569 F.2d 62 (D.C. Cir. 1977), 76-2005, United States v. Wylie

Docket Nº:76-2005.
Citation:569 F.2d 62
Party Name:UNITED STATES of America v. Robert S. WYLIE, a/k/a Bobby S. Wylie, Appellant.
Case Date:November 15, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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569 F.2d 62 (D.C. Cir. 1977)

UNITED STATES of America

v.

Robert S. WYLIE, a/k/a Bobby S. Wylie, Appellant.

No. 76-2005.

United States Court of Appeals, District of Columbia Circuit

November 15, 1977

Argued March 17, 1977.

Certiorari Denied March 27, 1978.

See 98 S.Ct. 1527.

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David B. Weinberg, [*] with whom Michael E. Geltner (appointed by this court), was on the brief, for appellant.

Carol E. Bruce, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James M. Hanny, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

Opinion filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III, dissenting in part.

McGOWAN, Circuit Judge:

This is an appeal from a conviction for one count of possession of a bank statement stolen from the mail in violation of 18 U.S.C. § 1708. The sole issue presented is whether the District Court erred in denying a pretrial motion to suppress the bank statement and the envelope in which it was enclosed, which appellant claimed were the fruits of an unreasonable investigative "seizure" of his person. Although this is a relatively close case on its facts, as Judge Bryant's comments in the course of the suppression hearing indicated, we are satisfied that the ruling here challenged did not contravene appellant's Fourth Amendment rights and, accordingly, affirm his conviction.

I

The only witness at the suppression hearing was Officer Franck, a veteran of six years with the Metropolitan Police Department, throughout which time he had engaged in routine patrols of local banks as part of his official duties. In the early afternoon of February 10, 1976, having been assigned to "bank detail" for the day, Officer Franck entered a branch of the National Bank of Washington located in the 1300 block of Connecticut Avenue, Northwest. Although he had been in that particular branch "many, many times," he was not himself a customer of the bank and did not know which of the counter slips were withdrawal slips and which were deposit slips.

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According to his testimony, Officer Franck first observed appellant from about 25 feet away, as the latter was standing in line at a teller's window, holding a blue piece of paper which, because of its size, appearance, and color, Franck assumed to be a check. The officer's attention was drawn to appellant because "his pants were kind of shaggy"; "(h)e was dressed fairly modestly"; and, more generally, "(h)e didn't appear to be right inside the bank." Tr. 9-10. While Franck walked to the "bank book," which officers on bank detail are required to sign, and after he had written in the book, the officer continued to watch appellant.

When appellant got to the teller's window, he waved the blue piece of paper in the air and then presented it to the teller. Officer Franck observed "(t)he bank teller look( ) down at the slip of paper, turn( ) it around and look( ) at it and read it and immediately, within a matter of a second or two, push( ) it back toward" appellant. A brief conversation between appellant and the teller ensued, but the officer was able to overhear only two words, "bank official."

Appellant picked up the piece of paper, turned, and saw Officer Franck looking at him. After three to five seconds of eye contact, appellant avoided looking further at Franck and walked up to a bank official. Instead of showing the piece of paper to the official, appellant placed it inside a brown envelope he had been carrying in his hand, and put the envelope in his pocket. He spoke for "one or two seconds" to the official, Tr. 23, then turned and "started walking fast out of the bank, not (at) the same pace he had been moving," Tr. 12.

His interest aroused, Franck followed appellant out of the bank 1 and, having caught up with him on the sidewalk immediately outside, asked appellant, "Sir, may I talk to you a moment?" Tr. 13. When appellant responded "okay," the officer went to his scooter parked in front of the bank and took out a copy of police department form 76, used to record information about preliminary investigative inquiries. 2 Franck began to fill out the form, and asked appellant for his name. Appellant told the officer that his name was "William Witherspoon," and that he lived on Ontario Road, Northwest.

Officer Franck then asked appellant if he had any identification, but appellant responded that he did not. The officer testified that his suspicions were amplified by this development:

Right away it struck me funny. Why does a man go into a bank to cash a check without some sort of identification.

