U.S. v. Bolin

• Citation: 514 F.2d 554
• Decision Date: 25 April 1975
• Docket Number: No. 74-1809,74-1809
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert C. BOLIN, a/k/a Bob Bolin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 554

514 F.2d 554

UNITED STATES of America, Plaintiff-Appellee, v. Robert C. BOLIN, a/k/a Bob Bolin, Defendant-Appellant.

No. 74-1809.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1975.

Decided April 25, 1975.

Franklin S. Wallace and David L. Thompson, Rock Island, Ill., for defendant-appellant.

Donald B. Mackay, U. S. Atty., Springfield, Ill., Robert J. Kauffman, Asst. U. S. Atty., Peoria, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.

HASTINGS, Senior Circuit Judge.

Defendant, Robert C. Bolin, was convicted after a trial by jury of knowingly and intentionally using a communication facility, the mail, to facilitate the importation of cocaine in violation of 21 U.S.C. §§ 843(b) and 843(c). A sentence of four years imprisonment was imposed. This is an appeal from the judgment of conviction.

THE FACTS

The facts in this case were largely undisputed. The defense presented no evidence at trial, but rested its case entirely on its argument that the government's evidence did not prove beyond a reasonable doubt that the defendant had the requisite intent to commit the crime.

The following statement of the facts is supported by the evidence introduced by the government at trial. A supervisory customs mail entry aide in New York The next morning, defendant arrived at the post office, signed a receipt for the letter and accepted delivery. He then left the post office and entered his pick-up truck.

City, George Kallnischkies, intercepted and opened an envelope addressed to the defendant in Woodhull, Illinois, which had come from Colombia. The envelope contained two post cards taped together that were wrapped in a carbon paper. Inside the post cards was a glassine bag containing a white powdered substance. Kallnischkies field-tested the substance in New York and found it to be cocaine. Following instructions from the Drug Enforcement Administration, Kallnischkies resealed the envelope and sent it to Postal Inspector W. J. Babl in Rock Island, Illinois, for controlled delivery. Inspector Babl notified state and local law enforcement officials of the receipt of the letter. Babl accompanied the rural carrier who normally delivered mail at defendant's address, but when they found no one at home, a mail arrival notice was left in the mailbox and the letter returned to the Woodhull post office.

Special Agent Michael Ernst of the Illinois Bureau of Investigation went to the passenger side of the truck, opened the door, identified himself as a police officer and told the defendant to get out of the truck. The defendant picked up the letter which was on the front seat of the truck, handed it to Ernst and asked him if that was what he was looking for. Officer Robert J. Speidel of the Henry County Sheriff's Department approached the driver's side of the truck, drew his gun, identified himself as a police officer and told the defendant that he was under arrest. The defendant was frisked and a .38 caliber Derringer pistol was found on his person.

The defendant was then taken to the Henry County jail. There, he signed a printed form entitled "Permission to Search" in which he consented to have the officers search his home and take from the premises any property which they wished to have as evidence. At a pretrial hearing Ernst explained the circumstances under which the defendant had given his consent. He testified, "We told him that if he signed the search waiver, that we would not arrest his girl friend." Pursuant to this search waiver, officers conducted a search of defendant's home. Speidel found three letters in a night stand which were introduced into evidence at the trial.

The three letters were addressed to the defendant and were signed "Lowell." Two of the letters had been sent from Colombia and the third from Ecuador. The first letter described Lowell's work with a research team investigating the use of drugs by Indians in Colombia. The letter continued:

Bob, my main trip that I would like you to consider, which I hardly would thing (think) you to pass up . . . and that is my oil-painting on plex-a-glass truly master-pieces weighing up to an oz. (can you dig) of snow-capped mountain and rushing waters I'm selling them for $300.00 they can be reprinted 3 times at a $1,000.00 a piece . . . just as clean as can be . . . .

The second letter acknowledged receipt of a letter from the defendant and promised that the defendant's order for "paintings" would be quickly processed. The third letter proposed another deal, this time for "16 oil paintings fresh from Bolivia." The letter continued:

Bob that can be 3000 hits of very weak paint dig . . . window-pain (sic) cut 6 times or whatever you can come up with 16 oil painting(s) here cost $8,500.00. (T)hat's the cheapest for clean and the best and my artist will do it for 3000 hits or 2000 and the 400.00 I still have of yours man you can't (beat) that deal . . . . Mailing to here man isn't any problem . . . .

