Churder v. United States

• Citation: 387 F.2d 825
• Decision Date: 09 January 1968
• Docket Number: No. 18740.,18740.
• Parties: James Corbett CHURDER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

387 F.2d 825 (1968)

James Corbett CHURDER, Appellant, v. UNITED STATES of America, Appellee.

No. 18740.

United States Court of Appeals Eighth Circuit.

January 9, 1968.

COPYRIGHT MATERIAL OMITTED

Robert J. O'Hanlon, St. Louis, Mo., for appellant and filed brief.

Harold F. Fullwood, Asst. U. S. Atty., St. Louis, Mo., for appellee, Veryl L. Riddle, U. S. Atty., on the brief.

Before VOGEL, Chief Judge, and MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

James Corbett Churder, age 36, after a plea of not guilty, was convicted by a jury in January 1967 on a one-count indictment charging him with violating 18 U.S.C. § 641.¹ Specifically, the charge was that he concealed and retained 2194, more or less, stolen United States postal money orders and various money order equipment, therein described, all the property of the United States and of a value in excess of $100, with intent to convert the same to his own use and gain and then knowing the items to have been stolen. Chief Judge Harper imposed a sentence of 8 years. Churder appeals.

The defense asserts that the trial court erred (1) in failing to sustain the defendant's motion to suppress evidence obtained as a result of a search and seizure following his arrest and in admitting into evidence items so seized, and (2), because of failure of proof as to value, in overruling the defense motion for acquittal and in imposing a sentence of a length beyond that allowed by § 641.

There is no real dispute as to the facts. Churder was arrested in the early afternoon of Sunday, November 20, 1966. Postal Inspector Thorn, in a helicopter, was following Churder's car as the latter drove south on Kingshighway in Saint Louis. In the 3200 block south Churder parked on the shoulder of the road. At Thorn's direction other inspectors drove up and arrested the defendant as he emerged from the automobile. The officers searched him, located the key to the car's trunk in one of his shoes, opened the trunk and found there the stolen articles which are the subject of the indictment. The inspectors possessed no arrest or search warrant.

Prior to trial the defense moved, under Rule 41(e), Fed.R.Crim.P., to suppress as evidence all items taken by the search and seizure. A hearing on this motion was held and evidence was presented on the issue of probable cause. Inspector Thorn, called by the defense, testified that on the morning of November 20 he was in his helicopter and first observed Churder when he was walking in the parking lot at the King Brothers Motel; that he saw him enter his car; and that he did not see Churder then do anything that constituted a violation of law. On cross-examination by the government Thorn stated that at the time he was in communication with other postal inspectors by radio; that he was observing the motel lot because he "had information that Mr. Churder might have United States postal money orders and other related money order equipment"; that "he had been making investigations on these and other money orders almost on a continuing basis for at least two months"; that "I * * * first received information back in September from a confidential source and I began an investigation at that time"; that the investigation was reasonable in comparison with the information received; that as a result of the investigation he would say that the information received was reliable; that while he was in the helicopter on November 20 he conversed by radio with a man identified on redirect as the second informer who had Churder under observation and who then reported that Churder "did have in his possession United States postal money orders and related equipment"; that he knew these items were government property; that he had knowledge of recent post office burglaries at five named Missouri points, of attempted burglaries at two other named Missouri points, and of two burglaries "over in Illinois"; that there were close to 2200 money orders and other items missing in the five burglaries; and that he conveyed this information to the men who were working with him.

On redirect Inspector Thorn stated that his informer told him that Churder back in September had postal money orders. A question as to the identity of that informer was objected to and this objection was sustained. Thorn had never used that informer before September. The informer did not tell him where the defendant kept the money orders or where he obtained them or where they could be found. Another informer also told him that Churder would have money orders. He talked with that informer at the King Brothers Motel when the informer was equipped with a walkie-talkie. This second informer had given Thorn information before but he had never used him to make an arrest. Thorn had found this informer to be reliable. The trunk was opened when the automobile was on Kingshighway and was photographed but "to keep from attracting an undue crowd on a Sunday afternoon" the car was moved to the post office garage and the material was then removed from it.

