U.S. v. Preston, 78-5280

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation608 F.2d 626
Docket NumberNo. 78-5280,78-5280
Parties5 Fed. R. Evid. Serv. 651 UNITED STATES of America, Plaintiff-Appellee, v. Albert Solomon PRESTON, Jr., Defendant-Appellant.
Decision Date20 December 1979

Guy J. Notte, Lithonia, Ga. (Court-appointed), for defendant-appellant.

William G. Boyd, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before COLEMAN, Chief Judge, and BROWN and TJOFLAT, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case presents yet another chapter in the continuing story of the $184,000 armed bank robbery of the First National Bank and Trust Company (Cherokee Branch), a federally insured institution located in Macon, Georgia. 1 Appellant Albert S. Preston, Jr., was indicted on three counts of bank robbery, 18 U.S.C.A. §§ 2113(a), (b), (d), and 2, and one count of conspiracy, Id. § 371. In the first of two trials, the Trial Court declared a mistrial since the jury could not reach a verdict after over 13 hours of deliberation. In the second trial, Preston was convicted on all four counts. He received a 25 year prison sentence on the substantive counts and a consecutive five year probationary sentence on the conspiracy count.

Preston now appeals his conviction on six separate grounds: (1) lack of probable cause for arrest and improper admission of inculpatory statements tainted by the illegal arrest; (2) refusal of the Trial Court to permit an F.B.I. agent to be called as a hostile witness and questioned about fingerprint and other tests performed by the F.B.I.; (3) prejudicial remarks by the Trial Court; (4) improper limitation on the scope of cross-examination of two Government witnesses; (5) withholding of exculpatory evidence by the prosecution; and (6) admission of Preston's former bank robbery conviction in violation of Rule 609(a)(1) of the Federal Rules of Evidence. We reject the first five claims and conditionally affirm the conviction subject to further determination by the Trial Court as to the sixth claim, the admissibility of Preston's prior bank robbery conviction.

Probable Cause Or Cause For Appeal?

Preston argues that the Macon police lacked probable cause to arrest him and that any inculpatory statements made by him were tainted by this illegal arrest and should not have been admitted into evidence. As we discuss in detail below, Preston was taken from a home located near the robbery to the First National Bank for a lineup. After the lineup, he was placed under arrest and was taken to police headquarters.

At the police headquarters, Preston allegedly made a variety of inculpatory statements. Special F.B.I. Agent Vasquez testified at length during the second trial regarding Preston's statements at the police station. 2 A brief account of Vasquez's testimony follows.

Vasquez testified that Preston, after receiving his Miranda warnings, revealed that on the night prior to the robbery his friend David McGee and two other men visited the home of Preston's grandmother, where Preston had arrived earlier that day. At that time Preston was asked to be the fourth participant in a robbery to be carried out the following day. Preston also told Vasquez the details of what transpired the next day. At about eight thirty in the morning, McGee and the two other men picked up Preston. The four then went to a house located on Roy and Courtland Streets to discuss final details before proceeding to the First National Bank. Preston, who was carrying a gun, went to the back door of the bank with one of the men and McGee went to the front door with the other one. Preston told Vasquez that all four of the robbers were wearing ski or stocking masks. Preston also stated that one of the other three (he thought McGee) went around to the various tellers' cages collecting money. The four then ran from the bank through some backyards and arrived at 2651 Roy Street. David McGee soon left the Roy Street house and Preston followed him. They both arrived at the McGee home. 3

Analysis of Preston's challenge to the admission of inculpatory statements requires a two-step determination. We must first decide whether probable cause existed for Preston's arrest. If probable cause did not exist, we must then decide whether, in spite of the illegal arrest, the inculpatory statements "were obtained by exploitation of the illegality of his arrest" or instead "were of sufficient free will as to purge the primary taint of the unlawful arrest." Brown v. Illinois, 1975, 422 U.S. 590, 600, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416, 425. See also Dunaway v. New York, 1979, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824.

