Kaufman v. United States

• Decision Date: 23 December 1971
• Docket Number: No. 71-1118.,71-1118.
• Citation: 453 F.2d 798
• Parties: Harold KAUFMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 798 (1971)

Harold KAUFMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 71-1118.

United States Court of Appeals, Eighth Circuit.

December 23, 1971.

William C. Erbecker, Indianapolis, Ind., for appellant.

Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., and William C. Martin, Asst. U. S. Atty., for appellee.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an action under 28 U.S.C. § 2255 to vacate Kaufman's sentence and judgment of conviction resulting from a trial in 1964 in United States District Court for the Eastern District of Missouri. In that trial, Kaufman was convicted of armed robbery of a federally insured savings and loan association. His only defense was insanity, and on appeal, this Court affirmed. Kaufman v. United States, 350 F.2d 408 (8th Cir. 1965), cert. denied, 383 U.S. 951, 86 S. Ct. 1211, 16 L.Ed.2d 212 (1966). In June of 1966, Kaufman filed a motion to vacate his sentence under § 2255, and the hearing thereon was held on December 9, 1966. A supplemental motion to vacate sentence was filed by court appointed counsel prior to that hearing alleging as one ground for relief that certain items had been admitted into evidence at the trial after being obtained as the result of an unlawful search and seizure. Other issues were also presented and determined by the United States District Court against Kaufman in its opinion dated March 16, 1967. Kaufman v. United States, 268 F.Supp. 484 (E.D.Mo.1967).

In that opinion, Judge Regan, consistent with prior decisions of this Circuit, ruled that the alleged error relating to unlawful search and seizure could not be raised in a § 2255 proceeding and denied leave to appeal in forma pauperis. This denial was upheld by this Court, and the case was appealed to the Supreme Court. On March 24, 1969, the Supreme Court reversed and remanded, holding that a claim of unconstitutional search and seizure is cognizable in a § 2255 proceeding. Kaufman v. United States, 394 U. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (5-3 decision).

On remand, the United States District Court, 323 F.Supp. 623, considered the search and seizure claims of Kaufman and their effect on his defense of insanity and again overruled the motion to vacate judgment and sentence. Kaufman again has appealed to this Court, alleging (1) certain items were illegally seized as a result of three separate but related searches, and that their reception into evidence was prejudicial to his insanity defense; (2) on remand, the trial court failed to accord him a full evidentiary hearing consistent with the opinion of the Supreme Court; (3) the trial court erroneously denied his counsel leave to file a supplemental motion; and (4) the trial court was biased and prejudiced as evidenced by the unconscionable delay in rendering a decision. For the reasons hereinafter set forth, we affirm the judgment of the trial court.

Kaufman robbed the River Roads Branch of the Roosevelt Federal Savings and Loan Association in Jennings, Missouri at about 4:00 p. m., on December 16, 1963. The proceeds of the robbery were $328.50 in cash, including 50 one-dollar bills whose serial numbers had been recorded, and two packets of American Express travelers checks totaling $11,520.00.

Kaufman fled the scene of the robbery in a 1963 red Rambler car bearing New York license 8Z6367 and, while fleeing, was involved in a hit-run accident. The hit-run accident information was radioed to the police at Alton, Illinois, and shortly thereafter, Officer Stahl of the Alton Police Department observed the car come into Alton over the bridge from Missouri. He signaled for the driver to pull over, but Kaufman attempted a sharp right turn, skidded on the ice and crashed into a tree.

He was placed under arrest by Officer Stahl and was taken to the police station where he was processed for detention. While he was being processed, the police took from his possession $352.00 in cash, including the one-dollar bills whose serial numbers had been recorded by the savings and loan association, and a rental contract for the Rambler car. The Rambler car was towed by Clifford Martin, operator of a private towing service, to Martin's garage. While Martin was inspecting the car, he discovered a revolver, in plain view, on the back seat. He called the Alton Police Department, and Officer Stahl was sent to the garage. Martin removed the gun, and, pursuant to Stahl's directions, placed it in a locked drawer in his office. It was delivered to the FBI later that evening.

