United States v. Cox

Citation464 F.2d 937
Decision Date18 July 1972
Docket NumberNo. 71-1961 to 71-1963.,71-1961 to 71-1963.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerry Bradford COX, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Doss FOREMAN, Jr., Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Maurice ROSE, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Allen D. Tucker, Kalamazoo, Mich. (Court-appointed), on brief for defendant-appellant Cox.

Joseph J. Jerkins, Kalamazoo, Mich. (Court-appointed), on brief for Doss Foreman, Jr.

Edward J. Hackett, Battle Creek, Mich. (Court-appointed), on brief for Maurice Rose.

Robert C. Greene, Asst. U. S. Atty., for plaintiff-appellee; John Milanowski, U. S. Atty., Grand Rapids, Mich., on brief.

Before WEICK and MILLER, Circuit Judges, and RUBIN, District Judge.*

CARL B. RUBIN, District Judge.

The three defendants were arrested following a warrantless search of their automobile and charged with the crime of armed robbery. They filed motions to suppress the seized evidence and after these were overruled by the trial judge, the defendants pled guilty to the charge of possession of stolen property. These pleas were made with reservation of defendants' right to appeal from the trial judge's denial of their motion to suppress. This reservation was consented to by the United States Attorney.

The record establishes the following facts. On the evening of January 8, 1971, the First National Bank & Trust Company located in Battle Creek, Michigan, was robbed of approximately $3,-000.00. A series of police bulletins based on eye witness testimony were broadcast over the police radio. The bulletin established that the robbery had been committed by two negro males, both approximately six feet in height and weighing between 160 and 170 pounds and that they had made their escape in an automobile, possibly a 1966 maroon Toronado. These bulletins were heard by Officers McCandlish and Brant of the Emmett Township Police Department.

Approximately one and one-half hours after the robbery had been committed, the officers observed a late model blue and white Toronado automobile parked in a gas station. The two males standing around the car matched the description the officers had received over the radio broadcast. The gas station in which Officers McCandlish and Brant observed these facts was located approximately seven miles from the scene of the robbery. The automobile containing three men, one of whom had been inside the gas station at the time of the initial police observation, drove out of the station and the officers followed it. The automobile was stopped approximately one and one-half miles from the gas station after its driver had momentarily failed to heed the blinking lights and sirens of the police car. An individual later identified as defendant Foreman got out of the Toronado and Officer McCandlish requested to see his driver's license. The defendant told the officer that he did not have one in his possession but did produce some identification when pressed to do so by McCandlish.

McCandlish then asked Foreman for permission to search the automobile. He explained that a local bank had been robbed and the two men sitting in the back seat of Foreman's car matched the description that had been broadcast over the police radio. At first Foreman refused to give such permission but after conferring with the other two occupants of the car, told McCandlish that it was permissible for him to engage in the requested search. By this time other officers from other police jurisdictions had arrived at the scene. McCandlish and one Officer McWilliams, of the Penfield Police Department searched the car and discovered a bluish-green pillowcase hidden in an armrest in the middle of the front seat and which contained a large sum of money. At this point Foreman and the other two occupants of the car, defendants Cox and Rose, were placed under arrest and advised of their rights.1

There are two issues for resolution before the Court. We must initially consider whether the procedure whereby defendants pled guilty but reserved certain rights for appeal is violative of either public or judicial policy. If we decide that this case is properly before us, we must then determine whether the warrantless search of defendants' automobile violated their Fourth Amendment rights.

I

The Court must first consider, as a threshold question of jurisdiction and as a matter of policy, the procedure by which this case was brought before us. After the district court overruled motions to suppress, defendants entered pleas of guilty to the charge of possession of stolen property. These pleas were made with the express reservation of defendants' rights to perfect an appeal from the question of search and seizure law which had, of course, been decided against them by the trial judge. The United States Attorney for the Western District of Michigan assented to defendants' conditional pleas. At the oral argument in this cause his representative announced that said office intends to employ this procedure in all similar cases. The presumption appears to be that in cases of this type the admission, over objection to suppress or to return, of either physical or confessional evidence is for all intents dispositive of the case as a whole.