We first examine the issue of probable cause. The following facts were developed by the first Trial Court on appellant's pretrial motion to suppress inculpatory statements for lack of probable cause to arrest. On December 15, 1977, at 9:48 a.m., Captain Robert Freeman of the Macon Police Department learned over police radio that the Cherokee Branch of the First National Bank and Trust Company had just been held up. According to the police broadcast, the robbery was carried out by four black men in their early twenties wearing blue jackets and stocking masks.

At about 10:25 a.m., Freeman learned through a second police broadcast that several items believed to be connected to the robbery, including money and two windbreaker jackets, were found about three blocks from the bank on Courtland Street. After first driving to the location of these items, Freeman proceeded in the probable direction of the robbers. He learned from another officer that witnesses had seen two black males running between two houses located on Roy and Courtland Streets. Behind these houses were footprints leading to a home across the street from the home of Katie McGee. Since Freeman knew Mrs. McGee personally, he decided to obtain her assistance in talking with her neighbor across the street.

Upon entering the McGee home, Captain Freeman saw appellant, a black male in his early twenties, sitting in the den. David McGee, Katie McGee's son, was also at the McGee home. Captain Freeman announced that he was looking for the robbers of the First National Bank and Trust Company. Katie McGee took Freeman across the street but no information was obtained from the neighbor. Freeman did, however, question Katie McGee, and learned that Mrs. McGee did not know Preston by name, that he was a friend of her son's, and that Preston had arrived at the McGee home only ten or fifteen minutes before Freeman.

When Freeman returned to the McGee house with Mrs. McGee, he noticed that appellant had changed his hair style from braided to unbraided. When questioned by Freeman, appellant stated that he lived in Atlanta, Georgia. Freeman suggested that appellant go outside and talk to Detective Davis. In response to Davis's questions, Preston stated that he lived in Macon, worked in Atlanta, but that he commuted home to Macon only on weekends. Yet appellant was then in Macon on a Thursday.

While Davis was questioning appellant, Freeman learned from Mrs. McGee that Preston was wearing a black knit cap, a T-shirt, and jeans when he arrived at the McGee home. Freeman learned from David McGee that appellant had arrived with another black male, who did not enter the McGee home.

Appellant then accompanied the officers to the First National Bank for questioning and identification. The Trial Court specifically found that Preston consented to accompany the officers to the bank and that he was at that time not under arrest. 4

On the way to the bank, Preston revealed that he had robbed a bank in 1971 and was currently on probation after serving seven years in prison. He also appeared confused when asked how he had arrived in Macon, first stating that he drove, then stating that he took the bus. He also stated that he had walked to the McGee home on what the Trial Court found not without support in the record to be a rather chilly day.

After conducting an inconclusive lineup at the bank, Macon Police Sergeant Hernandez put Preston in his car. The Trial Court found, and we agree, that at this point Preston was under arrest, since his freedom to walk away was restrained. See United States v. Brunson, 5 Cir., 1977, 549 F.2d 348, 357, Cert. denied, 1978, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107. The Trial Court concluded, based on the foregoing facts, that at the time of arrest, the arresting officer had probable cause.

Probable cause to arrest exists "where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Draper v. United States, 1964, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332, quoting Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555. Although more than mere "reasonable suspicion" is required, "the arresting officer need not have in hand evidence sufficient to convict." United States v. Rieves, 5 Cir., 1978, 584 F.2d 740, 745. In determining probable cause, "we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 1949, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890.

We conclude that, under the applicable legal standards, the Trial Court had sufficient basis for finding that probable cause existed at the time of arrest, 5 i. e., after the lineup at the bank. In his thorough memorandum opinion, the Trial Judge analyzed the facts in the hands of the arresting officer as follows:

(T)he location of the McGee house was consistent with the hot trail left by two running men soon after the robbery. Preston arrived at the house...

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