412 F.2d 98 (8th Cir. 1969), 19421, United States v. Skinner

Docket Nº:19421.
Citation:412 F.2d 98
Party Name:UNITED STATES of America, Appellee, v. Doyle Ray SKINNER, Appellant.
Case Date:June 18, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 98

412 F.2d 98 (8th Cir. 1969)

UNITED STATES of America, Appellee,

v.

Doyle Ray SKINNER, Appellant.

No. 19421.

United States Court of Appeals, Eighth Circuit.

June 18, 1969

Page 99

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

J. Earl Cudd, Asst. U.S. Atty., Mineapolis, 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

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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.

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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...

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