U.S. v. Holland
| Citation | 511 F.2d 38 |
| Decision Date | 02 June 1975 |
| Docket Number | No. 74--1655,74--1655 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Johnnie HOLLAND, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Robert J. Dugan, Mohney, Goodrich & Titta, Grand Rapids, Mich. (Court- appointed--CJA), for defendant-appellant.
Frank Spies, U.S. Atty., Robert C. Greene, Asst. U.S. Atty., Grand Rapids, Mich., for plaintiff-appellee.
Before EDWARDS and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.
This case involves the entry by police into an American home against the wishes of the occupant and without a judicially issued search warrant. The reason given for the entry is the claim of 'hot pursuit' of an armed bank robber. The prosecution insists that circumstances of this case come within the 'hot pursuit' exception in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The defendant contends that the pursuit was not that warm and that the intervention of a neutral magistrate's judgment was essential to lawful entry of the home concerned. Although the record involved here does not involve a police chase with eyeball contact, we believe the detailed facts known to the police and the time sequences concerned warrant our affirmance of the judgment of conviction of the United States District Court for the Western District of Michigan.
There is no doubt about appellant Holland's guilt. The jury had before it eyewitness identification of Holland as the armed man who robbed the First Federal Savings and Loan at Niles, Michigan, at approximately 4 o'clock in the afternoon of January 28, 1974. In addition, however, the jury heard testimony concerning Holland's confession after Miranda warnings, saw the revolver which the police had seized and which was introduced as an exhibit, and likewise heard testimony concerning the money which had been taken from the bank, most of which was recovered from the house under a search warrant issued after Holland and an associate had been arrested and the gun had been found. Since some of the facts detailed in the sentence immediately preceding were admitted because of the District Judge's denial of a motion to suppress evidence made before trial started, if the search was in violation of the Constitution, disposition of this case of necessity would require vacation of judgment and new trial under circumstances where much of the evidence of guilt would be inadmissible. The United States Supreme Court has, however, on many occasions upheld the right of American citizens to be free from arbitrary police intrusions into the sanctity of their homes, even if it might mean that a guilty person might go free. See Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This court has followed these decisions faithfully. United States v. Griffin, 502 F.2d 959 (6th Cir. 1974); United States v. Stoner, 487 F.2d 651 (6th Cir. 1973); United States v. Nelson, 459 F.2d 884 (6th Cir. 1972).
Our affirmance of this conviction is predicated upon what we deem to be prompt, effective, and constitutionally permissible police work by a number of police officers in a small Western Michigan city numbering 17,000 persons. The critical observations and deductions, however, were supplied by one man. On that day Frank Bickel proved to be the small-town detective who could.
The robbery occurred at 3:55 p.m. when a young black male, subsequently described as 6 ft., 2--4 inches tall, clean shaven, with a short Afro haircut, and wearing a 3/4 length tan coat appeared at the bank, drew a gun, and demanded and received money from one of the tellers. In the course of packing the money into a bag he was carrying, he removed a bag of Fritos which he had been eating and left it on the counter. The police received the alarm at 4:08 p.m. and arrived at the bank shortly thereafter.
Plainclothes detective Bickel arrived at the bank between 4:10 and 4:20, received a description of the bandit from the first officers to arrive, and proceeded to circle the area alone in his car. We deem his testimony at the suppression hearing as to the trail he picked up and his following of it to be critical to this case:
Q What did you observe, if anything?
A I found tracks leading from the direction of the bank, approximately a block away from the bank, leading in a southern direction from the bank, going from the bank.
Q Now when you say you saw tracks, were these tracks in the snow or in the dirt, or what?
A Well, there was snow.
Q Tracks in the snow?
A Yes.
Q Was there anything significant about the tracks?
A Well, the only thing was they were pretty decent size strides. Somebody was running was what it was.
Q How can you tell that all the tracks you were looking at were made by the same foot or feet?
A Well, it had a rare, kind of a rare heel on it. Most heels either go straight up and down or slant a little toward the front. This heel cut back in. It had a pretty sharp cut back.
