731 F.2d 1337 (8th Cir. 1984), 83-1290, United States v. Rose

Docket Nº:83-1290.
Citation:731 F.2d 1337
Party Name:UNITED STATES of America, Appellee, v. Jack ROSE, Appellant.
Case Date:April 02, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1337

731 F.2d 1337 (8th Cir. 1984)

UNITED STATES of America, Appellee,

v.

Jack ROSE, Appellant.

No. 83-1290.

United States Court of Appeals, Eighth Circuit

April 2, 1984

Submitted Nov. 17, 1983.

Rehearing Denied May 3, 1984.

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[Copyrighted Material Omitted]

Page 1339

Robert G. Ulrich, U.S. Atty., Kansas City, Mo., for appellee.

Willard B. Bunch, Campbell, Erickson, Cottingham, Morgan & Gibson, John Edward Cash, Kansas City, Mo., for appellant.

Before ROSS, ARNOLD, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

A jury found appellant Jack Rose guilty of armed robbery of the Kansas City Post

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Office Employees Credit Union in violation of 18 U.S.C. Sec. 2113(a) and (d). Rose was sentenced to twenty years in prison. On appeal, he seeks reversal of his conviction on several grounds. First, Rose contends that the district court erred in admitting evidence seized from his person subsequent to his arrest because the arrest was made without probable cause. Second, Rose argues that evidence seized from the trunk of the car he was riding in at the time of the arrest should have been suppressed because it was obtained pursuant to an invalid search warrant. Third, he argues that an admission allegedly made to two bondsmen who arrested him on an unrelated charge should have been suppressed because the bondsmen failed to give a Miranda warning or because of the coercive nature of his arrest and custody. 1 Fourth, Rose challenges the competency of evidence offered by the government to show that a shoeprint "lifted" from the credit union counter was made by a shoe seized from him. Fifth, Rose maintains that he was deprived of one of his ten peremptory strikes. Finally, Rose submits that the government failed to prove that he committed assault or placed another person's life in jeopardy as required by 18 U.S.C. Sec. 2113(d). We reject these contentions and affirm the conviction.

I. Facts

Detective Paul Ericsson of the Kansas City, Missouri Police Department was told by an informant that the Kansas City Post Office Employees Credit Union would be robbed on May 7, 1982. The informant had been present on one occasion when three black males, Jack Rose, Charles Rose, and Vernon Rose, were planning the robbery. The robbers would leave the scene of the robbery in a stolen car, drive to the Liberty Memorial Mall, abandon the stolen car, enter a yellow Camaro driven by a black female, and drive away from the mall. According to the informant, the yellow Camaro belonged to Jack Rose or his girlfriend. Detective Ericsson stated that he had maintained periodic contact with the informant over the previous two or three years, that the informant had provided him accurate information on eight to ten occasions, and that the information supplied by the informant had led to the arrest of three or four individuals for whom there were outstanding warrants.

Detective Ericsson relayed the informant's story to Sergeant James Kopp, white collar crime division, who, in turn, passed the information on to the robbery unit. The police conducted an independent investigation. They ascertained that Jack Rose had driven or had been a passenger in a yellow 1971 Camaro with license plates YPG-649. 2 Police also observed a yellow Camaro parked in front of Rose's residence on May 7. On May 10, after the May 7 robbery failed to occur, Ericsson again contacted the informant. The informant told him that the robbery was still going to occur but that the Roses were not sure when it would be. Ericsson believes this information was relayed to Sergeant Kopp.

On May 12, 1982, at approximately 10:55 a.m., three masked men entered the front door of the credit union. One of the men, gun in hand, ran toward the manager's office. When the gunman entered the office, the manager, Donald Brooks, was talking to a customer, Hiawatha McCormick. The gunman pushed Brooks to the floor. He then told McCormick and Brooks' secretary, Georgia Crow, to lie on the floor. The gunman crouched beside Crow's desk and began counting aloud.

The other two men ran toward a customer service counter located across the room from the entrance. They jumped onto and over the counter. One robber emptied out

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a trash can and dumped money from teller Cindy Green's cash drawer into it. The other cash drawers were locked. Although one of the robbers asked where the rest of the money was located, none of the credit union employees answered. The gunman shouted that it was time to go. The three left through the front door.

