462 F.2d 982 (8th Cir. 1972), 71-1411, United States v. Bazinet

• Citation: 462 F.2d 982
• Party Name: The UNITED STATES, Appellee, v. Michael BAZINET, Appellant. The UNITED STATES, Appellee, v. George KNOX, Appellant.
• Case Date: June 29, 1972
• Court: United States Courts of Appeals, U.S. Court of Appeals — Eighth Circuit

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462 F.2d 982 (8th Cir. 1972)

The UNITED STATES, Appellee,

v.

Michael BAZINET, Appellant.

The UNITED STATES, Appellee,

v.

George KNOX, Appellant.

Nos. 71-1411, 71-1412.

United States Court of Appeals, Eighth Circuit.

June 29, 1972

Submitted Feb. 14, 1972.

Rehearing Denied in No. 71-1412 July 25, 1972.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Lenore Miller, Minneapolis, Minn., for Bazinet.

Jack S. Nordby, St. Paul, Minn., for Knox.

Earl Cudd, Asst. U. S. Atty., Robert G. Renner, U. S. Atty., D.Minn., Minneapolis, Minn., for appellee.

Before BREITENSTEIN, ^[*] Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Michael Bazinet and George Knox ¹ were jointly tried and convicted of conspiracy to rob a federally insured bank in violation of 18 U.S.C. §§ 371 and 2113(a).

The defendants were arrested on December 4, 1970, at approximately 9:50 a. m. as the result of a police "stake-out" at Knox's grandmother's house. The officers had been sent by their superior officer, Captain Graff, to arrest Knox on sight for illegal dynamite trafficking. The police had no warrant and had not applied for one.

The stake-out officers observed a Volkswagen van drive up to Knox's grandmother's house. Michael Bazinet, unknown to the police at the time, was driving. The van belonged to his wife. Sarah Shosie, listed in the indictment as a co-conspirator, was seated in the front passenger seat and Knox was seated in the rear passenger seat. Knox exited from the vehicle and entered the house. About five minutes later, he returned to the VW van carrying a paper bag and resumed his place in the rear seat. The VW drove off, followed by the police. After several blocks, the police turned on their red lights and siren. As they did so, Knox bent down as if placing something on the floor.

When the van came to a halt, all three passengers were arrested. Knox was placed in the rear seat of the squad car; Bazinet and Shosie remained standing on the sidewalk. The police seized the paper bag from the rear passenger seat where it had been sitting next to Knox. Inside the bag they found leg irons, handcuffs, a knife, adhesive tape, a gas canister, and a homemade silencer which looked like a small detonating device. The police found a cigarette lighter shaped like a small pistol in Knox's pocket.

Captain Graff was called to the scene and arrived within a half hour of the arrests. Upon being informed of the contents of the paper bag, Graff read Bazinet his Miranda rights. He then requested and received Bazinet's permission to search the van. Graff testified that he was looking for explosives. He found none. He did, however, notice some notebooks and papers, which he did not seize, between the front bucket seats.

All three arrestees were taken to police headquarters. The van was impounded and towed to the police garage. Sometime later that afternoon, the police received information ² that the arrest

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had interrupted the defendants in their preparation for a bank robbery, which was to occur later in the afternoon, and that the notebooks and papers were diagrams, maps and plans for the robbery. Two police officers secured Bazinet's consent to again search the VW. It is undisputed that Bazinet was not told, at any time, that he had a right to refuse consent.

The notebooks and papers were seized from the impounded van without a warrant ³ and were introduced at trial against both defendants, over their objections that these items were the fruits of an illegal search and seizure.

At trial, the government's evidence tended to show that a scheme was devised whereby a teller at a bank, Susan Westman, agreed to participate in a robbery of the bank. The robbery was apparently for the purpose of getting funds to support the activities of a politically radical "urban guerilla" group. The robbery was to be accomplished by Shosie, who would drive to the bank's auto teller window and demand that Westman give her money. Shosie would display a mock-up explosive device and give Westman a note stating that the device would be exploded if she did not cooperate. These precautions were taken in order to prevent suspicion from focusing on Westman. The plan was advanced primarily by George Knox, and it was he who was the most active member of the conspiracy. In addition to Westman and Shosie, two young men were approached by Knox about contributing to the conspiracy by stealing a car for Shosie to use in the robbery, and by undertaking an unspecified task. There was testimony from one of these young men that Bazinet had been along and had also urged him to steal the car.

