472 F.2d 780 (8th Cir. 1973), 72-1280, United States v. Owens

Docket Nº:72-1280.
Citation:472 F.2d 780
Party Name:UNITED STATES of America, Appellee, v. William OWENS, Appellant.
Case Date:January 29, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 780

472 F.2d 780 (8th Cir. 1973)

UNITED STATES of America, Appellee,

v.

William OWENS, Appellant.

No. 72-1280.

United States Court of Appeals, Eighth Circuit.

January 29, 1973

Submitted Nov. 16, 1972.

Rehearing and Rehearing En Banc Denied Feb. 26, 1973.

Page 781

Gary A. Eberhardt, St. Louis, Mo., for appellant.

David W. Harlan, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Page 782

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and DURFEE, Senior Judge of the United States Court of Claims. [*]

DURFEE, Senior Judge of the United States Court of Claims.

This is an appeal by defendant, William Owens, from a final judgment of conviction in the United States District Court for the Eastern District of Missouri, Eastern Division, entered upon a jury verdict. The information charged unlawful possession of a United States Treasury check in the sum of $116.90, in violation of 18 U.S.C. § 1708 entitled, "Theft or receipt of stolen mail matter generally."

Prior to the jury trial, defendant filed two successive motions to suppress as evidence the stolen Treasury checks which the police had taken from defendant. Defendant alleged that this "seizure" was in contravention of his right to freedom from unreasonable searches and seizure, under the Fourth Amendment.

A hearing was held on defendant's first motion to suppress evidence, at which three police officers and defendant testified. The evidence was summarized by the trial court in a memorandum in which the trial court stated that the initial issue was the credibility of the witnesses. Because of the importance of this issue and the facts involved, the trial court's two memoranda of the evidence and its findings are included herein, as follows:

The testimony of the three police officers was consistent and can be summarized as follows. On November 3, 1971, at approximately 11:30 A.M., Detective Loehr and Officers Karpal and Zink were dressed in civilian clothes and cruising in an unmarked police car in the vicinity of Clara and Waterman Streets. The police officers observed an automobile in front of them (both vehicles were moving) and the defendant, who was seated on the front passenger seat, kept looking back at the police car. The police officers knew and recognized the defendant as a police character and believed the defendant recognized them as police officers. The two vehicles stopped at stop signs one block apart. The police officers turned at the stop sign onto Waterman Street and drove very slowly on Waterman to observe a house at 5510 Waterman which was known by the police officers to be a place where there was traffic in narcotics.

As they approached 5510 Waterman, they observed the automobile in which defendant was a passenger approaching from the opposite direction. That automobile parked at the curb across the street from 5510 Waterman; defendant alighted and walked across the street toward 5510 Waterman. At that time the unmarked police car stopped in the driving lane (not at the curb) in front of 5510 Waterman and defendant walked in front of the police car onto the sidewalk.

The defendant recognized Detective Loehr and quickened his pace. As defendant reached the sidewalk, with his back toward the police officers, at a distance of fifteen feet from them, he removed two brown envelopes from his left coat pocket and raised them to his front chest area where they were out of the police officer's view.

The officers testified that they observed that the envelopes were the same size and type used by the government to mail checks; and they observed a window in one envelope with a blue field showing through, which is similar to Treasury checks.

Two of the officers alighted and said, "Hold it, Owens, police officers." Defendant stopped. Detective Loehr said, "Whose checks are those?" Defendant took the envelopes out of his right inside coat pocket and handed them to Officer Karpal, and told the

Page 783

officers they were his mother's and his brother's. The names on the checks were Elnora Bass and Thelma Bass. Detective Loehr asked defendant to identify his "mother's" address. Defendant gave an address different from that on either check. At that time the police officers told Owens he was under arrest.

The defendant testified that he recognized the unmarked police car and Detective Loehr. He further testified that as he walked toward 5510 Waterman the police officers yelled, "Hold it, Owens," and knowing them to be policemen, he stopped. Defendant testified that at that point he did not feel he was free to go. Detective Loehr and Officer Karpal approached him and Officer Karpal reached to defendant's inside coat pocket and took the checks from him. Subsequently, Detective Loehr searched his other pockets.

There is no dispute that the police officers had no arrest warrant. The government has conceded that if defendant's testimony is believed, the search and seizure of defendant were unconstitutional.

The trial court resolved the issue of credibility of the witnesses against defendant, as follows:

* * * Defendant's demeanor and his response to questions indicated that defendant generally had vague, if any, recollections about the events leading to his arrest. In addition, defendant failed to call Lorenzo Perry as a witness. Defendant testified that Perry was within four feet of him throughout the alleged illegal search. Any testimony to corroborate defendant's testimony would have greatly aided the Court in this matter. The police officers testified that Perry was across the street at the parked car during the questioning. The unexplained failure of Perry to testify supports the inference that he was not where defendant said he was and/or he cannot substantiate defendant's testimony.

Following a denial of defendant's motion to suppress evidence, defendant was granted leave to produce supplemental evidence, which was summarized by the trial court as follows:

Mrs. Dorothy Owens, wife of the defendant, testified that on November 3, 1971, she was living separate and apart from her husband, and resided with her five year old daughter at 5554 Waterman. She testified that at the time of the events in question she observed the defendant from the window of her apartment located on the second floor, front side of the building at 5554 Waterman. She observed the defendant as he was knocking at the door, calling her name. The door to the building is recessed and is kept locked for security purposes. Defendant did not have a key. She stated that she observed three policemen in plain clothes around her husband and an unmarked police car parked at the curb in front of the building, and that there were more policemen there. Mrs. Owens testified that there was a "commotion" going on. Mrs. Owens further testified that she saw Mr. Lorenzo Perry across the street at his car which was parked there. Mrs. Owens stated that she did not see defendant before he reached the door and that she observed the scene approximately two minutes.

Mr. Lorenzo Perry testified that on November 3, 1971, he was with the defendant; that he drove the defendant to 5554 Waterman where Mrs. Owens lives; that he and defendant got out of the car and walked...

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