United States v. Ravich

• Decision Date: 06 February 1970
• Docket Number: 33861.,No. 438,Dockets 33860,439,438
• Parties: UNITED STATES of America, Appellee, v. Ronald Raymond RAVICH and Edward McConnell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

421 F.2d 1196 (1970)

UNITED STATES of America, Appellee, v. Ronald Raymond RAVICH and Edward McConnell, Defendants-Appellants.

Nos. 438, 439, Dockets 33860, 33861.

United States Court of Appeals, Second Circuit.

Argued January 9, 1970.

Decided February 6, 1970.

COPYRIGHT MATERIAL OMITTED

David P. Steinmann, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Neaher, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.

Richard I. Rosenkranz, Brooklyn, N. Y., for defendant-appellant Ronald Raymond Ravich.

Harold E. Heller, Bellmore, N. Y., for defendant-appellant Edward M. McConnell.

Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and MANSFIELD, District Judge.^*

FRIENDLY, Circuit Judge:

Ronald Raymond Ravich and Edward McConnell were convicted in the District Court for the Eastern District of New York, after trial before Judge Zavatt and a jury, of bank robbery, bank robbery with the use of a dangerous weapon, and conspiracy to commit bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 371, and were given heavy sentences. The robbery, of a branch of the Franklin National Bank in Long Island City, by three men¹ on May 22, 1968, had netted a cash haul of $337,496. Extensive pre-trial hearings were held on a motion to suppress evidence seized in two motel rooms in Baton Rouge, Louisiana, where Ravich and McConnell were apprehended some six weeks after the robbery, and with respect to photographic and anticipated in-court identification by the bank employees. The more important points on appeal concern these matters. However, it will be convenient to begin by summarizing the case presented at the trial.

I.

Five bank employees testified that three men, armed with three pistols and a sawed-off shotgun, committed the robbery. The robbers did not wear masks, and the employees had an excellent opportunity to observe them. Five witnesses unhesitatingly identified Ravich as the leader. Four were positive that McConnell had entered the bank, armed with a pistol; the fifth also identified McConnell but was not positive of the identification. A young man testified that he had seen the robbers emerge from the bank and drive off in a late model white Chevrolet. A woman had observed the robbers switch from such a Chevrolet to a dark car driven by a female whom she identified as the Government's witness Lucy Georger. An FBI agent testified to finding a .38 caliber bullet on the floor of the abandoned Chevrolet and a rubber glove at the nearby curb.

Lucy Georger testified that two or three weeks before the robbery McConnell began staying over at the apartment she shared with Ravich; that she heard them plan the robbery; that she had purchased the rubber glove found by the FBI; that the late model white Chevrolet was stolen on the night before the robbery; that, at breakfast the next day, detailed plans for the robbery were settled; that she drove, with Ravich, McConnell and the third robber, to the place designated for the car switch; and that the three robbers drove off in the white Chevrolet and later returned. She described the division of the loot at the apartment and the preparations for flight. After McConnell had picked up his girl friend, Jama Zuber, their itinerary included Washington, D. C., Las Vegas, Los Angeles, New York City (to pick up phony identification papers), Philadelphia, Virginia Beach (where Ravich and McConnell spent two days boiling stolen new bills to give them an older appearance, and dyed or attempted to dye their hair), North Carolina, New Orleans (where McConnell purchased an automobile in the name of James Carroll), and ultimately Baton Rouge. Ravich had instructed her always to carry at least $5,000 in case a get-away was necessary, and Zuber also carried large amounts of money.

II.

This brings us to the circumstances of appellants' arrests: During the afternoon of July 5, 1968, the manager of a gas station in Baton Rouge, La., reported to the local police department that he had observed a large quantity of currency in the glove compartment of an automobile just leaving the station. Detectives Gill and Alford followed the car until its driver went through a stop sign, narrowly avoiding an accident. The officers stopped the car, which McConnell was driving and in which Zuber was a passenger. McConnell produced a New York driver's license in his own name but was unable to exhibit a registration for the car, which had Louisiana license plates; instead he produced a bill of sale from James Carroll, allegedly his uncle, who was said to be staying at the Travel Lodge Motel. The officers took McConnell and Zuber to the police station and McConnell's car was driven there. They sent McConnell's name to a nationally connected criminal identification system and were advised he was wanted for robbery in New York. A consent search of his car revealed two .38 caliber revolvers and ammunition, secreted in two suitcases in the trunk.

