Cundiff v. U.S.

• Decision Date: 23 July 1974
• Docket Number: No. 74-1037,74-1037
• Parties: Anthony Chester CUNDIFF, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 188

501 F.2d 188

Anthony Chester CUNDIFF, Appellant, v. UNITED STATES of America, Appellee.

No. 74-1037.

United States Court of Appeals, Eighth Circuit.

Submitted June 12, 1974.

Decided July 23, 1974.

Josef V. Hobson, Fort Smith, Ark., for appellant.

James A. Gutensohn, Asst. U.S. Atty., Fort Smith, Ark., for appellee.

Before GIBSON, BRIGHT, and WEBSTER, Circuit Judges.

PER CURIAM.

Anthony Chester Cundiff appeals his jury conviction of bank robbery for which he was sentenced to 10 years imprisonment. He questions the validity of the search warrant used to secure evidence admitted against him at trial and claims error in the forms of verdict the The facts which led to defendant's arrest For the reasons hereafter expressed, we affirm the judgment of conviction.

I. The search Warrant

Defendant was arrested at the Sands Motel in Fort Smith, Arkansas, approximately 20 minutes after the robbery of the Merchants National Bank in Fort Smith. He makes no claim that his arrest was not based on probable cause. The facts which ultimately were presented and which ultimately were presented to the magistrate by affidavit of Detective Bob Hatfield of the Fort Smith Police Department to secure issuance of a search warrant are listed below.

The bank was robbed by a man described by the teller as a white male wearing a rust-colored jumpsuit, sunglasses and a handkerchief over his face, and carrying a black or dark blue pistol. After receiving the money from the teller, the robber left the bank on foot going towards Coleman Drug Store. Another eyewitness, Martine Belcher, saw a man in a rust-colored jumpsuit leave the area of the bank and go into the yard of a house behind the drug store. The man started running. As Belcher circled the drug store he saw a green car leaving the area but did not see the man running across Tilles Park as he had expected.

Two boys cutting grass in the park reported seeing a man in a rust-colored jumpsuit come through the yard behind Coleman Drug Store and enter a green Mercury automobile with a damaged rear quarter panel.

At approximately the time of the robbery, Jimmy McGee was in his front yard, approximately a block from the bank. He reported seeing a green 1972 or 1973 Mercury, with damage to the left rear quarter panel and the dustpan hanging down in the rear, at the intersection of 36th and Alabama, one block south of the bank. He said he saw the driver look toward the bank and then drive eastward on Alabama toward the area of Tilles Park.

Within 20 minutes of the robbery, Fort Smith police officers checking motels found a green 1973 Mercury Cougar with damage to the left rear quarter panel parked on the lot of the Sands Motel. They determined from the motel registration that the car's owner occupied Room 152. They proceeded to Room 152 and arrested the defendant and his co-defendant in this case. Upon checking the identification on their persons, it was found they had registered at the motel under assumed names. The above were the facts presented to the magistrate to support the issuance of a search warrant ¹ for Room 152 and the green Mercury Cougar. The co-defendant later pled guilty.

Defendant contends here that these facts, disclosed in the affidavit for search warrant executed by Detective Hatfield, failed to meet the requirements set out in Spinelli. ² More particularly he protests the 'failure' to set forth underlying information so that the magistrate could determine the credibility of the 'hearsay' information given by the informers. Defendant fails to note the important distinction between an informant who divulges evidence of a crime obtained from sources unknown to the affiant or magistrate and an individual who is an 'eyewitness' and only relates matters gathered from his own observation. As we stated in McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969):

The essence of reliability may be found in an informant's statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an 'eyewitness' to an actual crime perpetrated demonstrates sufficient reliability of the person.

The personal and recent knowledge of an unidentified informant may establish sufficient probable cause to support the issuance of a search warrant. United States v. Harris, 403 U.S....