US v. Pryor, Crim. No. 86-00058-B.

• Decision Date: 03 February 1987
• Docket Number: Crim. No. 86-00058-B.
• Citation: 652 F. Supp. 1353
• Parties: UNITED STATES of America v. Arthur Carey PRYOR, a/k/a Camden Peller, Defendant.
• Court: U.S. District Court — District of Maine

652 F. Supp. 1353

UNITED STATES of America v. Arthur Carey PRYOR, a/k/a Camden Peller, Defendant.

Crim. No. 86-00058-B.

United States District Court, D. Maine.

February 3, 1987.

COPYRIGHT MATERIAL OMITTED

Timothy Woodcock, Asst. U.S. Atty., Bangor, Me., for plaintiff.

Lewis Vafiades and Jeffrey Hjelm, Bangor, Me., for defendant.

MEMORANDUM AND ORDER

CYR, Chief Judge.

Defendant is charged with armed robbery of the Blue Hill branch of the Bar Harbor Banking and Trust Company the Bank, in violation of 18 U.S.C. § 2113(a) & (d). Defendant moves to suppress items seized in the course of a search of the room he rented in Castine, Maine, and items seized from a safe deposit box and hotel room in Cambridge, Massachusetts. After three days of hearings and further briefing by the parties, the court makes the following findings of fact and conclusions of law. See Fed.R.Crim.P. 12(e).

FACTS

On Friday, July 11, 1986, the Blue Hill branch of the Bar Harbor Banking and Trust Company was robbed. At about 2:30 p.m. on July 11, Patricia Curtis, manager of the Bank, entered her office where a man pointed a gun at her and told her: "There's going to be a robbery." Ms. Curtis did as the armed man instructed by asking two tellers to come into her office while Ms. Curtis went to the bank vault to remove money. Ms. Curtis returned with the bank bags filled with currency in denominations from $20 to $100. The armed man took the two bank bags and placed them inside a brown leather overnight bag. After warning the manager and tellers not to call anyone for 20 minutes, because he had people watching the bank and did not want anyone to get hurt, the armed man walked out of the bank with the money.

Witnesses described the armed man as a white male, about six feet tall and weighing approximately 200 pounds, clean shaven, with pale skin and a soft voice, and in his late twenties or early thirties. He was wearing blue jeans and dirty white sneakers or deck shoes, and he had what was described as an old bedspread, blanket or sheet draped over his shoulders ponchostyle. The bedspread is described, variously, as being light in color, purple or lavender, with a white swirl design running through it. On his head he wore a yellow or gold scarf which obscured his hair, and a large floppy straw hat. He wore a necklace with large gray beads, about the size of mothballs. In addition, the robber had red lipstick on his lips and white paste makeup on his face. Throughout the robbery he wore sunglasses with pink frames. Witnesses noted that his hands were smooth and his nails were bitten "to the quick."

The Federal Bureau of Investigation FBI and the Hancock County Sheriff's Department conducted a joint investigation of the robbery. On Tuesday, July 15, 1986, an informant told investigators that on the previous Friday, the day of the robbery, at 1:30 or 2:00 in the afternoon on two occasions she had seen an individual wearing a poncho, sunglasses and a straw hat driving a light blue station wagon in the village of Blue Hill. Also on July 15, Sheriff Clark of the Hancock County Sheriff's Department interviewed Nancy Carr. Ms. Carr is the owner of Dice's Head Lighthouse, which is located in nearby Castine. Ms. Carr told investigators that she had been renting a room in the Lighthouse to one Camden Peller since September 1985. Ms. Carr described Peller as being 32 years old, about six feet one inch tall, and weighing about 200 pounds. Ms. Carr stated that Peller had had a mustache, but that, when she saw him last on July 12, she did not remember seeing the mustache. Ms. Carr stated that Peller was "immaculate," that he wore white sneakers, and that he bit his fingernails. Ms. Carr recalled that when Peller moved into the Lighthouse he had with him a lavender "chenille" bedspread which was old and worn. Ms. Carr had seen the bedspread at different places in the Lighthouse and in Peller's car, which she described as a blue Chevrolet station wagon.

A portion of the interview with Ms. Carr was conducted at the Lighthouse. Ms. Carr explained that the Lighthouse is her home, that Peller had the exclusive use of one room at the Lighthouse, and that Peller shared common areas of the house, such as the living room and kitchen, with her, her son, and another individual who rented a room at the Lighthouse. While conducting the interview at the Lighthouse, Sheriff Clark observed a floppy straw hat hanging in the entryway to the kitchen. Ms. Carr stated that the hat usually was hung in that spot. Sheriff Clark then repeated the description of the necklace worn by the robber, and Ms. Carr obtained from her room a necklace matching that description. Ms. Carr stated that Peller had access to the room in which the necklace was kept.

