United States v. Shye

Decision Date07 March 1974
Docket NumberNo. 73-1968 to 73-1971.,73-1968 to 73-1971.
Citation492 F.2d 886
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Reginald Jerome SHYE et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Robert S. Brandt (Court-appointed), Nashville, Tenn., on brief, for Reginald Jerome Shye.

Carlton H. Petway (Court-appointed), Nashville, Tenn., on brief, for James Clarence Floyd.

Clark H. Tidwell (Court-appointed), Nashville, Tenn., on brief, for James Alfred Stevenson.

William Buford Bates (Court-appointed), Nashville, Tenn., for James Edward Cox.

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

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

PER CURIAM.

These appeals, which were consolidated for hearing, were brought by four co-defendants who were convicted of bankrobbery in violation of 18 U.S.C. § 2113(d). An interlocutory appeal pursuant to 18 U.S.C. § 3731 was brought by the government from the granting, in part, of defendants' pretrial motion to suppress certain evidence. On appeal, that order was vacated in part and affirmed in part. United States of America v. Shye et al., 473 F.2d 1061 (6 Cir. 1973).

The convictions from which these appeals are taken occurred in jury trials, following our remand. On appeal, appellants present two issues: (1) whether the arresting officers' warrantless entry and search of an apartment was valid, and (2) whether the district court should have suppressed evidence seized as the result of the arrest of appellants in the apartment and a search of that part of the apartment under their control.

We affirm the convictions for the reasons set forth in Chief United States District Judge Gray's order of July 9, 1973, attached hereto as an appendix.

APPENDIX

In The

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

UNITED STATES OF AMERICA,

v. REGINALD JEROME SHYE, JAMES EDWARD COX, JAMES CLARENCE FLOYD, JR. and JAMES ALFRED STEVENSON

Criminal No. 14,935

ORDER

(Filed July 9, 1973)

The defendants in this criminal action have been indicted for armed robbery in violation of 18 U.S.C. Section 2, 2113(a), and 2113(d). For the second time, the action is before the court on a motion to suppress evidence which the defendants contend was the product of an illegal arrest, search, and seizure. The facts surrounding the arrest, search, and seizure in question were adduced at three separate hearings, the Magistrate's hearing and the two suppression hearings held by this court, the transcripts of which are a part of the record herein. The pertinent facts are set forth below as a prelude to the recitation of the procedural history of the case and to the disposition of the issues now before the court.

The Nashville City Bank and Trust Company was robbed shortly before noon on January 18, 1972, by four Black males, described as follows: one was short and one was tall, the other two being about (fol. 2) six feet in height; the short robber wore a ski mask and the other three wore distinctive hats, one of which was fur and another of which had a wide brim; some of the robbers wore coats that appeared to be of leather, one of which was lavender in color; and the short man had a sawed-off shotgun, and two others had pistols. The robbers used a white sack to carry the money, and they were seen leaving the bank in a 1968 or 1969 two-toned "fastback" Ford Fairlane automobile. (This information was given the police officers and F.B.I. agents by witnesses shortly after the robbery.)

On the day before the robbery, January 17th, Detective Summers of the Nashville Metropolitan Police Department had gone to the apartment of defendant James Edward Cox, located at 1208 26th Avenue, North, Nashville, Tennessee, to question Cox about another bank robbery. When the detective arrived at the apartment, he observed Cox working on a 1969 "fastback" Ford Fairlane automobile and going back and forth between the car and his apartment, Apartment "A." Detective Summers did not question Cox, but merely observed him for a time; he wrote down the license number of the car and the address of the apartment.

The next day, when Summers arrived at the scene of the robbery, the description of the get-away car triggered his memory of the events of the day before and he immediately contacted other officers by radio so as to ascertain whether the car was at the same location where he had seen it the previous day. He was told that the car was parked within forty or fifty yards of Cox's apartment, and so Summers, some F.B.I. agents and other Metropolitan Police officers went to Apartment "A," 1208 26th Avenue, North.