FBI agent Peet arrived from St. Louis at about 5:45 p. m. and questioned Kaufman, who readily admitted the robbery and the hit-run accident. Peet then obtained authorization for prosecution from his superior and advised Kaufman he was under arrest on the federal robbery charge. At about 8:00 p. m. Agent Rushing took custody of Kaufman, together with the car rental contract and the $352.00 in cash and returned Kaufman to the FBI office in St. Louis.

After Kaufman was arrested on the federal charge, at about 9:30 p. m., FBI agents searched the red Rambler car, without a search warrant, and found two packets containing the stolen travelers checks, two gasoline sales receipts dated December 15, 1969, from Pennsylvania, a receipt for a Western Union telegraph money order sent by "Paul King" from Harrisburg, Pa. to Kaufman's girlfriend in New York City, and a receipt showing the name of a gun shop at which the pistol used in the robbery had been obtained earlier that day.

At the trial, all of the seized items, except the receipt showing the name of the gun shop, were introduced into evidence. Counsel for Kaufman did not file a pretrial motion to suppress this evidence, but did object to the admission into evidence of each of these items, except the gun and the travelers checks. While the gun shop receipt was not introduced, the operator of the gun shop, Mr. Davis gave testimony for the Government at the trial bearing on the issue of insanity to the effect that Kaufman had been calm and coherent shortly before the robbery.

I. SEARCH OF KAUFMAN'S PERSON

The first search that took place was a search of Kaufman's person and removal of his personal effects from his clothing. This search was made at the time he was booked in connection with his arrest after his motor vehicle accidents. This issue was raised by a supplemental motion filed by Kaufman's retained attorney after the second evidentiary hearing, but prior to opinion. The trial court refused to allow the late filing of the supplemental motion, but proceeded to the merits (as do we), and determined that since Kaufman was arrested for reckless driving and excessive speed which were observed by the arresting officer, there was probable cause for his arrest; and the "inventory" of the items on his person was not a search intended to obtain the fruits of a crime or evidence relating thereto. We agree that this "search" or "inventory" was proper under those circumstances and that the cash and the rental contract for the car were properly admitted into evidence.

The law in this regard is well expressed in Cotton v. United States, 371 F.2d 385, 392 (9th Cir. 1967) where the court said as follows:

"It was proper for the police to require Cotton to turn over to them, when he was booked, the property, including papers, that he had on his person. This is standard and necessary police practice. Charles v. United States, 9 Cir., 1960, 278 F.2d 386, 389. Compliance with this requirement does not subject the arrested person to an unlawful search where as here, he has been lawfully arrested. It is settled that police may search the person whom they arrest. Preston v. United States, 1964, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777; United States v. Rabinowitz, 1950, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653. We cannot see that it makes any difference whether this is done on the spot or at the jail where he is booked. See Baskerville v. United States, 10 Cir., 1955, 227 F.2d 454."

See also United States v. Gonzalez-Perez, 426 F.2d 1283, 1287 (5th Cir. 1970) wherein the Fifth Circuit stated:

"Here, the arrestees themselves were searched at a time and place different from that of the arrest. A search of an arrestee is still incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest. Ray v. United States, 9 Cir. 1969, 412 F.2d 1052; Cotton v. United States, 9 Cir. 1967, 371 F.2d 385, 392; Baskerville v. United States, 10 Cir. 1955, 227 F.2d 454, 456; see United States v. Miles, 3 Cir. 1969, 413 F.2d 34, 40-41; Malone v. Crouse, 10 Cir. 1967, 380 F.2d 741; Rodgers v. United States, 8 Cir. 1966, 362 F.2d 358, cert. denied 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454. The arresting officers are not required to stand in a public place examining papers or other evidence on the person of the defendant in order for such evidence to be admissible."

II. THE GUN

The gun used by Kaufman in the robbery was admitted into evidence without objection. It had been taken from the back seat of the car by the garage owner who had custody of the car subsequent to the accident. The gun was in plain view of Martin and the trial court correctly held that the discovery of the gun was not the result of a search in the legal sense, and that it was properly admitted into evidence.

In the case of Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971), the Supreme Court determined that guns given to officers by the wife of defendant were not the product of an illegal search and stated that the proper test to be applied is whether "in light of all the circumstances of the case," the person who discovered the evidence and turned it over to the police, "must be regarded as having acted as an `instrument' or agent of the state. . .". In this case, Martin was not looking for evidence and was not acting as an ...