United States v. Croft

• Decision Date: 01 September 1970
• Docket Number: No. 124-70.,124-70.
• Citation: 429 F.2d 884
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leamon Lee CROFT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

429 F.2d 884 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Leamon Lee CROFT, Defendant-Appellant.

No. 124-70.

United States Court of Appeals, Tenth Circuit.

September 1, 1970.

Louis A. Mankus, Cheyenne, Wyo., for appellant.

Richard V. Thomas, U. S. Atty. (Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., with him on the brief), for appellee.

Before LEWIS, Chief Judge, JOHN R. BROWN, Chief Judge,^* and SETH, Circuit Judge.

LEWIS, Chief Judge.

The defendant-appellant was found guilty by a jury on each of four counts of an indictment charging violations of the Dyer Act, 18 U.S.C. § 2314. Counts one through three charged the unlawful interstate transportation of certain forged bank checks, and count four charged the unlawful interstate transportation of a check protector. Concurrent sentences were imposed on each count. The defendant now challenges the validity of his arrest, the evidentiary fruits of the search of both his automobile and his motel room, and his identification by witnesses at trial by claim of impermissibly suggestive photographic identification made prior to trial.

Defendant was operating his automobile eleven miles east of Pratt, Kansas on the morning of July 10, 1969 when he was stopped at a roadblock by an officer of the Kansas Highway Patrol. The officer later testified that he was conducting driver's license checks on his own volition and that defendant's car was the first he had stopped that morning. After discovering that defendant did not have a driver's license and that there was an opened bottle of liquor on the front seat,¹ the officer arrested defendant for both violations and placed him handcuffed in the patrol car. The officer then returned to defendant's automobile and searched the glove compartment, finding a key to a room at the Wilcox Motel in Syracuse, Kansas and ten suspicious looking checks. The officer did not extend his search immediately but obtained a search warrant using the checks as a basis for probable cause. A subsequent search of the vehicle uncovered no additional evidence.

The owner of the Wilcox Motel testified that defendant rented a room on July 8 for two days. Shortly after noon on July 10 the local county attorney and county sheriff came to the motel and were permitted by the owner to search the room that had been rented to defendant. This search disclosed, in addition to personal effects, a cardboard box containing a check protector. These items were retained by the motel owner in his office, but several days later an agent of the F.B.I. called at the motel and took possession of the check protector. At no time was a search warrant shown to the motel owner.

At trial, witnesses identified defendant as the man who cashed three forged checks in Cheyenne, Wyoming similar to the ones found in defendant's car. The motel key, the checks taken from defendant's car, and the check protector were admitted into evidence over objection. Expert testimony established that the check protector had been used in drawing the forged checks.

Defendant does not contend that a Kansas law officer cannot make a lawful warrantless arrest where, as here, a misdemeanor is committed in the officer's presence nor that a properly administered driver's license check is not a proper police function. See Myricks v. United States, 5 Cir., 370 F.2d 901, cert. denied, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474; Lipton v. United States, 9 Cir., 348 F.2d 591. Defendant does argue, however, that the stopping of motor vehicles without probable cause for the purpose of driver's license checking is a procedure so inherently subject to abuse that such roadblocks can be constitutionally justified only when they are set up as a command decision and not at the initiation of a single patrolman. We must reject this distinction as a constitutional requirement. The evidence in the case at bar shows no past or present abuse of the practice and does show general departmental authority given to the individual patrolman to conduct discretionary driver's license checks. Defendant was not singled out for this check but was simply the first car stopped. We conclude that he was both lawfully stopped and arrested. It follows that the search of his car, although not justified as incident to his arrest, was made with probable cause under the mandate of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, 1970. Both the lack of a driver's license and the open discovery of contraband were sufficient cause to premise the limited search made at the scene of arrest.

The subsequent search of the motel room and seizure of the check protector are subject...