Shortly after the robbery, a white Ford LTD was found a few blocks from the Liberty Memorial Mall and the credit union by a police officer who was canvassing the neighborhood for witnesses. The car's motor was running and its windshield wipers were operating. The ignition switch was missing; the car had been hotwired. Patricia Gutierrez, a credit union employee, subsequently identified the white Ford LTD as the car that she saw leaving the parking lot immediately after the robbery. Police later ascertained that the car had been stolen prior to May 12, 1982.

The Ford subsequently was searched at the police department service station after the owner's permission had been obtained. Police discovered various items, including two hooded jackets, two pairs of jogging pants, and a bluejean jumpsuit. Credit union employees had told police that the gunman was wearing a gray sweatsuit and a gray hooded jacket. Another employee described one of the robbers as wearing a loosefitting jacket and pants made of bluejean material.

During the investigation immediately following the robbery, the police observed footprints on the service counter of the credit union. The police dusted the shoe sole impressions with a magnetic brush similar to a fingerprint brush. The prints were recovered by placing fingerprint tape over the impressions, lifting them from the counter and placing them on a card. The police also learned that the stolen money included "bait money." The credit union had a list of the serial numbers of five of the one dollar bills which were in the stolen money.

About an hour after the robbery, Kansas City, Missouri Police Officers Meadows and Ortega, who had heard radio communications about the robbery, the abandoned white Ford, and a possible switch to a yellow Camaro driven by a black female, stopped a yellow Camaro approximately one and a half miles from the credit union. Kathy Davis, a black female, was driving. Jack Rose and Vernon Rose were passengers. Because the radio communications had mentioned that the robbers were armed, the officers "patted down" these individuals after asking them to get out of the car.

Meanwhile, Officers Chrisman and Truman, who were maintaining surveillance of Jack Rose's residence, learned that the Camaro had been stopped and immediately drove to the scene. Arriving within minutes of the stop, they informed Meadows and Ortega that Jack Rose was the name of one of the suspects. The three occupants of the Camaro were placed under arrest and immediately advised of their Miranda rights. Following the arrest, Jack Rose and Vernon Rose were searched. Police also searched a woman's purse found in the Camaro. They discovered a roll of money totaling $125.00 in Jack Rose's pocket, $570.00 in Vernon Rose's pocket, and $310.00 in the purse. The three occupants of the Camaro then were transported to the police station. Detective Steve Barfield, who noticed that the pattern on the sole of Jack Rose's shoes was similar to the prints recovered from the service counter, took Rose's shoes and gave them to the evidence technician.

The yellow Camaro was searched on May 18, 1982, pursuant to a search warrant obtained from a state associate circuit judge. The trunk contained a dent puller, a tan jacket, and a pair of tan gloves. There was over $1,090.00 in cash in the tan jacket including the five dollars of "bait money." Trial testimony revealed that dent pullers can be used to remove ignition locks from a car's steering column so that it can be stolen.

II. Issues

  1. The Arrest and Search of Rose.

    Rose contends that the officers did not have probable cause to arrest the

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    occupants of the Camaro. In appropriate circumstances, law enforcement officers may approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to arrest the person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) [hereinafter Adams]; Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) [hereinafter Terry]. A stop is permissible only when officers are aware of facts which, taken together with rational inferences from these facts, reasonably warrant the suspicion that the person stopped has been, is, or is about to be engaged in criminal activity. E.g., United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). In addition, officers who are entitled to make a forcible stop may conduct a limited weapons search for the purpose of protecting themselves. Terry, 392 U.S. at 24, 88 S.Ct. at 1881.

    The record supports the district court's conclusion that Officers Meadows and Ortega had sufficient reasonable, articulable suspicion to justify the stop of the Camaro. See United States v. Pajari, 715 F.2d 1378 (8th Cir.1983). They had heard radio communications that the credit union had been robbed by three masked black males who were armed, that a white Ford had been discovered abandoned near the credit union, and that there would be a possible switch to a yellow Camaro driven by a black female. Within an hour of the robbery, Officers Meadows and Ortega spotted a yellow Camaro driven by a black female and occupied by two black males. They stopped the car about one and a half miles from the credit union. We believe that the Terry stop and weapons "pat down" were well justified in...

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