Cochran v. United States

• Citation: 291 F.2d 633
• Decision Date: 07 August 1961
• Docket Number: No. 16686.,16686.
• Parties: James LeRoy COCHRAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

291 F.2d 633 (1961)

James LeRoy COCHRAN, Appellant, v. UNITED STATES of America, Appellee.

No. 16686.

United States Court of Appeals Eighth Circuit.

June 28, 1961.

Rehearing Denied August 7, 1961.

Norman S. London, St. Louis, Mo., for appellant.

Frederick H. Mayer, Asst. U. S. Atty., St. Louis, Mo., for appellee; D. Jeff Lance, U. S. Atty., St. Louis, Mo., on the brief.

Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

James LeRoy Cochran, appellant herein, was charged by indictment with armed robbery of the Roosevelt Federal Savings and Loan Association of St. Louis, Missouri. (18 U.S.C.A. § 2113) Upon being found guilty by a jury, he was sentenced to imprisonment for twenty years. Appellant's conviction was partially based on the use in evidence against him of a gun seized from the place of his arrest. Before trial, and pursuant to Rule 41(e), Federal Rules of Criminal Procedure, 18 U.S.C.A., appellant moved to suppress as evidence any and all items seized and secured from his person or from the place of his arrest, claiming that such items were the products of an illegal search and seizure without warrant, that there was no probable cause for the appellant's arrest or for the search and seizure and that the arrest, search and seizure violated the appellant's rights as contained in the Fourth and Fifth Amendments to the Constitution.

After hearing, the District Court overruled the motion to suppress and during the trial, over objection, received in evidence the gun referred to.

It is the appellant's contention that the police officers did not have "probable cause" to arrest him, that they had no warrant for arrest and no search warrant, and that hence the search and seizure of the gun, etc., was illegal and the denial of the motion to suppress error.

The evidence offered at the hearing on the motion to suppress is without substantial dispute. On May 27, 1960, the Roosevelt Federal Savings and Loan Association, an institution organized and operated under the laws of the United States, was held up by a lone gunman and robbed of $1,109 by placing in jeopardy the lives of employees therein.

Appellant was arrested on June 6, 1960. The apartment in which the arrest occurred was searched. The police officers making the arrest had no warrant therefor and no warrant for the search that followed. A gun, marked Exhibit No. 5, was found in the apartment and was subsequently identified by witnesses as being similar to one used by the robber. The police officers testified concerning the condition of the appellant at the time of his arrest, that is, that he was dressed in shorts and was concealing himself from the officers by hiding in a closet; that in the search of the apartment they found car keys which fit a Mercury automobile parked out in front.

The officers conceded that at the time of arrest they observed no crime being committed. They testified that they were acting upon information supplied by a confidential informant to the effect "That James LeRoy Cochran may be good for a hold-up of the Roosevelt Federal Savings and Loan." The informant also told them the approximate location of Cochran's residence and that he had a car of the type they were looking for. This confidential information was given to Detectives Kube and Lask several days prior to the actual arrest. Kube and Lask made no police report concerning the information. They conveyed the information to no one, although they made daily reports of their activities.

The Fourth Amendment to the Constitution of the United States provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The protection thereby afforded extends alike to all persons, the unjust as well as the just, and the guilty as well as the innocent. Its cloak is a protection from unreasonable searches and seizures and no arrest or seizure without a warrant is legal except on "probable cause". If probable cause existed, then the arrest and search of the premises incidental thereto were lawful. Under such circumstances a motion to suppress would have been properly denied. Henry v. United States, 1959, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; Draper v. United States, 1959, 358 U.S. 307, 310, 311, 79 S.Ct. 329, 3 L.Ed.2d 327, and cases therein cited.

What knowledge on the part of the arresting officer meets the test of probable cause has been the subject of many definitions. Stacey v. Emery, 1878, 97 U.S. 642, 645, 24 L.Ed. 1035:

"* * * If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been committed, it is sufficient. Whether the officer seized the occasion to do an act which would injure another, or whether he moved reluctantly, is quite immaterial.

"Mr. Justice Washington * * * in Munns v. Dupont 3 Wash.C.C. 31, 37, Fed.Cas.No.9,926, * * * defines probable cause in these words: `A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offence with which he is charged.\'

"Chief Justice Shaw defines it in similar language: `Such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty.\' Ulmer v. Leland, 1 Me. 135." (Emphasis supplied.)

Director General of Railroads v. Kastenbaum, 1923, 263 U.S. 25, 28, 44 S.Ct. 52, 53, 68 L.Ed. 146:

"* * * good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the Director General\'s agent, which in the judgment of the court would make his faith reasonable."

Of similar comport are the statements of Mr. Justice Douglas in the more recent case of Henry v. United States, 1959, 361 U.S. 98, 102, 80 S.Ct. 168, 171:

"Evidence required to establish guilt is not necessary. Brinegar v. United States, 338 U.S. 160 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307 79 S.Ct. 329, 3 L.Ed.2d 327. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed."

On the issue of probable cause, the government cites but one case as being analogous to that at bar, Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329. Therein, the Supreme Court held that the arresting officer had "probable cause" under the Fourth Amendment and "reasonable grounds" under 26 U.S.C. (Supp. V) § 7607, added by § 104(a) of the Narcotic Control Act of 1956, 70 Stat. 570. The following circumstances were established at the hearing on the motion to suppress: For about six months one Hereford had been engaged as a "special employee" of the Bureau of Narcotics and from time to time gave information to narcotic agent Marsh regarding violations of the narcotic laws. Hereford was paid small sums of money therefor and Marsh had always found the information given by Hereford to be accurate and reliable. On September 3, 1956, Hereford told Marsh that James Draper had taken up abode at a stated address in Denver and "was peddling narcotics to several addicts" in that city. Four days later Hereford told Marsh "that Draper had gone to Chicago the day before by train and that he was going to bring back three ounces of heroin and that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train." Hereford gave Marsh a detailed physical description of Draper and of the clothing he was wearing and said that he would be carrying "a tan zipper bag" and that he habitually "walked real fast". The Supreme Court, through Mr. Justice Whittaker, held, 358 U.S. at page 314, 79 S.Ct. at page 331:

"We believe that, under the facts and circumstances here, Marsh had probable cause and reasonable grounds to believe that petitioner was committing a violation of the laws of the United States relating to narcotic drugs at the time he arrested him. The arrest was therefore lawful, and the subsequent search and seizure, having been made incident

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