United States v. Jones

• Citation: 475 F.2d 723
• Decision Date: 12 April 1973
• Docket Number: No. 72-2261.,72-2261.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Nelson JONES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

475 F.2d 723 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Nelson JONES, Defendant-Appellant.

No. 72-2261.

United States Court of Appeals, Fifth Circuit.

March 20, 1973.

Rehearing Denied April 12, 1973.

Robert Glass, New Orleans, La., (court appointed) for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Harry R. Hull, Jr., Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before MORGAN, CLARK and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Lloyd Nelson Jones appeals from his conviction by a jury of robbing a federally insured bank. 18 U.S.C. § 2113. We affirm.

On January 9, 1970, the National American Bank in New Orleans was robbed by three men. After two of the alleged robbers had been arrested and were in custody, FBI agents investigating the case concluded that Lloyd Nelson Jones was the third member of the robbery team. A warrant for his arrest was accordingly obtained by the FBI office in New Orleans. Jones was subsequently traced to Cleveland, Ohio. The agents in New Orleans then notified the FBI office in Cleveland that Jones was probably at his wife's residence in Cleveland.

Agent Thomas H. Kirk appeared before a United States Magistrate in Cleveland on January 19, 1970, and on the basis of his affidavit was issued a warrant authorizing the search of the residence in which Jones was supposedly located. The following morning at 8 A.M. approximately ten FBI agents went to 11506 Whitmore Street in Cleveland to search the residence and to arrest Jones if he were there. Mrs. Jones answered the agents' knock at the door and was told that they had a search warrant authorizing a search of her home and were going to arrest Jones. She replied that her husband was not there. The agents entered the apartment, and while Agent Kirk talked with Mrs. Jones the other agents looked for the defendant and found him asleep in a back bedroom. The agents recovered a pistol from beneath his pillow, told him he was under arrest for the New Orleans bank robbery, gave him Miranda warnings, and placed him in handcuffs. By the time Agent Kirk reached the bedroom, Jones had already been given his warnings, was under arrest and in handcuffs. Agent Don Gordon then asked Jones where the money was, and Jones answered that it was in the suitcase, indicating a suitcase located about a foot and onehalf away from the head of the bed.

When the agents opened the suitcase, they found $1,190 in a cigarette carton. The serial numbers of three $20 bills matched those of the stolen money. A used airline ticket bearing the name of I. Levy and showing that it was purchased in Houston for a flight to Cleveland was also found in the suitcase. At the trial the money recovered from the suitcase, including the marked $20 bills and the airline ticket, were admitted into evidence over defendant's objections. Jones's signed confession, as well as diagrams of the robbery and several oral statements not reduced to writing, were also admitted.

As usual, the issues on appeal turn on the legality of the search and seizure of the physical evidence and on the admissibility of defendant's statements, which allegedly flowed from the illegal search. Jones contends: (1) that the search warrant was invalid; (2) that the search of the suitcase was not incident to his arrest; (3) that he did not consent to the search; and (4) that his statements were fruits of the illegal search and thus inadmissible.

I.

We turn first to the validity of the search warrant, because if it is good then we do not need to consider defendant's other allegations of error.

The warrant was issued on the basis of an affidavit prepared by Thomas H. Kirk, an FBI agent in Cleveland. The entirety of Kirk's affidavit is as follows:

BEFORE CLIFFORD E. BRUCE, 223 U.S. Court House, Cleveland, O. The undersigned being duly sworn deposes and says:

That he has reason to believe that on the premises known as 11506 Whitmore, Cleveland, Ohio, a second and third floor apartment in a white 3 story frame 2 family dwelling located on the south side of the street in the northern District of Ohio there is now being concealed certain property, namely U.S. currency, weapons, or other fruits and instrumentalities which are in violation of T. 18, Sec. 2113(a)(d).