Tr. 14; see id. 36. When Franck asked whether appellant was sure he did not have any identification, appellant replied that all he had was a withdrawal slip, which he had intended to use to take money out of his savings account. The officer requested to see the slip, and appellant took the brown envelope out of his pocket and removed the blue slip of paper which the officer had previously believed to be a check. The blue slip was in fact a withdrawal slip, with the name "William Witherspoon" written on it, and accordingly the officer transcribed this name onto P.D. Form 76.

Officer Franck asked appellant for his address and phone number, but appellant said that he did not have a phone number. Franck then asked appellant why he did not have any identification when he attempted to withdraw money from his savings account, and according to Franck's testimony appellant gave the following answer:

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He said he went into (the) bank and made a mistake. He tried to get some money from his savings account, and he had the checking account number (marked on the withdrawal slip).

Tr. 14-15. The officer then "started asking questions," "but everything was funny." Tr. 15.

At this point, Franck addressed the following question to appellant:

Mr. Witherspoon, would you mind coming back inside the bank with me, and we will talk to the manager, and if everything is okay, you can go.

Tr. 15. Appellant answered "no," that he would not mind, which the officer apparently interpreted as consent to return to the bank. See Tr. 17. 3

Once inside the bank, Officer Franck and appellant approached the bank official whom appellant had addressed very briefly on the way out of the bank. Franck asked the official, a Mr. Stewart, what appellant had said as he walked out; and Stewart replied, according to Franck, that appellant had simply stated "I will see you later." Tr. 17. Franck then requested Stewart to confirm that a Mr. William Witherspoon had an account with the bank. When a telephone call yielded the response that there was no account in that name, Stewart asked appellant if he had a middle initial. Rather than answering immediately, appellant started snapping his fingers and "rung (sic ) his head," and "beads of perspiration came out all over his forehead." Tr. 18, 24.

After about 15 or 20 seconds, appellant said his middle initial was "M," and Mr. Stewart verified the existence of both a checking and savings account in the name of William M. Witherspoon. However, the address listed on the accounts was different from the one given by appellant outside the bank, and that date of birth on the bank's records did not match the date given by appellant in response to a question from Officer Franck. When the officer asked appellant how long the accounts had been open, appellant again started snapping his fingers, and responded "one year," but Mr. Stewart's information indicated that the accounts had in fact been open three-and-one-half years. Observing what appeared to be a wallet in appellant's inside coat pocket, Franck again asked appellant if he had any identification, but appellant stated that he did not.

After consulting by telephone with a detective from the Check and Fraud Section of the Metropolitan Police Department, Officer Franck placed appellant under arrest for attempted false pretenses, 22 D.C.Code §§ 103, 1301. Incident to that arrest, Franck seized the wallet and a brown envelope from appellant's coat pocket. Inside the wallet was a birth certificate in the name of Bobby Samuel Wylie; and inside the brown envelope was a bank statement in the name of William Witherspoon, listing the account number of a checking account, and showing a balance of $412. The blue withdrawal slip which appellant had given to Officer Franck was a savings account withdrawal slip, made out for $400, and inscribed with the checking account number displayed on Witherspoon's bank statement.

Later investigation revealed that the bank statement had been placed in the

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United States mail on February 9, 1976, the day before it was found in appellant's possession, and that Witherspoon's mail box had been broken into on February 10. On March 10, 1976, appellant was indicted for possession of stolen mail, 18 U.S.C. § 1708, and attempted false pretenses, 22 D.C.Code §§ 103, 1301. Defense counsel's motion to suppress the bank statement and brown envelope was denied by Judge Bryant on August 4, 1976, following the evidentiary hearing on the motion to suppress. A bench trial was held on September 9, 1976, and the bank statement and envelope were admitted into evidence over objection. Appellant was found guilty of both offenses charged, but the false pretenses count was subsequently dismissed with the consent of the Government. On October 27, 1976, the District Court sentenced appellant to six to thirty months imprisonment. This appeal followed.

II

Appellant concedes that probable cause for arrest existed following the investigation inside the bank, and that if the...

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