U.S. v. Bailey

• Citation: 547 F.2d 68
• Decision Date: 29 December 1976
• Docket Number: No. 76-1227,76-1227
• Parties: UNITED STATES of America, Appellee, v. Derwin Hirah BAILEY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 68

547 F.2d 68

UNITED STATES of America, Appellee, v. Derwin Hirah BAILEY, Appellant.

No. 76-1227.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1976.

Decided Dec. 29, 1976.

Peter J. Thompson, Minneapolis, Minn., for appellant.

John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., John M. Lee, Asst. U. S. Atty., and Gordon P. Erspamer, Intern, Richard Fellows, Intern, Minneapolis, Minn., on brief.

Before BRIGHT and WEBSTER, Circuit Judges, and TALBOT SMITH, Senior District Judge. ^*

BRIGHT, Circuit Judge.

Appellant-Derwin Bailey was convicted in the District Court for the District of Minnesota, after trial to the court (Alsop, J.), of impersonating a creditor of the United States, in violation of 18 U.S.C. § 914, and of unlawful possession of stolen mail, in violation of 18 U.S.C. § 1708. The district court sentenced Bailey to two concurrent three-year prison terms to run consecutively with a state prison term to which Bailey had previously been sentenced. Bailey appeals, contending that: (1) the police obtained a United States treasury check from his automobile in an unlawful search, and (2) that the district court committed error in imposing a three-year prison sentence upon Bailey by relying upon a presentence report which included information relating to Bailey's prior arrest record. We reject Bailey's contentions, and affirm the conviction and sentence.

The pertinent record discloses the following factual background, largely undisputed. About 3:30 p. m. on the afternoon of May 24, 1975, Delbert Stevens, a Richfield, Minnesota police officer assigned to the juvenile office, was engaged in making "tavern checks," looking for minors who might be violating Minnesota's underage drinking laws. He also was on the lookout for robbers and short-change artists who had been reported as operating in the area. While sitting in his unmarked squad car, Stevens noticed a young, black male (later identified as Bailey) leave a car containing two other young people and enter the Belt Line Bar in Richfield. All three individuals appeared to Stevens to be underage. After two or three minutes, Stevens saw Bailey leave the bar and return to the car at a fast pace. Bailey jumped into the driver's seat, backed the car a half block down the street and through a controlled intersection, a violation of a Richfield city ordinance, and turned onto another street.

Stevens, suspicious because the youthful-looking Bailey had come out of the bar in such a hurry, followed Bailey's car and called the police radio dispatcher to request that the Belt Line Bar be contacted to determine whether there had been any trouble with a young, black male who had just left the bar. After telephoning the Belt Line, the dispatcher radioed Stevens that a very nervous, young, black male had entered the Belt Line and tried to cash a $100 federal tax rebate check. The young man reportedly had been insistent on cashing the check, and had offered to buy a large amount of beer with the check, but the barmaid at the Belt Line refused to cash it.

By this time, Bailey had driven onto an interstate highway with Stevens still following. Stevens decided to stop Bailey's car and make further inquiry. Since his own car was unmarked, Stevens radioed a request for a marked squad car to make the stop. Edward Gabrysh, the driver of a marked Richfield police car, after being advised by radio of the relevant facts, proceeded to stop Bailey's car. Stevens, who was still following close behind, also stopped his car and joined Officer Gabrysh. Gabrysh asked to see Bailey's driver's license. Bailey got out of the car and walked around to the passenger's side and stood on the shoulder of the road, where Gabrysh examined Bailey's license. Gabrysh handed Bailey's license to Stevens and moved towards Bailey's car. Gabrysh then saw a young man sitting on the right front seat suddenly bend down and attempt to put a brown window envelope under the dashboard of the car. Gabrysh recognized the window envelope as the type used to mail United States Treasury checks. Gabrysh requested the passengers to get out of the car and, after they did so, Gabrysh retrieved a brown window envelope from under the dashboard. The envelope contained a federal tax rebate check dated May 23, 1975, payable to one Gregory Robert Buckle.

Bailey was taken to the police station where he signed a statement indicating that he understood his Miranda rights, but Bailey refused to sign the portion of that form acknowledging a waiver of his rights. Bailey declined to make a written statement, but did make an oral statement asserting that he had attempted to cash the check for a friend.

I. Seizure of the Check.

It is clear that the fourth amendment forbids a police officer from stopping a car for investigative purposes unless the officer can point to " specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). See also Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973); Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969). Bailey contends that there were no such suspicious circumstances known to Officer Stevens when he decided to have Bailey's car stopped, and that the stop was therefore illegal. We disagree.

Officer Stevens knew that a very nervous young man, who he believed to be a minor, had tried to cash a $100 federal tax rebate check in a bar, and, when refused, had left the bar in a hurry, backing his car through a controlled intersection, in violation of...