United States v. Atkinson, 71-1721 Summary Calendar.

• Decision Date: 15 November 1971
• Docket Number: No. 71-1721 Summary Calendar.,71-1721 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James William ATKINSON, a/k/a Walter J. Atkinson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 835 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James William ATKINSON, a/k/a Walter J. Atkinson, Defendant-Appellant.

No. 71-1721 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 8, 1971.

Rehearing and Rehearing Denied November 15, 1971.

Harry L. Kelley, Jackson, Miss. (Court Appointed), for defendant-appellant.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 15, 1971.

CLARK, Circuit Judge:

Atkinson was convicted in his jury trial below of unlawfully transporting in interstate commerce stolen United States Savings Bonds in the amount of 85,000 dollars, knowing the same to have been stolen, in violation of 18 U.S.C.A. § 2314 (1970). On appeal, he alleges three errors: (1) that the bonds themselves were produced as a result of an illegal search and seizure under the rule excluding the fruits of such conduct, and should not have been admitted into evidence; (2) that Atkinson's oral confession to an agent of the Federal Bureau of Investigation (FBI) was obtained in violation of Rule 5(a) of the Federal Rules of Criminal Procedure, making it, too, inadmissible; and (3) that the confession should not have been admitted in any event since the government violated the rule of Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) by failing to produce all the police officers who were present at the time Atkinson confessed. The record is replete with contradictions and inconsistencies; however, construing the evidence in a light most favorable to the government¹ discloses that Atkinson's three alleged errors have no merit. We affirm his conviction.

Armistead, the state officer who initially arrested Atkinson, received word from an informant, on the evening of October 16, 1970, that a man who was "hot"—wanted in Texas or Oklahoma— was staying at a motel in Jackson, Mississippi and was spending a great deal of money there. Armistead went to that motel, discovered that the man in question (Atkinson) was registered under a fictitious name and address, and also learned that the man's car had an improper license tag attached to it. Armistead engaged Atkinson in conversation in the motel lounge during which Atkinson identified himself as Rudy Baron, a pilot for a movie studio. Armistead informed Atkinson that he was a Highway Patrolman and suggested that the two of them go to Atkinson's room in order to avoid causing an embarrassing situation in the lounge. Atkinson agreed to the suggestion.

Shortly after the two were inside Atkinson's room, Armistead arrested Atkinson without a warrant on a charge of false pretenses,² and gave him at least a partial list of the required Miranda warnings. Armistead then took Atkinson to the Jackson Police Station, where the latter was booked, photographed, and fingerprinted. Atkinson was kept at the station for approximately thirty minutes, during which time several officers attempted to learn his identity in order to determine exactly where and for what he was wanted. They were unsuccessful. At this point, even though they felt they possessed adequate proof to hold Atkinson on the false pretenses charge, the police determined that since Atkinson had agreed to leave town, Armistead should return with him to the motel, and "if nothing turned up," Atkinson should be released.

Something did turn up. Back at the motel, Atkinson went to the office, paid his bill and asked Armistead to come to the room so that Armistead could see that he was leaving town. While in the room watching Atkinson pack, Armistead spotted a plastic bag sticking out from under a stack of dirty clothes, and saw the 5,000 dollar marking on a United States Savings Bond in the bag. When Armistead asked Atkinson about the contents of the plastic bag, Atkinson "spilled the beans". He took the bonds out of the bag, threw them on the bed, revealed his actual identity, and confessed to stealing the bonds in Texas and transporting them to Jackson. Aware of the federal criminal implications of the theft, Armistead then notified the FBI that Atkinson was being held and returned him to the Jackson Police Station under the false pretense charge.

