485 F.2d 201 (6th Cir. 1973), 71-1378, United States v. Dunavan

Docket Nº71-1378, 71-1379.
Citation485 F.2d 201
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Robert Orville DUNAVAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee. v. James Edward MITCHELL, Defendant-Appellant.
Case DateOctober 05, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 201

485 F.2d 201 (6th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Orville DUNAVAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee.

v.

James Edward MITCHELL, Defendant-Appellant.

Nos. 71-1378, 71-1379.

United States Court of Appeals, Sixth Circuit.

October 5, 1973

Argued Dec. 15, 1971.

Page 202

Dale Quillen, Nashville, Tenn., on brief for appellants.

Ira E. Parker, III, Asst. U. S. Atty., Nashville, Tenn., for appellee; Charles H. Anderson, U. S. Atty., on brief.

Before WEICK and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

EDWARDS, Circuit Judge.

Appellants Dunavan and Mitchell appeal from convictions for robbing a federally insured bank of approximately $40,000 in violation of 18 U.S.C. § 2113(d) (1970). Each was sentenced to 12 years after a jury trial in the United States District Court for the Middle District of Tennessee.

On May 11, 1970, the Green Hills Branch of the Third National Bank in Nashville, Tennessee, was held up and robbed.

On May 17, 1970, appellants Dunavan and Mitchell were arrested at Pensacola, Florida, and found to be in possession of proceeds of the Green Hills Branch bank robbery. The circumstances leading to the arrests produce the two appellate issues in this appeal.

At about 4 p. m. on Sunday, May 17, 1970, appellant Dunavan was found by passers-by at a beach near Pensacola, Florida, in a disabled car which had set the grass on fire below it. He was foaming at the mouth and unable to talk. They removed him from the car, put out the fire, and went through the automobile seeking to identify him, thereby finding a Social Security card, $961 in cash, a motel key, and a car rental agreement for the automobile in appellant Mitchell's name. They also found two locked briefcases and called the police. All of these items were turned over to a Deputy Sheriff, who dispatched Dunavan to the hospital and then went to the motel, taking the briefcases with him. He testified that he and other officers who saw Dunavan at the scene "thought he was going to die," and that he and two other officers entered Dunavan's motel room with the key which had been turned over to him:

So, we decided to go on in the room and see if we could find some identification or information or something to give the hospital about Mr. Dunavan.

In the motel room the officers found two small keys which opened one of the briefcases. It was full of money, banded with Green Hills Branch Bank bands, marked with red dye and smelling of gas. Some of the money was "bait" money (identifiable) and the dye and gas resulted from a bank anti-robbery device.

The officers had seen a woman emerge from an adjoining room as they arrived and had seen that the door was open between the two rooms. On questioning this woman they learned that one of two men occupying the rooms was a diabetic and kept his insulin in one of the briefcases. After an officer was sent to the hospital to get a key to it from Dunavan, this case was then opened. The insulin and a syringe were found, along with a lot more money marked like the money in the first case.

With a description of Mitchell and information as to his whereabouts from the same woman, two officers then arrested him for "vagrancy" and brought

Page 203

him back to the motel rooms. There Mitchell was warned of his constitutional rights and questioned. He denied knowing anything about the money but gave an account of his whereabouts prior to being in Pensacola, which the government was able at trial to contradict.

On appeal appellant Dunavan contended that the District Court erred in failing to suppress the evidence seized in the two briefcases because it had been seized in violation of the Fourth Amendment.

Appellant Mitchell made the same Fourth Amendment contention and also claimed that he had been illegally arrested and, hence, it was error to admit his statement made to the officers while in custody in the motel room.

On this court's first consideration of this appeal, 464 F.2d 1166, we were unable to ascertain with certainty from the record the time relationship between appellant Dunavan's hospitalization, his treatment there, and his release from the hospital and the happening of the search of the first briefcase which provided obvious probable cause for the officers to believe they had a bank robbery on their hands.