The defense called Postal Inspector Johnson. He testified that he arrested Churder on November 20 and that he had been told by Thorn that Churder was transporting stolen money orders. On cross-examination he testified that 15 seconds elapsed between the arrest and the search. Inspector Nidiffer, also called by the defense, testified that on that morning he first observed the defendant on the motel lot walking with another person. On cross he said that the arrest and search were contemporaneous.

At the trial itself the same testimony was forthcoming plus the fixing of the five Missouri burglaries in August, September and October 1966.

Churder took the stand and was the only witness for the defense. He testified: He had been a bricklayer for 15 years but also, for about two and a half years, worked as a doorman and maitre d' at the Gilded Cage in Saint Louis. In November 1966 he received a call from Leonard Aron² and met Aron at his coin shop on Manchester Avenue. After that meeting Churder called a private detective, John Murphy, whom he had known. "I told him that I thought I had something for him on money orders and counterfeit money". He also saw a man named Bayless who came to the club. Bayless gave the defendant one money order which the defendant showed to Aron. Aron told the defendant that "he had a buyer in Minneapolis and one in Kansas City". A man named George Matsik came to the defendant's apartment on the morning of November 20th. He said he was sent by Bayless "and he had a box to put in my car". The box was a suitcase. It was placed in the trunk of the automobile. Having been instructed by Aron to meet him at the King Brothers Motel, the defendant drove there. Aron arrived. They talked. Aron said he wanted to see the suitcase. They drove off together. The defendant showed the suitcase to him somewhere on Fee Fee Road. Aron was "going to buy these from" the defendant. The defendant left Aron and started home. He drove to the Thrift Hardware Store on South Kingshighway where he was to meet Matsik and Bayless and transfer the box to them. When he stepped out of his car he was placed under arrest.

Churder further testified that the arresting officers asked whether he knew the money orders were stolen and that he said, "Yes, I did". When the officers asked why he had the money orders he explained, "I was to meet this Leonard Aron and in meeting him I was to make a sale through him to a group out of Kansas City or Minneapolis". Churder called Murphy from their office. Churder also testified that he had never been convicted of a crime. On cross-examination the defendant stated that he had not bothered to look up the postal inspectors although he knew that this type of offense was within the province of their duties.

Churder's defense, therefore, was the absence of the intent required by the statute.

This case, as do so many others, reeks of guilt and contrived excuse. But guilt or innocence, of course, is not among the issues before us. We pass on to those issues.

A. The search and seizure. The defense breaks this down into what it describes as lack of probable cause, the existence of sufficient time to obtain an arrest warrant, non-disclosure of the identity of the two informers, and the improper search of the automobile.

1. Probable cause. As to this the defense stresses (a) the absence of arrest and search warrants; (b) that Thorn, on the day of the arrest, observed nothing from his helicopter except innocent acts; (c) that the first informer was only said to be reliable and the foundation for that reliability was never demonstrated; (d) that the second informer similarly was only said to be reliable and had never been used for an arrest; (e) the silence of the record as to whether the informers were paid or were witnesses to the crime or were accomplices; (f) the nonrevelation of the underlying circumstances from which the second informer concluded that Churder had money orders in his possession; (g) that the arresting officers did not see any stolen property before the arrest or hear any conversation between Churder and anyone else; and (h) the absence of evidence of their prior personal knowledge of the defendant. All this, it is said, does not add up to probable cause.

These search and seizure cases are not the easiest to resolve. In Spinelli v. United States, 382 F.2d 871 (8 Cir. en banc 1967), petition for certiorari pending, we considered the issue of probable cause for the issuance of a search warrant. Judge Gibson, speaking for the majority, observed, p. 881, "Probable cause is more than suspicion, but it is far less than the evidence sufficient to justify the conviction", and went on to say that informer statements may serve as the basis for probable cause if they are reasonably corroborated by other matters brought to the attention of the magistrate. We noted, in particular, McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct....