United States v. Salvo, 71-1020 Summary Calendar.

Decision Date19 October 1971
Docket NumberNo. 71-1020 Summary Calendar.,71-1020 Summary Calendar.
Citation447 F.2d 474
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Gasper SALVO, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Robert C. Stone, J. Leonard Fleet, Hollywood, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Marsha L. Lyons, Asst. U. S. Atty., Miami, for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Certiorari Denied October 19, 1971. See 92 S.Ct. 218.

THORNBERRY, Circuit Judge:

Charles Gasper Salvo was indicted for receiving and possessing 59 Westinghouse air conditioners, valued in excess of $100, and 67 cases of Miller's High Life beer, valued in excess of $100, stolen while moving in interstate commerce, and knowing same to be stolen, in violation of 18 U.S.C. § 659. A jury subsequently found him guilty as charged, and he was sentenced to a period of incarceration of two and one-half years. He appeals, and we affirm.

During the course of the trial appellant moved for the suppression of the evidence on the grounds that there was no probable cause for the search of the premises upon which the stolen articles were found and no probable cause for his arrest. The district court denied the motion, a determination that appellant, as his first point of error, attacks as erroneous. The search and arrest were made in the following circumstances. Police officers, acting on the tip of an informant who had purchased a Westinghouse air conditioner bearing the serial number of one that had recently been stolen from a railroad boxcar in Fort Lauderdale, Florida, had placed under surveillance a certain blue panel truck and its occupants, two young men who were believed to be involved in the theft. On the date in question the officers followed the truck to the rear of the Roman Candle Restaurant in Plantation, Florida. After the officers observed the men loading boxes into the truck, which was parked in an alley separating the shopping center in which the restaurant is located from the business adjacent to it, the officers advanced toward the suspects. While one officer walked toward the suspect in the truck, another officer walked toward the restaurant's back door, which opened onto the alley. Through the open door he observed two uncrated air conditioners and stacks of boxes that bore the imprint "Westinghouse." In addition, he saw a stack of red and white boxes marked "Miller." When he identified himself as an officer, the subject inside the building slammed the door and bolted the lock. The officer then entered the restaurant through a side door, located the owner, explained what had transpired, and secured his permission to search the storage room in which the subject was believed to be hiding and in which the beer and air conditioners were resting. Upon entering the room, the officer discovered that the subject had fled but had been apprehended by another officer. A canvass of the serial numbers of the air conditioners confirmed that they were indeed the stolen items. After learning from the restaurant's owner that the stolen items had been placed in the storeroom by one Charles Salvo and a companion, the officers proceeded to the grocery store in which appellant was a part-time employee and placed him under arrest.

The Supreme Court has noted that "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence." Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). In the instant matter the officer was lawfully in the alley that ran alongside the...

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5 cases
  • Fixel v. Wainwright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 10, 1974
    ...390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L. Ed.2d 1067 (1968); Walker v. Beto, 5 Cir., 1971, 437 F.2d 1018, 1019; United States v. Salvo, 5 Cir., 1971, 447 F.2d 474, 475. It was not necessary under these circumstances for the police officers to secure a search warrant for, as the Supreme Co......
  • United States v. Knight
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 28, 1972
    ...in all respects, the cartons of spark plugs had been seen and all the defendants had attempted to flee. See United States v. Salvo, 5th Cir. 1971, 447 F.2d 474 1971; United States v. Birdsong, 5th Cir. 1971, 446 F.2d 325 1971; United States v. Miles, 5th Cir. 1971, 445 F.2d 974 1971; United......
  • Smith v. Brookshire Bros., Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 15, 1975
    ...a valid complaint having been filed and without knowing the facts to believe that a crime had been committed. See United States v. Salvo, 5 Cir. 1971, 447 F.2d 474; United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795. Instead, they depended on the conclusory assessment of the store officer......
  • Spiller v. City of Texas City Police Dept.
    • United States
    • U.S. District Court — Southern District of Texas
    • December 5, 1996
    ...meets the constitutional requirement of probable cause. Hunter v. Clardy, 558 F.2d 290, 291 (5th Cir.1977) (citing United States v. Salvo, 447 F.2d 474, 475-76 (5th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 The Court finds sufficient probable cause in the instant case ......
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