Chapman v. United States

Decision Date29 June 1965
Docket NumberNo. 19660.,19660.
Citation346 F.2d 383
PartiesBetty Jane CHAPMAN, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard J. Cantrell, Levy, DeRoy, Geffner, Koszdin & Glow, Long Beach, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Sec., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Sec., Bert S. Pines, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and POWELL, District Judge.

BARNES, Circuit Judge.

Appellant was indicted and convicted by a jury of violating 18 U.S.C. § 2113(c). Section 2113(c) of Title 18, United States Code, reads, insofar as the indictment here involved is concerned, as follows:

"Whoever receives, possesses, conceals, * * * any property * * or other thing of value knowing the same to have been taken from a bank, * * * in violation of sub-section (b) of this section shall be subject to * * * punishment * * *."

Section 2113(b), Title 18, United States Code, reads in pertinent part:

"Whoever takes and carries away, with intent to steal or purloin, any property * * * or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, * * * shall be punished * * *."

The indictment charged that appellant "received, possessed and concealed" certain personal property, "stolen from the People's Bank * * * knowing the same to have been stolen." The "property" was alleged to be of "a value of more than $100.00."

The "property" involved was all found by police in appellant's residence on August 21, 1963. Appellant, a former escrow clerk (or "escrow officer") of the bank, had voluntarily terminated her employment at the bank March 21, 1963, some five months prior to the discovery by the police of the "property," but had "balked" at returning the key permitting entrance to the bank premises. (Exs. A and B.) Twice prior to Friday, August 16, 1963, various escrow papers or files had disappeared from the bank. Thinking that they might have been mislaid or misfiled, bank officials took no action. Over the weekend of August 16th to August 19th, 1963, several other papers disappeared, including reference or form books or specimen forms belonging to the new escrow clerk, Miss Bernice Hall, and left by her on the bank premises (Exs. 2, 3, 4, 5 and 6), lists of indexes of escrows (Gov. Exs. 1 and 7) which indexes were owned by the bank, and actual escrow files themselves (Exs. 8-12 and 14-19) containing original and copies of notes, receipts, instructions, ledger sheets, Corporation Commission orders and permits, etc.

When this large volume of documents disappeared, the bank called in law enforcement agencies, and F.B.I. Investigator Gibler and Sergeant Lance of the Los Angeles Police Department assumed supervision of the investigation. As a former employee, appellant became subject to suspicion, and the two officers on August 21, 1963 went to the appellant's home shortly after noon.

After the officers rang the doorbell and waited fifteen minutes, the bell was answered by a young lady who announced that Mrs. Chapman was out shopping. (She identified herself as "just a neighbor.") Noting an automobile in the driveway, the officers asked the young lady who owned the auto. She first said it was hers, and later said it was Mrs. Chapman's. The officers asked if they could await Mrs. Chapman's return in the house, and permission was refused. (It was later ascertained this "neighbor" was appellant's daughter.)

The officers then left, and Investigator Gibler took up a point of observation where he could watch anyone entering or leaving the house, while Sergeant Lance left to check on the ownership of the auto. Lance returned with a third man, Officer Jones, in about thirty minutes. During this time, Gibler had seen no one enter or leave the house. The officers again rang the doorbell and the appellant answered. The officers identified themselves, stated they were investigating the loss or theft of papers from the People's Bank, and asked to enter and talk to her. She consented, and the four persons entered the living room.

While Officer Gibler was outside watching the house, he had noticed smoke and heat waves coming out of the chimney located in appellant's residence. Because the date was August and the place Southern California, his curiosity had been aroused. Immediately upon entry to the living room, he looked at its fireplace, and saw "a large pile of charred paper." He asked appellant if she had been burning something, and she said she had. He asked her what. She replied some old newspapers. Gibler took two or three steps to the fireplace and told appellant the shape of the ashes did not look like newspapers had been burned. The appellant offered no explanation. Gibler then told appellant why the officers were there, that she need make no statement, and that she was entitled to an attorney.