Zuber became quite talkative. She told the officers she and McConnell were staying at the Travel Lodge Motel with two persons who were registered as Mr. and Mrs. Thomas Moore but whose real names were Ronald Ravich and Lucy Georger. She confided that McConnell, Ravich and Georger "had pulled a job somewhere" and that a great deal of money was hidden in the motel rooms. Asked for identification, she opened her purse, which was observed to contain a large amount of currency, later counted as $3,582.

About 6:30 P.M., Gill and Alford went to Ravich's motel room, arrested Ravich and Georger as fugitives from New York, and found $5,557 in Ravich's wallet. They did not conduct a search of the room but left two uniformed policemen at the entrances to Ravich's room, No. 317, and the adjacent room, No. 316, which McConnell and Zuber had occupied. The FBI was notified and two agents came to the police station, where Ravich and Georger had also been taken. About 7:15 P.M. one of them called the FBI office in New York and obtained further details of the robbery.

Considerably later in the evening Gill and Alford went to the home of Judge Fred S. LeBlanc of the 19th Judicial District of Louisiana to secure warrants for the search of the two motel rooms. The officers presented affidavits which Judge LeBlanc felt were sufficient to establish probable cause, but out of an abundance of caution he discussed the facts with them at some length. At the suppression hearing he testified that on the basis of the affidavits and the oral discussion, which he had the officers swear to, he felt that there was not only "probable" cause but "positive" cause, and he accordingly issued warrants to search the two rooms. Upon returning to the station the officers found the FBI agents interviewing McConnell.² Around 11 P.M., Gill, Alford, another Baton Rouge police officer, and the two FBI agents executed the search warrants on the two rooms, which were connected by an unlocked door. The search, lasting several hours, disclosed large amounts of money, guns and ammunition.

III.

Defendants moved to suppress the fruits of the search on the grounds that the warrants did not contain a direction, required by both Louisiana law, La.Code Crim.Proc. art. 163, and F.R.Cr.P. 41 (c), that they might be executed at night, and that the moving affidavits were not "positive" that the property constituting the object of the search was in the place to be searched, a prerequisite under F.R.Cr.P. 41(c) for a direction in a federal warrant that it may be served at any time. Judge Zavatt granted the motion with respect to the search of McConnell's room but denied it with respect to the search of Ravich's on the ground that the latter was incident to Ravich's arrest.

In view of our holdings that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), is inapplicable to searches prior to June 23, 1969, United States v. Bennett, 2 Cir., 415 F.2d 1113 (1969); United States ex rel. Randazzo v. Follette, 2 Cir., 418 F.2d 1319, (Dec. 4, 1969), the validity of the ruling is governed by the law prior to Chimel. It is unquestionable that if Gill and Alford had searched Room 317 immediately following Ravich's arrest, the search would have been lawful under Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The difficulty lies in the delay of four and a half hours between the arrest and the beginning of the search.

Defendants naturally make much of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). The Government responds with decisions by courts of appeals which are alleged to recognize an exception to Preston where the search was "part of a continuing series of events which included the original arrest and continued uninterruptedly as lawful police investigation and action." Price v. United States, 121 U.S.App.D.C. 62, 348 F.2d 68, 70, cert. denied, 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125 (1965). The Price case itself is rather clearly distinguishable from this one. Some of the articles seized were seen when the defendant was arrested in his car on the street at night and the court refused to find illegality in failure to seize them until the car had been driven to the police station; seizure of an envelope some 20 or 25 minutes later was justified as incident to the arrest of a man who had entered the car in the police parking lot and had reached under the front seat. United States v. Gearhart, 326 F.2d 412 (4 Cir. 1964), where officers who had made an arrest on probable cause postponed a search pending an effort to obtain a search warrant but then failed to submit a proper affidavit, is of dubious value to the prosecution since it antedated Preston.³ In United States v. Masini, 358 F.2d 100, 102 (6 Cir. 1966), the delay was only "a matter of minutes." Harris v. Stephens, 361 F.2d 888, 892-893 (8...