broadcasts.¹

The robber was originally described as a middle-aged white man of 45 years, weighing 155 pounds, five feet ten inches tall, slender build, wearing a brown hat and a red coat sweater with white stripes on the sleeves. The description was later amended to add that the man was in need of a shave, weighed 145-170 pounds, had brown hair turning gray and thinning, and wore a green and red stocking cap. This description was further amended to delete the stocking cap and add that the hat was a short brimmed brown or gray hat and that the robber was definitely less than five feet six inches tall.

A subsequent broadcast added that a man answering the description had fled from police officers into the union depot and down the tracks losing his hat in the process. It was then reported that railroad employees in the control tower spotted a man matching the description down "by that Burlington House near the fish hatchery." Then, it was reported that two men were seen by a switchman near the fish hatchery and that one had graying hair, but the description was vague. Other reports from switchmen reported a lone man in the fish hatchery area. Other officers were directed to cut off retreat to the west. It was then reported that an officer had found a sweater at Sibley and Kellogg, which is slightly west of the depot and considerably west of where the search was centering. Information that the robber was wearing a dark colored "sport" shirt was broadcasted. A witness to the robbery identified the sweater and hat and the Deputy Chief, apparently concluding that the switchmen had been mistaken, redirected the search to the area west of the depot.

The railyards east of the depot are bordered by the Mississippi River on the south. On the north, the yards are bordered by a 100-foot bluff "which is nearly straight up and down" and which runs from the depot to a point just short of the Burlington Hotel. Although the Deputy Chief ordered the search concentrated to the west, Detective Michel was convinced the geography of the area, plus the earlier reports, dictated that the robber would flee east. He decided to check an old railroad workers' hotel, the Burlington.

Detective Michel and Officer Biagi entered the hotel and talked to the owner. They noticed two persons sitting at the lunch counter. The owner stated that he knew one of the men but not the other. Detective Michel approached the unidentified man and asked him to identify himself. Detective Michel stated that the man matched the description of the wanted man in every respect. The suspect showed Detective Michel his Navy discharge papers and Detective Michel asked him if he could search him. The man stated, "Yes, go ahead." The man pulled a wallet out of his pocket and put it on the table. Detective Michel proceeded to search the man's front pocket and discovered a handful of bullets. Simultaneously, Officer Biagi noted that the defendant had a pistol. Detective Michel then said, "You are under arrest."

The officers seized the pistol and continued their search. They recovered some $5,500 concealed on the defendant's person.

The defendant contends that the evidence — the bullets, the pistol and the money — should have been suppressed on the grounds that it was obtained as a result of an illegal search and seizure. He argues that probable cause to arrest did not exist prior to the search and that, in any event, the arrest was not made until after he had been partially searched and the bullets and gun discovered. Thus, he reasons that the search and seizure cannot be sustained as being incident to a lawful arrest.²

Because we believe that this search was incident to and contemporaneous with, Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), a lawful arrest, United States v. Rabinowitz, 339 U.S. 56, 60-61, 70 S.Ct. 430, 94 L.Ed. 653 (1950),³ we do not consider the consent issue.

PROBABLE CAUSE

Whether probable cause exists to make an arrest turns upon the facts of the particular case. Pigg v. United States, 337 F.2d 302, 305 (8th Cir. 1964). Its existence here turns on whether the broadcast description of the suspect was sufficiently detailed so as "to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The trial court, after a full hearing, held:

"The officers were in fresh pursuit, that they had reasonable cause to suspect and to believe defendant was the robber and reasonable grounds to arrest defendant. * * *"

The facts support the trial court's conclusion.

Detective Michel was looking for a person matching the following description: white, male, 35-45 years old, slender build, less than five feet six inches in height, brown hair, turning gray, needing a shave, hatless and located in a limited geographic area.

This was not a general description applicable to a large number of people. It was reasonably detailed and specific. Detective Michel testified that the defendant matched the description in every respect. The trial court found that the defendant matched the description. The defendant was found in the limited geographic area where the suspect was reported to have fled. The two officers were in "hot pursuit" of the suspect. Under such circumstances, it cannot be said that the arrest of the defendant was based on mere suspicion, Pigg v. United States, supra, or was an arrest for investigatory purposes. Compare Rodgers v. United States, 362 F.2d 358 (8th Cir.), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966); Gatlin v. United States, 117 U. S. App.D.C. 123, 326 F.2d 666 (1963). The facts are such that a reasonably prudent man, independent of evidence obtained in the search, could conclude that the defendant was the person who robbed the savings and loan association.

"In dealing with probable cause, however, as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."

Brinegar v. United States, 338 U.S. at 175, 69 S.Ct. at 1310. See, Jackson v. United States, 408 F.2d 1165 (8th Cir. 1969); Kayser v. United States, 394 F.2d 601 (8th Cir.), cert. denied, 393 U.S. 919, 89 S.Ct. 250, 21 L.Ed.2d 206 (1968); Gullett v. United States, 387 F.2d 307 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968); Dupree v. United States, 380 F.2d 233 (8th Cir. 1967), cert. denied, 392 U.S. 944, 88 S.Ct. 2289, 20 L.Ed.2d 1407 (1968).

The defendant's reliance upon Detective Michel's testimony that "the bullets convinced him that the defendant was the one who robbed the bank" to establish lack of probable cause is misplaced. When the statement is read in context, it indicates only that the discovery of the bullets only seemed to strengthen the detective's reasonable belief that he had the right man. To the extent that testimony tends to show Detective Michel's state of mind at the time, it is of limited importance. Our primary concern is not with the officer's state of mind but with whether, viewed in retrospect, the objective facts were such as to justify a prudent person in believing that he had enough facts on which to base an arrest before a search was made. Compare, Klingler v. United States, 409 F.2d 299 (8th Cir. 1969), where the officer, having probable cause to arrest for armed robbery, arrested the petitioner on the grounds of vagrancy. There, the Court stated:

"Because probable cause for an arrest is determined by objective facts, it is immaterial that Kisecker, at the hearing on the motion to suppress, testified that he did not think that he had `enough facts\' upon which to arrest Klingler for armed robbery. His subjective opinion is not material. See, Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A constitutional safeguard predicated on an objective standard requires an even-handed application. From the standpoint of the individual, the figurative zone protecting his privacy and personal integrity may be encroached under the law only by facts and circumstances totaling probable cause for arrest. See, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Johnson v. United States, 333 U.S. 10, 14, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948). * * *"

409 F.2d at 304.

TIMING OF THE ARREST

The defendant contends that he was not...