United States v. Shye

• Decision Date: 23 January 1973
• Docket Number: No. 72-1611.,72-1611.
• Citation: 473 F.2d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Reginald Jerome SHYE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

473 F.2d 1061 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Reginald Jerome SHYE et al., Defendants-Appellees.

No. 72-1611.

United States Court of Appeals, Sixth Circuit.

January 23, 1973.

Joe B. Brown, Asst. U. S. Atty., for plaintiff-appellant; Charles H. Anderson, U. S. Atty., Nashville, Tenn., on brief.

Robert S. Brandt (Court Appointed), Nashville, Tenn., for Reginald Jerome Shye.

Wm. Buford Bates (Court Appointed), Nashville, Tenn., for James Edward Cox.

Carlton H. Petway (Court Appointed), Nashville, Tenn., for James Clarence Floyd, Jr.

Clark H. Tidwell (Court Appointed), Nashville, Tenn., for James Alfred Stevenson.

Before EDWARDS and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.

McCREE, Circuit Judge.

The Government appeals, pursuant to 18 U.S.C. § 3731, from the granting, in part, of defendants' pretrial motion to suppress evidence seized by law enforcement officers in the course of defendants' apprehension.

The hearing on the motion established the following facts. On January 18, 1972, a branch of the Nashville City Bank and Trust Company was robbed shortly after noon. Bank employees described the robbers as four Negro males, one short, one tall, and two about six feet in height. Some of the robbers wore leather-like long coats, one of which was lavender; the short robber wore a ski mask; and three wore hats, one of fur and another with a wide brim. The short man had a sawed-off shotgun and two others had pistols. They used a white sack to carry off the money (about $10,549), and Mr. Angel, a bank employee, observed them driving away in a 1968 or 1969 two-toned, fastback Ford Fairlane.

On January 17, the day before the robbery, Nashville police officer Luther Summers had observed defendant Cox working on a Ford Fairlane similar to the one described above. Officer Summers had gone to Cox's apartment to question him about another armed robbery, but instead of confronting Cox he apparently stayed in his car and watched the suspect go back and forth between the Ford and an apartment nearby. Officer Summers recorded the license number of the car and then departed.

When notice of the bank robbery was broadcast over the police radio on January 18, officer Summers went to the scene with other law enforcement agents. Upon questioning bank employees and receiving the description of the get-away car, he thought of the car on which he had seen Cox working the day before. He ascertained from officers in a patrol car in Cox's neighborhood that the Fairlane was parked near Cox's apartment, and in the company of FBI agents and other police officers he then proceeded to the parking lot in back of Cox's apartment where the Fairlane was parked.

FBI agent Darrell Hamar testified that the car was parked about 30 to 50 yards from the apartment which Cox had been observed entering the day before. Hamar, who was the agent in charge of the investigation, ordered by radio a check of the license plate of the Fairlane, and while that was being made, he looked into the car and saw in plain view a white sack and a hip-length wool coat on the seat. He then felt the car radiator, which by its warm temperature indicated that the car had recently been driven. The bank employee who had described the get-away car was brought to the scene, where he identified the Fairlane as the car he had seen leaving the bank. At about the same time, the license plate check revealed that the plates on the Ford were registered to a Chevrolet. Agent Hamar then ordered a general search of the car, which resulted in the discovery and seizure of a sawed-off shotgun under one of the seats. The white sack and the coat were also seized.

While the automobile was being investigated, a number of officers went to Cox's apartment after having been informed by officer Summers that he had previously seen someone from that apartment driving the Fairlane. The officers knocked on the door and received no response. They attempted to secure a key with which to open the door, but they could not find a key that would work. There is some indication that they discovered that one of the apartment occupants would soon be home, but in any event they staked out the apartment, placing officers at both the front and rear entrances, until about one hour had elapsed from the time of their initial attempt to gain entry. At that point, someone from inside the apartment said, "We're coming out," and the front door of the apartment began to open. The door then stopped, and through the opening one officer saw several Negro males inside. A voice allegedly said from the apartment, "Come on in," and the officers, armed with shotguns, burst into the apartment, notified the four male occupants that they were under arrest, and immediately placed the occupants against the living room wall, face first, with their hands on the wall and their feet back away from the wall, so that they could be searched for weapons and placed under control. While six or seven armed officers were accomplishing this, other officers fanned out through the rest of the apartment to determine whether there were any other occupants. The officers remained in the apartment for an unspecified time, and they conducted a general search of the premises, which resulted in the seizure of four sacks of money and money from other sources for a total of $10,541, three pistols, six bullets, three coats, two of which were leather, a fur cap, a ski mask, and two brown hats.

The apartment occupants were each charged with two counts of armed bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a) and (d). All defendants moved to suppress all items seized from both the automobile and the apartment. Following a hearing, the District Court granted the motion with respect to the items taken from the automobile on the ground that there were no exigent circumstances excusing the failure of the law enforcement agents to obtain a search warrant. With respect to the items seized from the apartment, the Government conceded the inadmissibility of three sacks of money and a pistol, found under the living room couch, on top of a water heater in the hall, in a wastebasket in a bedroom, and in a hall linen closet, respectively. The District Court upheld the seizure of six bullets from the pocket of one of the defendants and the plain-view seizure of a leather jacket, ski mask, pistol, and fur cap from the living room. The court also upheld the seizure of certain items from a bedroom, including two brown hats, a coat with a pistol in the pocket, a card case containing $1,100, and a leather coat, on the ground that these items were in plain view of officers lawfully searching for additional suspects.

However, the court ordered two items suppressed. The first was money concealed in a paper bag on a shelf in a bedroom closet; the Government has not appealed the determination that the seizure of this item was unlawful. The second was a sack of money that was found between a water heater and an adjoining wall, about four feet to the right of the suspect against the living room wall who was closest to the water heater. Between the suspect and the water heater was a hallway, and the water heater was apparently in a closet-type depression in the wall. The court held that the sack of money was not within the immediate control of the defendants even though it

was only a few feet away from one of the defendants at the time it was seized. However, at the time it was actually seized, the officers had the situation completely under control, and the aforesaid defendant was positioned against the wall being searched, surrounded by a number of gun-wielding officers. The bag was merely one of items in the closet, and a police officer was positioned between the closet and the nearest defendant. Under these circumstances, the Court is of the opinion that seizure of the bag cannot be justified as the fruit of a search of the area within an arrestee\'s immediate control.

Order of the District Court at 4 n. 5. The Government has appealed the suppression of this sack of money.

Assuming arguendo that all four defendants have standing to object to the search of the automobile, which was owned by defendant Floyd, we conclude that the law enforcement agents had probable cause to search the car and that exigent circumstances justified the failure of the agents to seek a warrant prior to the search. The agents clearly had probable cause to believe that the car had been used in the commission of a felony and that the car contained instrumentalities, fruits, or evidence of the felony: they observed a white sack similar to the one used by the bank robbers to carry off the money, the radiator was warm, the license plates were registered to a different car, and a bank employee identified the car, which was apparently quite distinctive, as the car he saw being driven away from the bank. We have no difficulty in concluding that "the facts and circumstances within the agents' knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that instrumentalities or fruits of the robbery were . . . in the automobile which they . . . searched," Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), and that the agents had probable "cause to believe that the evidence sought by the search of the car would aid in the apprehension or conviction" of the bank robbers. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967).

Indeed, appellees do not seriously dispute this point. They assert, however, that the exigent circumstances necessary to justify a warrantless search of the automobile, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, supra, have not been shown to have existed in this...