United States v. Gunn, 28026.
| Decision Date | 25 June 1970 |
| Docket Number | No. 28026.,28026. |
| Citation | 428 F.2d 1057 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frankie GUNN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. Pope Gordon, Montgomery, Ala., court-appointed, for appellant, Mrs. Frankie Gunn, pro se.
Ira De Ment, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for appellee.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Frankie Gunn appeals from her conviction on all six counts of an indictment charging her with mail fraud in violation of 18 U.S.C. § 1341. The indictment specifically charged Gunn with using the mails as part of a scheme to defraud through the employment of gasoline company credit cards issued to others, during the months of June, August, and September 1968. On this appeal Gunn does not question the sufficiency of the evidence to convict her. Instead, as in the pretrial hearing on her motion to suppress, she questions the admissibility of certain evidence at her trial in light of applicable federal standards. We conclude that her trial comported with these standards and affirm the judgment of conviction.
In July 1968, Charles Davis, a federal postal inspector, received a complaint from Alexander Susha involving the unauthorized use by an unknown person of a gasoline company credit card issued to Susha. Until September 25, 1968, Davis corresponded with gasoline companies and obtained certain invoices, but otherwise conducted no investigation of the complaint. On the morning of September 25, Davis checked certain vehicle registration records and, through these records, traced a certain tag number and vehicle to Frankie Gunn. The tag number indicated that the vehicle was an Oldsmobile. From the person who had sold the Oldsmobile to Gunn, Davis obtained a description of Gunn and learned that she was employed at Head's Car Wash on the Southern Bypass in Montgomery, Alabama. Davis had an invoice indicating that the Susha card had been used to make a purchase at a service station on the Southern Bypass. Davis went there and interviewed the operator, Willie Holladay. Holladay described the customer who had used the Susha card. This description resembled the description Davis had previously received of Gunn. Davis then went to Head's Car Wash, where Frankie Gunn and her automobile were pointed out to him. The automobile was a Plymouth, and its tag number did not appear on the invoices he was investigating. Davis then left the car wash to check the Plymouth tag number. He determined that the tag had been issued to a Ford automobile, not a Plymouth. Davis then contacted two Montgomery city detectives who investigated automobile thefts and with whom Davis had worked before on investigations. The postal inspector, advising the detectives that he was working on a credit card case, asked if they were interested in checking the Plymouth. The detectives replied that they were interested.
On the afternoon of September 25, Davis returned to Head's Car Wash with the two detectives. Neither Davis nor the detectives had arrest or search warrants. One detective, telling Gunn that the Plymouth was improperly tagged, then questioned her regarding the ownership of the car. Gunn stated that she owned the car and, in response to the detective's request for proof went to the car to search for the bill of sale. While she was handling papers she had taken from the glove compartment, a credit card fell to the floor of the car in the view of one detective. He handed the card, which had been issued to R. M. Srygley, to Davis. The postal inspector had not previously been investigating use of a credit card issued to this man. Aware that Gunn was on parole from the State of Alabama, Davis then informed Gunn of her Miranda rights with the use of a warning-and-waiver form. Gunn stated that she understood, but refused to sign the form. Davis then looked at the tires on the Plymouth. He noted that one of the tires, whose serial number faced outward had a number matching the serial number on one of the Susha credit card invoices. The other tires, whose numbers faced inward, were then checked by a city detective, who had to crawl under the car to obtain them. One of these tires also appeared to have been purchased with the Susha credit card. The detectives then took Gunn into the office of the car wash. There they called her parole officer, a Mr. Shook, and advised him of the circumstances attending the questioning of Gunn and of what they had apparently discovered. Shook replied that he would meet them at the Montgomery city jail with a parole violation warrant for Gunn and requested that they arrest Gunn. The arrest was formally made, and Davis, Gunn, and a city detective proceeded to the jail in a city automobile. On the way, Gunn was taken to Holladay's service station, where the two tires had been purchased with the Susha card. She was there exhibited to Holladay.
At the jail Gunn was booked for parole violation. Davis asked her for handwriting exemplars, and Gunn gave them. Then, on September 26, a warrant for Gunn's arrest for mail fraud was sworn out by the postal inspector and Gunn was taken before a United States Commissioner that afternoon. At this time she first asked for a lawyer to represent her. On September 27, Davis asked Gunn for a second set of handwriting specimens, after first advising her of her constitutional rights. She complied. A lawyer was appointed for Gunn on September 30, and prosecution on the federal charges followed.
Before trial Gunn filed a motion to suppress for use as evidence by the prosecution, among other items, (1) the matter taken from her automobile while she, Davis, and the city detectives were at Head's Car Wash, (2) the handwriting exemplars, and (3) the eyewitness identification of her by Holladay. A hearing was conducted on this motion under Fed.R.Crim.P. 41(e). At this hearing Davis, the two city detectives, and Gunn testified. Thereafter the District Judge, filing findings and conclusions, denied the motion. The evidence here complained of was then introduced at trial by the Government, and, the jury returned a verdict of guilty on all six counts.
On this appeal Gunn contends principally that she was unlawfully arrested, that the taking of the serial numbers of the tires on her car was an unlawful search and seizure, and that the arresting officer unnecessarily delayed in taking her before a United States Commissioner in violation of Fed.R.Crim.P. 5 (a).
We first consider the validity of Gunn's arrest on September 25. Gunn argues that the city detectives did not have probable cause to arrest her and that they arrested her in violation of Ala.Code tit. 42, § 10. This section provides:
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