And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: that on 1/9/70 Lloyd Nelson Jones accompanied by Calvin E. Williams and Pleasant Jones, Jr., robbed the National American Bank, Park-chester Branch, 4764 Paris Avenue, New Orleans, Louisiana. All subjects were subsequently identified by bank employees and Calvin E. Williams & Pleasant Jones Jr. were arrested and some bank loot money was recovered. Investigation by FBI, New Orleans, Louisiana, indicates Lloyd Nelson Jones fled to Louisiana to visit his wife, Alice Jones McDade and 3 children who reside at 11506 Whitmore, Cleveland, Ohio.

Thomas H. Kirk Signature of Affiant, S/A FBI Official Title, if any.

On its face this affidavit appears to support the issuance of the warrant. The problem is that testimony developed at the suppression hearing conclusively established that Lloyd Nelson Jones was not identified by bank employees as the affidavit states.¹ On the contrary, no one at the bank was able to identify defendant Jones as one of the robbers immediately after the robbery.

The government's brief is devoted almost exclusively to arguments in support of the warrant. It is unnecessary for us to comment on them because of this court's holding in United States v. Upshaw, 448 F.2d 1218 (5th Cir., 1971). Faced with the question of the validity of a search warrant procured under circumstances almost identical to those present in the instant case, the court held the warrant invalid. Judge Godbold's opinion in Upshaw more than adequately disposed of the validity issue, and it is therefore appropriate to quote at length from his opinion.

"Purged of its erroneous statements, the affidavit was wholly lacking in facts tending to show that Davis was printing checks or identification documents or that any of the documents were on the premises of the print shop. Stripped of its incorrect assertions, the affidavit became like that in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), consisting of nothing more than the bare statement of affiant\'s belief and cause to suspect that items were in a specified location. Mere affirmance of belief or suspicion is not enough. Id. at 47, 54 S.Ct. at 13, 78 L.Ed. at 162. See also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

"It is not necessary in this case for us to reach the question of whether a defendant is entitled to a hearing to test the underlying factual validity of the affidavit on the basis of which a warrant has been issued (as opposed to the affidavit\'s sufficiency if taken as true). And, it is equally unnecessary to decide what preliminary requirements, if any, a defendant must meet after he requests a hearing in order to demonstrate that there is an authentic issue of fact which will justify such a hearing. These questions have been neither considered by the District Court nor briefed to us on appeal. In this instance the court held a hearing, appropriately convened, on the issue of probable cause. We are called upon to review the consequences of that hearing, after the facts have come out. The evidence, fully explored at the hearing, revealed that what was said in the affidavit was in vital respects erroneous, and that the facts, when truly and correctly stated, would not support the issuance of a warrant.

* * * the warrant must contain allegations that go beyond the affiant\'s mere suspicion or his repetition of another\'s mere suspicion. The warrant is a check upon the officer\'s zeal in `the often competitive enterprise of ferreting out crime,\' and hence it must be tested against objective facts presented to a detached magistrate.

Gonzales v. Beto, 425 F.2d 963 (5th Cir. 1970).

"Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit\'s showing of probable cause, the court was required to grant the motion. The judicial system cannot be a party to the use of tainted evidence on the basis that, arguably, the defendant was not entitled to bring to the attention of the court what the court has come to know anyhow."

As in Upshaw, when the affidavit in question here is purged of its erroneous statement, it consists of nothing more than Agent Kirk's bare statements of belief and cause to suspect that the fruits of the bank robbery were in the residence at 11506 Whitmore Street. "Mere affirmance of belief or suspicion is not enough." Nathanson v. United States, supra, 290 U.S. at 47, 54 S.Ct. at 13. We hold that the search warrant issued to Agent Kirk was invalid. Therefore, it cannot be used to justify the search and seizure of the evidence introduced at defendant's trial.

Having concluded that the search and seizure here cannot be sustained on the basis of a search warrant, we must determine if there is another theory upon which to uphold the search.

II.

Because the search here must now be characterized as warrantless, the government must establish that it is within one of the exceptions to the warrant requirement. Defendant concedes that his arrest was lawful. The issue then is whether the search of the suitcase located a foot and one-half away from the head of his bed was incident thereto. Both the government and the defendant recognize that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) is dispositive of this issue.

In Chimel the Supreme Court clarified the standard applicable in the "search incident to arrest" situation.

"* * * When an arrest is made, it is

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