United States v. Pollard

• Decision Date: 28 August 1972
• Docket Number: No. 71-1754 to 71-1758.,71-1754 to 71-1758.
• Citation: 466 F.2d 1
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billie Shups POLLARD et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

466 F.2d 1 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Billie Shups POLLARD et al., Defendants-Appellants.

Nos. 71-1754 to 71-1758.

United States Court of Appeals, Tenth Circuit.

August 28, 1972.

E. Edward Johnson, Asst. U.S. Atty. (Robert J. Roth, U.S. Atty., on the brief), for plaintiff-appellee.

Robert M. Brown, Topeka, Kan., for defendants-appellants.

Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Billie Shups Pollard, Thomas Wooldridge, Jewell Pickett, George Spears, and Sandy Pettyjohn were arrested on December 12, 1968, in connection with the attempted burglary of the Silver Lake State Bank of Silver Lake, Kansas. Silver Lake is located some ten miles west of Topeka, Kansas, and has a population of 392.

On April 2, 1969, the five were charged by indictment with conspiring to burglarize the Silver Lake State Bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in a second count they were charged with an unlawful attempt to enter that bank. 18 U.S.C. § 371, 18 U.S.C. § 2113(a), 18 U.S.C. § 2. Upon trial some two years later all five were convicted on both counts, and each now appeals.

In our view, the central issue is whether the search of Pollard's 1969 Buick and the seizure therefrom of certain burglary tools was lawful. We conclude that it was. To give meaning to this conclusion, the facts must be developed in some detail.

F.B.I. agents, for reasons which they deemed good and sufficient, set up a surveillance of Pollard in Indianapolis, Indiana, on December 5, 1968, and daily thereafter followed his movements in that city up to December 10, 1968. There was testimony that Pollard was observed making contact with George Spears, one of the defendants. Additionally, at one point during the surveillance, Pollard was observed to have in his possession certain burglary tools, namely, five pieces of pipe approximately five feet long which were said to resemble "burning bars." An F.B.I. agent described a "burning bar" and its operation as follows:

"This piece of pipe in turn is threaded on one end, or it could be on both ends, but just for sake of description it is threaded on one end. This thread is connected to a hose. The hose—rubber hose is directly connected to an oxygen tank. The only source of supply to a burning bar then is just plain oxygen. The bar has to be ignited by an acetylene type torch. It requires a high temperature of heat to ignite this burning bar. Once the burning bar catches fire at the end, the heat of the burning bar is controlled by the amount of pressure—of oxygen pressure going through the line. The pipe burns itself up as it is destroying everything that it comes in contact with. There isn\'t—I have been on demonstrations and given talks with the head metallurgist and engineers from Wright Patterson Air Force Base in Ohio bring in these exotic metals, titanium, titinium alloys and some of supposed to be the strongest metals known to man now, you know, artificial type metals. But, it could cut through that. It would take maybe a split second longer than would be a normal piece of metal. There isn\'t anything it won\'t burn through. The temperature is in excess of 10,000 degrees."

On December 10, 1968, Pollard left Indianapolis, Indiana, in a 1969 Buick, with the F.B.I. thereafter continuing their surveillance of Pollard across the states of Illinois and Missouri on into Topeka, Kansas, where Pollard checked into the Holiday Inn North in the early morning hours of December 11, 1968. Thereafter, on the same day, Wooldridge and Pickett, driving a 1965 Oldsmobile bearing Kentucky license plates, checked into another room of the Holiday Inn North, having driven to Topeka from Kentucky. Later that same day, Spears and Pettyjohn, who had traveled from Indianapolis to Topeka, were observed at the Inn, parking their 1965 Plymouth in front of Pollard's room.

F.B.I. agents testified in minute detail as to the activities of each of the five during the afternoon and evening of December 11, 1968, and the early morning hours of December 12, 1968. For example, it was established that at about 4:00 P.M. on December 11, Pollard and Wooldridge in the 1969 Buick drove to the town of Silver Lake, Kansas, and the net effect of this particular testimony was that the two were "casing" the Silver Lake State Bank. Additionally, at about 9:00 P.M. on December 11, Pollard, Wooldridge and Spears were observed to drive in the 1965 Plymouth to the vicinity of the Knoll Welding Supply Company in Topeka, where they circled the plant several times at slow speed and then stopped for a short period of time. In this connection, the proprietor of that company testified that on the night in question a 122-cubic foot oxygen cylinder disappeared.

Shortly after midnight on December 12, the five drove from the Inn in the 1965 Oldsmobile into Silver Lake near the general vicinity of the Silver Lake State Bank. Just prior to leaving, Pollard was seen to be carrying a bag in each hand, one being a long slender bag, "similar to the type that you might carry a rifle in * * * long and slender." The Oldsmobile sometime later returned to the Inn but with only two occupants. Shortly thereafter these two persons, identified as "two females," entered the Plymouth and headed back towards Silver Lake.

Sometime before 3:00 A.M. on December 12, 1968, an attempt was made to enter the Silver Lake State Bank by the back door, the screen having been cut and the door itself bearing evidence that a forceful entry had been attempted. Several F.B.I. agents were at the time in the immediate vicinity of the bank. One agent testified that he literally ran into Pollard trotting along some railroad tracks near the bank, this agent identifying Pollard and testifying that at the time Pollard was carrying a walkie-talkie radio. This same agent also testified that he then climbed on top of a boxcar and while observing from that vantage point saw two persons, other than Pollard, talking and looking in the direction of the bank. Another agent testified that he saw an unidentified figure coming from the rear of the bank carrying a bag with a handle on it, the bag being about three feet long.

Shortly before 4:00 A.M. on December 12, 1968, all five appellants returned to the Inn in the 1965 Plymouth. Spears and Pettyjohn very shortly thereafter left the Inn and were arrested a short distance away. Moments later, Wooldridge and Pickett were arrested in their room in the Inn and Pollard was then arrested in his room. After being advised of his constitutional rights, Pollard declined to talk. Thereupon, the agents proceeded to first search his room and thereafter his 1969 Buick parked immediately outside his motel room. In the trunk of the Buick the agents found and seized, among other things, the following items: A canvas zippered bag; work-type gloves; welder's mask; three ski masks; 100 feet of plastic garden-type hose; two pair of black leather gloves; pry bar; hatchet; Allen wrench; dust respirators; hammers; crescent wrenches; screwdriver; vice grips; two acetylene tanks; oxygen tank; air gauges with hose attached; five burning bars; flashlight; two two-way radios; pipe wrenches; cutting tips for a torch; and one cutting torch.

Before considering the validity of the search of Pollard's Buick, brief reference will first be made to certain related matters. One ground urged for reversal is the alleged insufficiency of the evidence. It is said that the evidence presented by the Government, at the best, creates only a suspicion that the defendants conspired to commit a bank burglary and thereafter attempted to do so, and falls short of proof beyond a reasonable doubt. We disagree.

By our summary of the...