Further facts, as required, will be developed in our discussion of each issue raised by the defendants.

I

The defendants contend that the trial court improperly denied their motion to suppress the evidence seized from the van, both at the time of the arrest and later, when it was parked in the police garage.

First, they argue that the evidence found in the paper bag was seized incident to an illegal arrest. They contend that the arrests were illegal because the police made no attempt to secure warrants even though they had ample opportunity to do so. They assert that this objection is good whether or not the police had probable cause to make the arrests.

The legality of an arrest is to be determined according to state law, consistent with constitutional requirements. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, (1948). Under Minnesota law, a warrantless arrest is authorized if there is probable cause to believe that a crime has been committed and that the person arrested has committed it. Minn.Stat. § 629.34(3). Since a warrantless arrest is authorized, we must decide whether or

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not the Minnesota standard violates the Constitution.

The defendants rely upon Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), for the proposition that warrantless arrests violate the Fourth Amendment in the absence of any exigency excusing the police from securing a warrant. We do not agree that Coolidge supports this view. In Coolidge, the Supreme Court dealt with a warrantless entry into a person's dwelling place for purposes of making an arrest. A distinction has traditionally been drawn between warrantless arrests, searches, and seizures occurring within an individual's dwelling place, and those occurring in a public place. See, Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965). While this distinction was recently challenged in argument before the Supreme Court, 10 Cr.L. 4136 (1972), the law of this Circuit continues to be that

"* * * [an] arrest in a public place based on probable cause and [a] subsequent search [incident thereto is] not an unreasonable search and seizure in violation of the * * * Fourth Amendment * * *. An arrest warrant is not required even though there may be time to obtain one when the ensuing arrest is based upon probable cause. The test is one of probable cause for the arrest. * * *"

Lee v. United States, 363 F.2d 469, 473 (8th Cir.), cert. denied, 385 U.S. 947, 87 S.Ct. 323, 17 L.Ed.2d 227 (1966). See, United States of America v. Wixom et al., 460 F.2d 206 (8th Cir., 1972); Ford v. United States, supra. Coolidge does not change this rule.

The defendants next contend that the police did not have probable cause to arrest. The trial court ruled that there was probable cause to arrest both Bazinet and Knox, and we give great weight to that determination. We agree that the police had probable cause to arrest Knox, but we do not agree that they had probable cause to arrest Bazinet.

At the time he gave the order for Knox's arrest, Officer Graff had the following information:

(1) the old Federal Building in Minneapolis had been dynamited and two young men with long hair, but otherwise average in appearance, were suspects;

(2) the Sheriff of Jackson County, Wisconsin, had advised Minneapolis police by letter that a young man had been in the Black River Falls, Wisconsin, area attempting to buy dynamite;

(3) a gas station attendant and a person who had been approached to sell dynamite identified photographs of George Knox as the young man who had attempted to buy dynamite;

(4) the young man had left a phone number to be called by prospective sellers of dynamite, and the phone number was listed to George Knox's father;

(5) the young man had been driving a Cadillac automobile which, according to state motor vehicle department records, was the car used by George Knox;

(6) dynamite had been stolen from Jackson County, Wisconsin, at approximately the time the individual identified as Knox had attempted to buy dynamite there;

(7) approximately five hundred pounds of dynamite had been recovered from the trunk of the Cadillac automobile used by Knox as it was parked on a South Minneapolis street.

Knox contends that probable cause for his arrest was lacking because the identity and reliability of the informants were not established. We disagree with Knox, and hold that there was probable cause for his arrest.

This case is similar to United States v. Wahlquist, 438 F.2d 219 (8th Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2195, 29 L.Ed.2d 432 (1971), in which this Court stated:

"* * * the interlocking nature of the specific and detailed information

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discovered during the investigation, which was either verified by personal observation or corroborated by duplicate information from an independent source, buttressed the reliability of each informant so as to give the arresting officers reasonable cause to believe that appellant was involved in the bank robbery. * * *"

438 F.2d at 222.

See, United States v. Morris, 445 F.2d 1233 (8th Cir.), cert. denied, 404 U.S. 957, 92...