The entire floor of the living room was covered with papers, "piled and strewed over the entire floor." Mrs. Chapman explained she was cleaning the house. From their standing position the officers could see at least some of the papers on the floor were from the People's Bank, and from its escrow department. At least one of the papers bore a date subsequent to that on which appellant had left the bank. The officers asked Mrs. Chapman what the papers were, and she went through a pile, explaining them. Sergeant Lance mentioned he had seen a box of something in the car outside, and asked Mrs. Chapman what was in the box. She said "Well, why don't you bring it in and we will see." As he brought it in, one of the other officers picked up from the floor one of the papers which on its face showed it was from the People's Bank, Escrow Department, and that it bore a date subsequent to Mrs. Chapman's departure from her employment there. When appellant was asked about it and where it came from, "She answered she didn't know, or she couldn't explain it, or something of that nature."

Sergeant Lance was then satisfied he had probable cause to arrest the appellant, and did so. Gibler then stayed with Mrs. Chapman in the house for two hours, and the two police officers searched the house.

We note here that before going to question the appellant or meeting Lance, agent Gibler had obtained certain information from the bank officers.1

We have gone into some detail describing the events leading up to the appellant's arrest, because one of the alleged grounds of error on this appeal is the correctness of the district court's denial of the motion to suppress evidence.

Admittedly, up to the time that the officers, voluntarily admitted to appellant's premises, saw the documents on the floor of her home which had been taken from the bank after her termination of employment, they had suspicions only, and no sufficient evidence to arrest the appellant, or to obtain a warrant to search her premises. Their reception at the appellant's home, the untruths told by the daughter, the observation of what was in the fireplace and on the floor, together with appellant's inability or refusal to explain her possession of the documents reportedly missing or stolen gave the officers probable cause for appellant's arrest.

A search and seizure incidental to a lawful arrest, without a warrant for arrest, is lawful if there exists probable cause for the arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed. 2d 327 (1959).

Appellant, in oral argument, equates the two or three steps taken by an officer to the fireplace to "a search." We do not. It is not a search for an officer to observe (once lawfully near or on and within premises) that which is clearly and plainly to be seen, even if he uses searchlights or field glasses. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927).

Even if the objects clearly visible in the room were deemed to be exposed to a "search" by the officers' eyes, the appellant consented to such a "search." It is clear that one may waive his rights under the Fourth Amendment and consent to a search. United States v. Page, 302 F.2d 81 (9th Cir. 1962).

We come to these conclusions entirely apart from the "exceptional circumstances" theory — the possible imminent destruction of evidence.

Our views dispose of appellant's alleged errors one and two.

The third error alleged is that the bank did not own Exhibits 2 to 6, but that Miss Hall did, and hence they could not have been taken from the bank in violation of 18 U.S.C. § 2113(c). If the jury, therefore, relied on the value of the papers, etc. in coming to its specific finding on value, the conviction was unlawful.

That they did not belong, and had never "belonged" to the bank, as appellant urges, is immaterial. This property, including Miss Hall's personal documents, were, while owned by her and used by her in the performance of her duties at the bank and left there when she left for the day (and even while she was there during the day), "within the care, custody or control of the bank," and thus within the statute here involved.

The two cases cited by appellant, Lubin v. United States, 313 F.2d 419 (9th Cir. 1963), and White v. United States, 66 App.D.C. 102, 85 F.2d 268 (1936), have no application here. The former involved a theft in which nothing was taken from a bank. Money was taken from a private truck, The Armored Transport of Los Angeles. We held this was a taking punishable by state law and not within § 2113(c) and (b). Armored Transport had signed a note before it received the money from the bank which money it proposed to deliver to check cashing companies. It was clear that title to the money taken had passed to Armored, and it had sole possession thereof. The money so stolen was not in the "care, custody or control" of the bank.

The second case cited held that money stolen...

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