The procedure employed in the case at bar is at variance with the general, well-settled rule that a guilty plea "normally rests on the defendant's own admission in open court that he has committed the acts with which he is charged," see McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L. Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). When made by the accused, knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all non-jurisdictional defects. Austin v. Perini 434 F.2d 752 (6th Cir. 1970); Humphries v. Green, 397 F.2d 67 (6th Cir. 1968); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); McCord v. Henderson, 384 F.2d 135 (6th Cir. 1967); Crockett v. Haskins, 372 F.2d 475 (6th Cir. 1966); also see, Jenkins v. Beto, 442 F.2d 655 (5th Cir. 1971); Nobles v. Beto, 439 F.2d 1001 (5th Cir. 1971); United States v. Rook, 424 F.2d 403 (7th Cir. 1970), cert. den. 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. McElya, 142 U.S.App.D.C. 38, 439 F.2d 548 (1970); Abram v. United States, 398 F.2d 350 (3rd Cir. 1968); United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967); Runge v. United States, 427 F.2d 122 (10th Cir. 1970); Seybold v. Cady, 431 F.2d 683 (7th Cir. 1970). The jurisdictional exception to the general rule has been limited to cases in which the accused is challenging the constitutionality of the statute, usually on Fifth Amendment grounds, under which he is charged. See, Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).

In Haynes v. United States, supra, the defendant was charged with violations of the National Firearms Act. He claimed that certain provisions of 26 U.S.C. § 5851 violated his privilege against self-incrimination, as guaranteed by the Fifth Amendment. After his motion to dismiss the charge on this ground was denied by the district court, the accused pled guilty and appealed. The Supreme Court, in reversing an affirmance of conviction by the Fifth Circuit noted that "petitioner's plea of guilty did not, of course, waive his previous claim of the constitutional privilege. See, e. g., United States v. Ury, 106 F.2d 28 (2d Cir. 1939)" 390 U.S. 85, 87, at n. 2, 88 S.Ct. 722, 725.

In Ury, supra, relied on by the Court in Haynes, the defendant was charged with violation of a provision of the Tariff Act of 1930. He demurred on the grounds that the statute was unconstitutional and after the district court overruled the demurrer, pled guilty and thereafter filed a motion in arrest of judgment raising the same points he had raised in his demurrer. The Second Circuit held: "The questions presented put in issue whether the statute is constitutional and whether the information charged a crime. The plea of guilty did not foreclose the appellant from the review he now seeks."

And in United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir. 1971), the appellant challenged the constitutionality of an immigration law, 8 U.S.C. § 1326. Citing footnote 2 in Haynes, supra, the Fifth Circuit held: "The Supreme Court has declared, however, that where defendant moves to dismiss an indictment on the ground that the statute he is charged with having violated is unconstitutional, and the trial judge denies the motion to dismiss, the defendant may plead guilty and yet preserve the constitutional issue for appeal." See, accord, Corwin v. United States, 423 F.2d 33 (9th Cir. 1970), cert. den. 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970); Burton v. United States, 414 F.2d 261, 262 (5th Cir. 1969); Askew v. State of Alabama, 398 F.2d 825 (5th Cir. 1968).

These general rules are well summarized in 1 Wright, Federal Practice and Procedure: Criminal § 175b, as follows:

The entry of a plea of guilty has the effect of admitting all material facts alleged in the charge. No further proof of the crime is required . . . The plea is not merely evidence for the government. It is a formal criminal pleading, waiving a trial and a defense, and leaving the court nothing to do but to impose sentence and enter judgment.
A defendant who has pleaded guilty is not barred from claiming that the indictment or information failed to state an offense, or that the statute under which he was charged is unconstitutional, or that the pleading showed on its face that the prosecution was barred by the statute of limitations. The plea of guilty does waive, however, all nonjurisdictional defects in the proceeding. In particular, it bars any claim that the prosecution obtained evidence
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