United States v. Owens, 72-1280.

Citation472 F.2d 780
Decision Date29 January 1973
Docket NumberNo. 72-1280.,72-1280.
PartiesUNITED STATES of America, Appellee, v. William OWENS, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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

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

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

Rehearing and Rehearing En Banc Denied February 26, 1973.

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 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 across the street together; that as they approached the door of 5554 Waterman, the police yelled, "Halt" or "Stop." Perry testified that he and the defendant were then at the door of 5554 Waterman and the policemen were then on the sidewalk approximately 20 to 30 feet from them. Perry stated that he and the defendant turned around and three, white, policemen identified themselves; and two of them approached defendant and one of them approached him. Perry stated that a policeman asked them a question to the effect of "Do you have anything on you?" The police officers then searched Perry and the defendant. Perry testified that he was standing four to five feet from the defendant the entire time, and that at no time did defendant hand anything to the police. Perry testified that the police removed the envelopes from defendant\'s coat pocket during their search of him.
Perry\'s testimony that he was four to five feet from the defendant during the "search" is at odds with Mrs. Owens\' testimony that she observed him across the street while the three policemen were with Owens. The police officers also testified that Perry was across the street the whole time. While the defendant testified that Perry was near him during the search, their testimony is otherwise inconsistent. Perry said the officers identified themselves, the defendant said they did not. Perry said the police asked if they had anything on them; and defendant said they asked where he got the checks. Perry said they were at the door of 5554 Waterman when the police halted them; the defendant said they were approaching the apartment when stopped. As a whole Perry\'s testimony is incredible.
Mrs. Owens\' testimony adds nothing as far as the alleged search is concerned. She did not observe any search or hear anything concerned therewith. The value of her testimony is that she has given a reason for defendant to be in that location at that time, that time, that is, that defendant was to visit her at 5554 Waterman. The Court finds the value of that testimony to be greatly diminished inasmuch as defendant did not corroborate any part of it when he was testifying. At no time did defendant state why he was in the middle of the 5500 block of Waterman. And yet he testified after the police had testified that they were suspicious because defendant was approaching an address (5510 Waterman) known to be involved in narcotics traffic. In fact, at the original hearing (p. 85 of the transcript), the Court asked the defendant the following question:
"Mr. Owens, as I understand your testimony, you got out of your car; walked up towards 5510; and somebody hollered, `Hold it.\'?"
In response, the defendant said, "Yes."
The Court concludes that the
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