Agent Hamar of the F.B.I. immediately went to where the car was parked, got the license number and ordered a radio check thereof. (Fol. 3) While the check was being made, Hamar looked through the car window and observed a white sack and a hip-length wool coat on the car seat. He also felt the car radiator and noted that it was warm, indicating that it had recently been driven. Other agents arrived, bringing with them the man, Mr. Angel, who had described the get-away car. Mr. Angel identified the automobile in question as the get-away car. At about the same time, the radio license check came in, revealing that the plates on the Ford were registered to a Chevrolet. Based on all this information, Hamar ordered a search of the car. This search turned up a sawed-off shotgun, as well as the coat and sack mentioned Supra.

In the meantime, other officers and agents had proceeded to Apartment "A," which Detective Summers had indicated was the apartment into which Cox kept returning in the course of working on the car the day before. They identified themselves and began knocking on both the front and back doors to the apartment, but received no response and could hear no noises from inside the apartment. This identification and knocking procedure was repeated intermittently during the entire time the officers were outside the apartment.

Other officers began checking the other apartments to find out where they could get a key to the apartment in question and to confirm the fact that Cox lived there. They were successful on both counts, and F.B.I. Agent Thune was sent to a downtown realty company to obtain a key to the apartment. When Thune returned with a key, it was tried on both doors, but it would not open either.

During this period of time, the F.B.I. agents in charge, Agents (fol. 4) Rodgers and Hamar, held a discussion about whether they should attempt to get a search warrant for the apartment or whether they should await the arrival of Mrs. Cox (they having learned that she would be returning from work in approximately thirty minutes) and obtain her consent for a search of the apartment. They decided to pursue the consent route and to forego the warrant procedure.

Approximately an hour after the officers had first arrived on the scene but before Mrs. Cox's expected return, the situation changed drastically. Either five or six law enforcement officers were at the front door when it opened slightly and someone from inside said, "We're coming out." The officers could see several Black males inside at this point.

Four witnesses testified concerning the succeeding sequence of events: defendant Cox, Agent Harrigan of the F. B.I., and Officers Smith and Pollard of the Metropolitan Police. The agent and the officers were just outside the door and, of course, defendant Cox was inside. Agent Harrigan testified that one of the officers ordered the occupants to come outside. Officers Smith and Pollard testified that the door began to close slightly and slowly and that someone from inside said, "Come on in." (Agent Harrigan did not corroborate the officers' assertion that someone said, "Come on in"; neither did defendant Cox.)

In any event, when the door began to close slowly, the officers rushed in and promptly placed the defendants against a wall in the apartment. While some of the officers were taking care of the defendants, other officers began to fan out through the apartment, picking up items of evidence as they went. The items seized, thirteen in number, included articles of clothing resembling those described as having been worn by the bank robbers, six .38 calibre bullets, two (fol. 5) pistols, four bags of money, some other money enclosed by rubber bands, and a gold card case containing identification papers and eleven $100.00 bills.

When the defendants were taken down to the station house, their statements were taken and defendant Shye surrendered a $10 bill that was on his person.

In advance of trial, the defendants moved to suppress the items of evidence taken from the car and from Cox's apartment. The initial suppression hearing was held on May 24, 1972. Following that hearing, this court ordered suppression of the evidence taken from the car and part of the evidence taken from the apartment.1 Pursuant to 18 U.S.C. Section 3731, the Government appealed that part of the court's Order suppressing the evidence seized from the car and one bag of money found in the apartment.2

On January 23, 1973, the United States Court of Appeals for the Sixth Circuit filed an Opinion which reversed this court's suppression of the evidence seized from the car and affirmed this court's suppression of the bag of money found in the apartment. In remanding the case to this court, however, the Court of Appeals raised the question of whether the police officers were justified in making a warrantless entry into the apartment of defendant Cox, but declined to reach the issue thus raised. Though the Court did not reach (fol. 6) the issue of the warrantless entry, the footnote to the Opinion indicated that the Court had serious reservations about the legality of such an entry. United States v. Shye, 473 F.2d 1061 (6th Cir. 1973).

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