429 F.2d 1327 (8th Cir. 1970), 19872, Turk v. United States
|Docket Nº:||19872, 19873, 19889, 19905.|
|Citation:||429 F.2d 1327|
|Party Name:||William Donald TURK, Appellant, v. UNITED STATES of America, Appellee. Roswell William WIXOM, Appellant, v. UNITED STATES of America, Appellee. Robert Douglas BRITTON, Appellant, v. UNITED STATES of America, Appellee. George Leo COLEMAN, Appellant, v. UNITED STATES of America, Appellee.|
|Case Date:||August 27, 1970|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Samuel P. Caniglia, of Caniglia & Seminara, Omaha, Neb., made argument for appellant William Donald Turk.
Samuel V. Cooper, Omaha, Neb., made argument for appellant Roswell William Wixom.
John Grant, of Kelley, Grant, Costello & Dugan, Omaha, Neb., made argument for appellant Robert Douglas Britton.
David S. Lathrop, of Lathrop & Albracht, Omaha, Neb., made argument for appellant George Leo Coleman.
One brief was filed by all the above attorneys for the appellants with the exception that Michael J. Dugan, of Kelley, Grant, Costello & Dugan, Omaha, Neb., was on the brief instead of Mr. Grant of this firm who made the argument.
William J. Tighe, Asst. U.S. Atty., Omaha, Neb., for appellee; Richard A. Dier, U.S. Atty., was on the brief with Mr. Tighe.
Before MATTHES, Chief Judge, and LAY and HEANEY, Circuit Judges.
LAY, Circuit Judge.
Defendants appeal their conviction for possession of counterfeit notes of the United States with intent to defraud in violation of 18 U.S.C.A. § 472. The defendants were arrested in Omaha, Nebraska, on the morning of November 16, 1968, in possession of counterfeit $20 bills totalling approximately $80,000. The basic issue on appeal, which is raised by all defendants, concerns the existence of probable cause for their arrest to justify the warrantless search. Error is also asserted by the defendant Wixom as to the sufficiency of the evidence to sustain his conviction and in the trial court's denial of a requested instruction on constructive and joint possession. We reverse and remand for further proceedings on the question of probable cause.
The testimony of the government relating to the arrest and search, produced at the hearing on the motion to suppress the evidence seized, may be briefly summarized. Sometime prior to the arrest,
Sgt. Perry of the Omaha Police Department had been told by a fellow police officer, Sgt. Gentleman, that there had been reports of Collins Radio Laboratory checks being passed in the Cedar Rapids, Iowa, area. Collins Radio Laboratory is located in Cedar Rapids. On October 24, 1968, an Omaha photo engraving company had reported to the police that the defendant Wixom, under what was later discovered to be a false identity, had brought to the company a Collins Radio check, and purchased a negative of the check with the amount and the name of the payee taped out. The following day Wixom was observed by Omaha police entering the photo engraving company; he was driven to and from the company by the defendant Coleman, who was known, at the time of the arrest, to be in the printing business. Surveillance of these defendants was reactivated on November 15, presumably because of the passing of Collins Radio checks in the Cedar Rapids area. Coleman was stopped in Omaha that day on the pretext that he was driving a stolen car. It was then observed by a police officer that Coleman had a green substance under his fingernails. He was immediately released and thereafter followed to the Town House Motel, Room 116. At approximately 1:00 o'clock in the afternoon the defendant Turk, known by local police to be a 'dangerous character,' arrived in a Buick convertible with an Iowa license plate and was observed going into the same room. The registration of this car was traced to Lynn County, Iowa (of which Cedar Rapids is the county seat). The defendants Britton and Wixom were also observed entering Room 116. Britton resembled an individual wanted in Cedar Rapids. The police carried on the surveillance throughout the day and evening. During the day Coleman was observed carrying a light bar and later a machine (which was subsequently identified to be a photocopier) into the room. The evidence showed that later in the evening the officers conducting the surveillance could hear machinery running in the room.
At 1:30 a.m. on the following morning, November 16, 1968, the four defendants emerged from the motel room carrying attache cases and suitcases to their cars. When they placed the cases in their two vehicles the officers conducting the surveillance became concerned over the...
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