Ms. Carr had last seen Peller on Saturday, July 12. Peller told her that he had hired a limousine to take him to Boston to do some shopping. Peller told Ms. Carr that a local service station was going to pick up his car for a complete overhaul, and left Ms. Carr $2,000 in $20 bills for her to cover expenses. Peller also left $420 for the rental of his room through September.

Following the interview, Sheriff Clark and Ms. Carr searched the Lighthouse, excluding defendant's room, for the lavender bedspread. An investigator from the Sheriff's Department located defendant's automobile at the service station, and looked through the car windows but did not see the bedspread.

Subsequently, FBI Special Agent James Sangillo applied to the United States Magistrate for a warrant to search defendant's room at the Lighthouse for the bedspread. In addition to stating the foregoing facts,¹ the affidavit submitted by Agent Sangillo requested permission to execute the search at night:

Your affiant requests authority to execute this warrant at any time day or night on the grounds that the bedroom of Camden Peller is known to be unoccupied at present and that your affiant wishes to execute this warrant before Peller returns to minimize risk to law enforcement officers and others.

Search Warrant on Written Affidavit, Government Exhibit No. 1, Attached Affidavit ¶ 33 hereinafter cited as Maine affidavit.

The Magistrate issued the warrant at 9:21 p.m. on July 15, 1986, and authorized a search of defendant's room at any time, night or day, prior to July 22, 1986. The search warrant described the item sought as "a lavender chenille bedspread usable as a poncho which is evidence of a crime of bank robbery...."

The warrant was executed at approximately 11:00 p.m. on July 15 by Agent Sangillo and five members of the Hancock County Sheriff's Department. The search party found the door to defendant's room secured with one or two padlocks, which Sheriff Clark cut with bolt cutters. Prior to the search, several photographs were taken of Peller's room. Agent Sangillo testified that there was no standard procedure with regard to photographing the scene of a search, but that, in this case, because the occupant of the room was not present Sangillo wanted to photograph the scene as it appeared prior to any search. Sangillo also instructed Sheriff Clark to photograph all evidence where it was found.

The defendant's exclusive living quarters at the Lighthouse consisted of one room located on the first floor. The room is rectangular, measuring 17 feet by 11 feet. There is only one entrance to the room. The entry door is located in a corner of the room and on its longest wall. Upon entering the room, there is a closet immediately to the left.

Most of the searching of the apartment was conducted by Chief Deputy Sheriff Dickson. After entering, turning on room lights and taking pictures, the officers scanned the room to see if the bedspread was readily apparent. As it was not, Deputy Dickson began a more methodical search, starting with the closet to the left of the entry door and going clockwise around the room. As the search of the closet is critical to defendant's motion to suppress, the court describes the closet in some detail.

The closet has a full-size door, which was closed but not locked. The closet is 45 inches wide, 21 inches deep and 108 inches high. The closet doorway is 27 inches wide, 80 inches high and is set slightly to the left² of the center of the closet. Thus, the closet itself extends 15 inches further right than the right edge of the closet door.

The closet shelf is set 76 inches above the closet floor and runs the full 45-inch width of the closet. The shelf is 11 inches deep and its back edge is contiguous with the back wall of the closet. A horizontal pipe, intended for use as a hanger bar, is located 76 inches above the closet floor and immediately in front of the front edge of the shelf. The distance from the back wall of the closet to the front of the hanger bar is 12¼ inches.

Five pipes run vertically through the closet. On the right side are two galvanized metal heating pipes, approximately 6 inches in diameter. The pipe nearest the back wall of the closet hereinafter referred to as the back pipe runs from the floor of the closet, through a hole in the shelf, to the closet ceiling. Measuring from the top side of the closet shelf, and from those parts of the back pipe which encroach most closely, the back pipe is 5½ inches from the right closet wall and 1¾ inches from the back closet wall. The back pipe does not run parallel to the closet walls, but angles away from the right closet wall as it ascends. At ceiling level, the back pipe is 9 inches from the right wall and 2½ inches from the back wall.

The second galvanized pipe on the right side of the closet hereinafter referred to as the front pipe does not pass through the closet shelf, but runs from the floor to the ceiling in front of the hanger bar. This front pipe is 2¾ inches from the hanger bar, 7 inches from the right closet wall, and 1 inch from the front wall of the closet. The other pipes, a drain pipe and hot and cold water pipes, are located on the left side of the...