The case was thereupon remanded to the District Court "for such additional hearing and findings as may be required to answer the following question:

Whether the police knew that Dunavan had recovered consciousness and been released from the hospital 1) when they entered his motel room, and 2) when they opened the first briefcase?"

At the hearing on remand the District Judge heard four witnesses, including the emergency room nurse at the hospital concerned, one of the officers who participated in the motel room search, the officer who went to the hospital to get the key to the second briefcase, and the officer who kept the police dispatch log.

The District Judge made the following findings:

Based upon the testimony and exhibits introduced at the January hearing and relevant testimony taken at the trial and at the previous hearing on the motion to suppress, the Court finds that the defendant was brought to the hospital on May 17,...

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31 practice notes
  • 640 P.2d 837 (Alaska App. 1982), 5081, Gallmeyer v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • February 18, 1982
    ...States v. Moskow, 588 F.2d 882 (3rd Cir. 1978); State v. McCleary, 116 Ariz. 244, 568 P.2d 1142 (Ariz.App.1977); United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973); West v. State, 617 P.2d 1362 (Okl.Cr.App.1980); State v. Super, 37 Or.App. 731, 588 P.2d 106 (1978); State v. Gallo, 20 Wa......
  • 435 N.E.2d 831 (Ill.App. 2 Dist. 1982), 80-547, People v. Kincy
    • United States
    • Illinois Court of Appeals of Illinois
    • May 10, 1982
    ...the correct basis for the arrest. (United States v. Lester (8th Cir. 1981), 647 F.2d 869, 873; United States v. Dunavan (6th Cir. 1973), 485 F.2d 201, 205; United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; United States v. Carr (D.Conn.1978), 445 F.Supp. 1383, 1387, aff'd (2d Cir. 1......
  • 128 F.Supp.2d 1070 (E.D.Mich. 2001), 00-CR-20025, United States v. Meixner
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • January 24, 2001
    ...The Sixth Circuit's rule, set forth earlier in this opinion, does not utilize a sliding scale approach. In United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973), cited by the government in this case, the Court of Appeals recognized the emergency exception as an exigent circumstance and ado......
  • 562 P.2d 422 (Colo. 1977), 27434, People v. Amato
    • United States
    • Colorado Supreme Court of Colorado
    • April 11, 1977
    ...which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'). [2] See United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973) which suggested that the United States Supreme Court recognized the emergency doctrine in dictum in the following cases: Unit......
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30 cases
  • 640 P.2d 837 (Alaska App. 1982), 5081, Gallmeyer v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • February 18, 1982
    ...States v. Moskow, 588 F.2d 882 (3rd Cir. 1978); State v. McCleary, 116 Ariz. 244, 568 P.2d 1142 (Ariz.App.1977); United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973); West v. State, 617 P.2d 1362 (Okl.Cr.App.1980); State v. Super, 37 Or.App. 731, 588 P.2d 106 (1978); State v. Gallo, 20 Wa......
  • 435 N.E.2d 831 (Ill.App. 2 Dist. 1982), 80-547, People v. Kincy
    • United States
    • Illinois Court of Appeals of Illinois
    • May 10, 1982
    ...the correct basis for the arrest. (United States v. Lester (8th Cir. 1981), 647 F.2d 869, 873; United States v. Dunavan (6th Cir. 1973), 485 F.2d 201, 205; United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; United States v. Carr (D.Conn.1978), 445 F.Supp. 1383, 1387, aff'd (2d Cir. 1......
  • 128 F.Supp.2d 1070 (E.D.Mich. 2001), 00-CR-20025, United States v. Meixner
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • January 24, 2001
    ...The Sixth Circuit's rule, set forth earlier in this opinion, does not utilize a sliding scale approach. In United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973), cited by the government in this case, the Court of Appeals recognized the emergency exception as an exigent circumstance and ado......
  • 562 P.2d 422 (Colo. 1977), 27434, People v. Amato
    • United States
    • Colorado Supreme Court of Colorado
    • April 11, 1977
    ...which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'). [2] See United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973) which suggested that the United States Supreme Court recognized the emergency doctrine in dictum in the following cases: Unit......
  • Request a trial to view additional results
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