Q Why did you think that was significant?
A Well, it was a different type of heel to me.
Q Was there a lot of snow on the ground or was it just a light covering of snow?
A There was approximately two inches, two, two and a half inches.
Q Two and a half inches of covering?
A Yes, I would say two and a half to three.
Q Well, where exactly did you see the footprints, on the sidewalk or on the street or on a lawn?
A Well, it was right along the edge of the roadway is where it was.
Q On the edge of the roadway?
A And then it cut across the lawn, across the--
Q Okay. Were you by yourself when you were trailing these footprints?
A No, Sergeant Toner was--or, Captain Toner was there.
Q Okay. Where did you and Captain Toner trail the footprints to, where did they lead?
A They led up to a house at 1644 Maple Street, which is two blocks away from the bank.
Bickel's testimony as to his observations at 1644 Maple Street continued:
Q When you say that the footprints led you to 1644 Maple, you mean you trailed them right up to the front door?
A No, they went to--
Q Where did they lead to?
A There had been a car sitting there because it was more or less melting that day, and you could see the snow where it melted and ran off of the car, you know, how you park a car. And it appeared they got into the car there, into a car.
Q It appeared that somebody got into a car there?
A That same track that went across the lawn, yes.
THE COURT: You say it appeared to lead to the car?
A Yes, it led to the car, right.
Q Were there other footprints in the snow in that neighborhood?
A. Yes. They were--I would say on the other side of the car, I would say on the right side of the car there probably was, leading in and out of the house, you know, people--
Bickel identified his time of arrival at the Maple Street residence as approximately 4:20 p.m. and went on to describe a conversation with a woman (later identified as Eva Kirtdoll) who came out of the house to inquire about what was going on:
Q What did you tell her?
A I told her we had some trouble down at the bank, down at the corner at the bank. And evidently she knew what I meant. She didn't say no more. I asked her if a car had just left there, and she said yes, there had been a car that just pulled out, it was her son, and he had picked up his children.
Q Okay. And that is all she told you?
A. Yes.
Q And then did you do anything further at that residence?
A No. We left.
Q You left the residence?
A Yes.
Q And where did you go after that?
A We went to Ferry Street. I am not sure of the address.
Q Would it have been 844 Ferry--814, excuse me?
A 814, yes.
Q Why did you go there?
A We went there because that is where she said her son had lived. A Billy Kirtdoll, I guess it was.
At the Kirtdoll house conversation with Billy Kirtdoll (as shown below) triggered Bickel's recollection of an earlier observation which he had made but had not then related to the bank alarm:
Q Did you question Billy Kirtdoll?
A As I walked up, they asked him where he had been, I believe, and where he had just come from.
Q And what did he say?
A His reply was that he had just come from his mother's house on Maple Street with his children, I believe he said.
Q Did he say anything else?
A And I asked him who was the other fellow that he had--because--I have got to back up, because earlier I saw this car. I didn't know who it was at the time I was going to the bank. I saw a car, a green car with two colored subjects in it.
Q One of them being Billy?
A I would not say.
Q You didn't know who the people in the car were?
A No.
Q But did you ask Billy if he had been with someone else when he drove from his mother's house to his house?
A When Toner and Winquist asked him this, his answer was that he picked up his children at his mother's house, and he let it drop at that.
Q And then you asked him if he had been with somebody else, or did you ask him that?
A I said, 'Who was that other fellow you had with you?'
Q And what did he say?
A He said, 'That was you that saw me at 16th and Oak, wasn't it?' I said, 'Yes.'
Q What else did he say, if anything?
A He then said he had--I am not sure what relation it is--Henry Gross with him.
Q He said that was a relation of his?
A Some relation, yes, and I don't remember what it was.
Bickel also testified that he knew Henry Gross and knew that Gross had a prison record. The examination continued as follows:
Q Okay. Now, after Billy Kirtdoll told you that Henry Gross had been in his car, what did you do at that point?
A We went to Henry Gross's house.
Q Okay. And did you know where Henry...
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