Later, the substance contained in the letter taken from the defendant at the time of his arrest was subjected to a number of tests in the laboratories of the Illinois Bureau of Investigation and found to be cocaine.

Upon this evidence, the jury found the defendant guilty.

ISSUES

In this appeal from the judgment of conviction defendant raises three issues: ¹

I. Whether it was error to deny defendant's motion to suppress the cocaine seized at the time of defendant's arrest.

II. Whether it was error to admit evidence at trial that the defendant had been armed at the time of his arrest.

III. Whether it was error to deny defendant's motion to suppress evidence of letters seized at defendant's home.

I.

Prior to trial, defendant moved to suppress the evidence of the envelope with cocaine seized from him at the time of his arrest. Defendant contended that the search of the envelope in New York was illegal, making the arrest and search incident thereto the "fruits of the poisonous tree."

The court held a hearing on the motion to suppress the evidence. At the hearing the government introduced into evidence a completed Bureau of Customs form which had been received by Postal Inspector Babl in a package with the letter containing the cocaine. The form, signed by customs employee George Kallnischkies, indicated that he had seized the letter addressed to the defendant at the Port of New York after it was detected during a usual examination of foreign mail under an obscenity program.

Defendant objected to introduction of the customs form on the ground that it was hearsay. Even if the form was hearsay, it is clear that hearsay evidence is admissible in a hearing on a motion to suppress. United States v. Matlock, 415 U.S. 164, 174-175, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). See Federal Rules of Evidence, Rules 104(a) and 1101(d)(1), Pub.L.No.93-595 (January 2, 1975). ²

Furthermore, it is settled law that the validity of a search or arrest can be supported by evidence which was adduced at trial even though it was not presented at the pretrial suppression hearing. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Holloway v. Wolff, 8 Cir., 482 F.2d 110, 113 n.2 (1973); United States v. Canieso, 2 Cir., 470 F.2d 1224, 1226 (1972), and cases cited therein. George Kallnischkies himself testified at the trial that the letter was searched pursuant to procedures of the Bureau of Customs for inspecting foreign mail. This testimony may also be considered in our determination of the validity of the search in New York.

Our court's recent decision in United States v. Odland, 7 Cir., 502 F.2d 148, cert. denied, 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed.2d 680 (1974), reviewed the law of border searches and its application to searches of first class mail. The court noted that "(a)ny person or thing coming into the United States is subject to search by that fact alone, whether or not there be any suspicion of illegality directed to the particular person or thing to be searched." 502 F.2d at 151. The court went on to hold that first class letters are not exempt from this general rule.

Thus, the search in New York of the letter addressed to the defendant was not unconstitutional and could provide the officers with information they properly could use in determining whether they had probable cause to arrest the defendant.

At the time of the defendant's arrest the officers knew that the defendant had received from the mails an envelope containing cocaine. This was sufficient evidence to give them probable cause to arrest the defendant. Cf. Brubaker v. King, 7 Cir., 505 F.2d 534, 538 (1974); United States v. Molinaro, E.D.Wis., 350 F.Supp. 293 (1972).

When an arrest is lawful, the officers may search the arrestee's person and the area within his immediate control from which he might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). At the time of defendant's arrest the letter containing the cocaine was next to the defendant on the front seat of his truck. Since it was within his immediate control, the letter could be seized in a search incident to the arrest. ³ The district court did not err in denying defendant's motion to suppress the evidence of the envelope which contained cocaine.

II.

Defendant contends that the district court erred in admitting evidence that the defendant was armed at the time of his arrest. Prior to trial the defendant filed a motion in limine requesting that the government not introduce at trial any evidence of the fact that defendant was carrying a gun at the time of his arrest. At a pretrial hearing on the motion, the government told the court that it would not be introducing the gun. ⁴ Based on that representation, the court denied the motion in limine.

In its opening statement to the jury, the government made no mention of the fact that defendant had been armed. The...