FBI Agent Martin, unaware of the bond theft, and knowing only that Atkinson was wanted on a flight from prosecution charge in Arizona, reached the jail at approximately 12:45 a. m. the morning of October 17. Atkinson refused to talk to Martin at that time, but told him to come back the next morning. At 9:55 a. m. Martin returned; before talking with Atkinson, Martin gave him a waiver of rights form which contained all the requisite Miranda warnings. Atkinson read it, signed it, and said he understood it. Thereafter Atkinson told Martin not only about the flight charge, but also again confessed to the bond theft.

At trial, appellant Atkinson timely objected to the admission of the bonds and to the admission of the confession given Martin. The district judge held preliminary hearings outside the presence of the jury and found the former not to have been illegally seized and the latter not to have been involuntarily offered. Upon the record before us, there is sufficient evidence to support both these findings.

I. THE ADMISSIBILITY OF THE BONDS

In support of his claim that the bonds were admitted into evidence in violation of his Fourth Amendment rights, appellant advances two arguments. He contends first that there was no probable cause to arrest him, and hence the bonds were the fruits of that illegal arrest. He contends in the alternative that even if there were probable cause to arrest, the bonds were discovered during a warrantless search so removed in time from the arrest as not to be an incident thereof, and since the search did not fall into any other exception excusing the need for a warrant, it was unreasonable. Both of these contentions are without merit.

We note at the outset that we do not reach the question of whether the informant and his information were sufficiently reliable in themselves to meet the tests for probable cause. That information served only to direct attention toward Atkinson and to indicate his whereabouts. The requisite grounds of probable cause in this case find their basis in the first-hand knowledge of the arresting officer, Armistead, which he gained as a result of personal investigation. Armistead knew that Atkinson was registered under a fictitious name and address at a motel where he had run up a rather sizable bill; he also knew that defendant's car was improperly tagged. Considering that Atkinson had not yet paid the bill, the former facts were arguably sufficient to warrant a prudent man in believing that the crime of false pretenses, a felony in Mississippi, had been committed; moreover, and more importantly, Armistead's knowledge regarding the improper license tag was unquestionably sufficient to warrant his belief that Atkinson was guilty of committing a misdemeanor. Atkinson strongly urges that a conviction could not have been obtained on the false pretenses charge, and as that was the only offense with which he was charged by the Jackson Police, and the one for which he was told he was being arrested, that the arrest and everything resulting therefrom must be deemed fatally tainted. Atkinson's perspective on this issue is misplaced. We pause on his argument only long enough to say that the test for probable cause does not involve speculation about the outcome of a trial on the merits of a particular charge, but rather upon an assessment of whether the knowledge of the arresting officer at the time of the arrest would be sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). We need not decide whether this arrest would have been without probable cause had the facts within Armistead's personal knowledge at the time of arrest been only those supporting a belief that Atkinson had committed the offence of false pretenses, for here Armistead possessed conclusive evidence that Atkinson was committing a misdemeanor by operating his automobile with an improper tag. Atkinson has not challenged this fact.

That the officer elected to charge Atkinson with the more serious of the two crimes involved does not prevent the validity of the arrest from resting on the lesser crime. Mills v. Wainwright, 415 F.2d 787 (5th Cir. 1969). We said in Mills that "we want it well understood that when a crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, then there is no question but that there is a valid arrest." Any other rule would force police officers to routinely charge every citizen taken into custody with every offense they thought he could be held for in order to increase the chances that at least one charge would survive the test for probable cause. Such a clogging of the criminal process already heavily encumbered, would be pointless. We thus decide that there was probable cause to arrest for the improperly displayed license tag, and we look no further.

This is not to say that this Court will indulge in ex post facto extrapolations of all crimes that might have been charged on a given set of facts at the moment of arrest, nor that we will look favorably upon arguments of the government doing the same. Such an exercise might permit an arrest that was a sham or fraud at the outset, really unrelated to the crime for which probable cause to arrest was actually present to be retroactively validated. This was the practice condemned in Mills, and we in nowise enervate that condemnation now. In this case, the undisputed evidence shows that the police officer had at the time of...