United States v. Dunavan

• Decision Date: 21 July 1972
• Docket Number: 1379.,No. 71-1378,71-1378
• Citation: 464 F.2d 1166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Orville DUNAVAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Edward MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

464 F.2d 1166 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Orville DUNAVAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Edward MITCHELL, Defendant-Appellant.

Nos. 71-1378, 1379.

United States Court of Appeals, Sixth Circuit.

July 21, 1972.

Dale Quillen, Nashville, Tenn., for appellants.

Ira E. Parker, III, Asst. U. S. Atty. (Charles H. Anderson, U. S. Atty., Nashville, Tenn., on the brief), for appellee.

Before WEICK and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

ORDER

Upon consideration of the important Fourth Amendment issues involved in the above-styled appeal; and

Noting the uncertainty in the record in relation to critical facts referred to below,

The case is remanded to the District Court for such additional hearing and findings as may be required to answer the following question:

Whether the police knew that Dunavan had recovered consciousness and been released from the hospital 1) when they entered his motel room, and 2) when they opened the first brief case?

Entered by order of the Court /s/ JAMES A. HIGGINS Clerk

McALLISTER, Senior Circuit Judge (dissenting).

From the views of my colleagues that the case should be remanded for findings of fact, I cheerfully dissent, being of the opinion that certain evidence upon which the conviction was based should have been suppressed because of an unlawful search and seizure, and that the case should have gone to the jury on the evidence of eye-witness testimony, of films taken by hidden cameras during the reopening of the bank, and on the other evidence offered by the prosecution.

The facts are as follows: Appellants were tried and convicted of robbing, by force and intimidation, a federally-insured bank in Nashville, Tennessee, in violation of Title 18 U.S.C.A., Section 2113(d). They were sentenced to twelve years of imprisonment under the provisions of Title 18 U.S.C.A., Section 4208 (a) (2), under which the Board of Parole may determine eligibility for parole.

They were arrested near Pensacola, Florida, and both asked for a preliminary hearing before Honorable James M. Crossgrove, United States Commissioner. After the hearing, the Commissioner recommended that a warrant be issued for their removal to the United States District Court for the Middle District of Tennessee, in which Nashville is located, where the robbery of the federally-insured bank took place.

On the trial of the case in the District Court in Nashville, appellants filed a motion to suppress the evidence on the ground that such evidence, on which the Government relied to prove the bank robbery in question, was secured by an unlawful search and seizure, without a warrant, on the part of the state officers of Florida, and the agents of the Federal Bureau of Investigation, in violation of appellants' rights under the Fourth Amendment to the Constitution.

The man, whose premises were searched and whose briefcases were also unlocked and searched, and the evidence therein used on the trial of the case to convict appellants, was found unconscious by the roadside near Pensacola. The first officer on the scene stated he thought the man might be a diabetic because of a small emblem he wore suspended from a chain around his neck; and that a number of persons who were there and saw the man in that condition thought he might be a diabetic. The emblem worn by the man is well-known to emergency departments of hospitals, and by officers of police departments; and when they see such an emblem, they immediately identify the wearer as a diabetic. These emblems may be purchased at almost any drug store throughout the country. The only reasonable conclusion to be drawn when a man is found suffering a seizure, and is wearing a diabetic emblem around his neck would be that he is a diabetic suffering from a diabetic seizure.¹

The transcript of the evidence and testimony of the witnesses before the Commissioner in Pensacola was introduced in evidence on the hearing in the District Court in Nashville. After due consideration, and upon reviewing the transcript of the evidence taken before the Commissioner, the District Court denied appellants' motion to suppress the evidence on the ground that it was not well taken. The trial then proceeded and resulted in the conviction and sentence of appellants.

The evidence sought to be suppressed consisted of thousands of dollars in bills found in locked attaché cases, which were found in appellant Dunavan's immediate possession. These bills had been taken in a hold-up of a national bank in Nashville, Tennessee.

The evidence of money found in the attache cases was only part of the evidence used to convict. There was testimony from a number of eye witnesses that appellants were the men who held up the Nashville bank, and there were films taken, by hidden cameras, during the hold-up that purported to show appellants were the hold-up men. Accordingly, the evidence sought to be suppressed was only part of the evidence against appellants; and it is only the search of the premises of appellants and of their attaché cases upon which the motion to suppress is based.

The Government contends that the search came within one of the exceptions to the Fourth Amendment since it was made by officers confronted with an emergency in an effort to save the life of one of the appellants; that the search was carried out in an attempt to locate information as to the nature of his illness, and of his identity; and that the exigencies of the situation made that course imperative.

Appellants contend that the search of their rooms did not fall within one of the exceptions to the Fourth Amendment, requiring a search warrant; that when the officer who arrived at the scene and found that the man, who is one of the appellants, was unconscious and was wearing a chain around his neck with an emblem such as diabetics wear, he had every reason to know that the man was suffering a diabetic coma or seizure; that the hospital to which the man was transported, saw the man and found the chain around his neck holding the diabetic emblem, knew he was in a diabetic coma; and that there was no need of a search of appellants' premises and a search of his locked dispatch cases to secure information in order to telephone the hospital and inform those in charge that the man was a diabetic.

It further appears from the records kept by the deputy sheriff, who first arrived at the scene where he found appellant in a coma, that appellant had been discharged from the hospital, immediately arrested, and booked for the offense of not having a valid driver's license, before any search of appellants' premises or attaché cases was carried out by the police.

The whole issue in the case is whether the search without a warrant, and seizure of the evidence by the Florida State officers and the agents of the Federal Bureau of Investigation, were in violation of appellants' rights under the Fourth Amendment as constituting an illegal search and seizure, requiring that such evidence be suppressed on motion of appellants.

We are of the opinion that the search and seizure of the evidence used to convict appellants was a search and seizure in violation of appellants' rights under the Fourth Amendment, and that the evidence seized as a result of such search should have been suppressed.

In McDonald v. United States, 335 U.S. 451, 453, 69 S.Ct. 191, 192, 93 L.Ed. 153, the Supreme Court declared:

"The Fourth Amendment to the Constitution provides: `The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\' This guarantee of protection against unreasonable searches and seizures extends to the innocent and guilty alike. * *

"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home."

This strange case starts with the testimony of Sergeant Gearen of the Air Force before Commissioner Crossgrove in Pensacola on the preliminary hearing. Sergeant Gearen was sightseeing with his family along the beach at Pensacola and was driving his car out to Fort Pickett when he saw a car coming toward him "going off and on the road on both sides of the road." Sergeant Gearen had to take the right shoulder to keep from getting hit. The other car went by him on his side of the road, and as he watched it in the rear-view mirror "it kept going in the sand and back on the road." Sergeant Gearen then went on down to the main gate at Fort Pickett and asked the gate guard to call the police. He then got into his car, turned around and followed the other car. When he had gone "up the road a piece," the other car had run off the road into the sand, and stopped while the motor was still running. Sergeant Gearen backed his car off the road and "just sat there awhile. I wanted to go but my wife didn't want me to. It was plain to see something was wrong with the driver. He wasn't acting right. I saw the fire underneath the front of the car. Grass caught on fire. I told her I was going anyway. Got to...