Davis v. United States

• Decision Date: 14 April 1969
• Docket Number: No. 26202.,26202.
• Parties: Clifford H. DAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.2d 1095 (1969)

Clifford H. DAVIS, Appellant, v. UNITED STATES of America, Appellee.

No. 26202.

United States Court of Appeals Fifth Circuit.

April 14, 1969.

Paul M. Moore, Calhoun City, Miss. (court-appointed), for appellant.

H. M. Ray, U. S. Atty., Roger M. Flynt, Jr., Asst. U. S. Atty., Oxford, Miss., for appellee.

Before COLEMAN and GODBOLD, Circuit Judges, and SCOTT, District Judge.

COLEMAN, Circuit Judge:

The indictment charged that on November 7, 1967, this appellant and two others who were not tried with him, aided and abetted by each other, did enter a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, with intent to commit the larceny of said funds, in violation of §§ 2 and 2113(a), Title 18, United States Code. He was found guilty by a jury and sentenced to a term of fourteen years. He appeals and we affirm.

The bank was situated in the village of Hickory Flat, Mississippi, population 500, located on U. S. Highway 78, fifty-six miles southeast of Memphis. A listening device had been installed in the bank to aid in the apprehension of burglars. A transmitter was attached to a telephone and connected by wire to a loudspeaker in the bedroom of a deputy sheriff, who lived about five hundred feet away. The device was turned on when the bank was closed for the day and turned off when open for business.

About four o'clock of a cold, frosty morning, and for the first time since the system had been installed, noises from the loudspeaker awoke the deputy's wife, who then awakened her husband. In a hearing out of the presence of the jury, the deputy testified that he heard voices and noises coming over the loudspeaker. He heard hammering and hissing such as ordinarily emanates from acetylene torches. There were at least two human voices. One said, "Cut the torch off". Another said, "Be easy with the door". There were sounds of objects being dragged across the floor.

In this state of affairs, at that time of night, in that locality, the deputy did not have to consult a manual or seek the advice of the United States Attorney to believe, with all reason, that a felony was in commission — that undoubtedly a bank burglary was in progress.

He raised the hue and cry — electronically — by telephoning the nearest police department, in Holly Springs, telling the night operator what he had heard and requesting that the resident investigator of the state highway patrol be notified. Upon receiving this message the investigator telephoned J. M. Ash, the Sheriff of Marshall County, passing on the information thus received. The burglary was taking place in Benton County, at a point about seven miles from the Marshall County line, but on his way to the locus criminis the investigator picked up Sheriff Ash. While thus enroute these officers overheard other information being broadcast over the highway patrol radio.¹

In the meantime, the deputy approached the bank. He saw a van truck parked nearby and overheard footsteps in the gravel, going to and fro between bank and truck.

Shortly afterward, a police car from New Albany drove up, turned around, and left. It was thought that this would flush the burglars so the patrol investigator drove up to the bank, siren blowing, and shouted by means of a loudspeaker for the occupants to come out and surrender.

The circumstances of the Davis arrest may best be stated in the words of Sheriff Ash:

"I got out almost in front of Farr Motor Company,² it was at the north-west corner of Farr Motor Company on 78 Highway, I went up the edge of 78 Highway towards the northeast corner of Farr Motor Company, and I saw two people between Farr Motor Company and a truck and trailer that was parked there. At the time I saw them Inspector Warren turned the siren on the car that I\'d got out of, and these two people had something in their hands and they dropped it between the truck and Farr Motor Company and started running north across 78 Highway. Mr. Pegram co-indictee went to my left, Mr. Davis started to my right. I hollered at both of them to stop. Pegram continued to go on across the highway and I ran up towards the front of Farr Motor Company in front of Davis and got him stopped and put him under arrest.

"He was dressed in blue denim pants, a brown plaid shirt, a blue denim jacket and a kind of a pulled-down cap and black gloves, and they were all wet on a cold, frosty morning.

"Q. What was the condition of the bank at the time you went in it?

"A. It was real smoky, water all over the floor. There was a hose that had been, I suppose, pushed in from the outside, and the door of the vault had a big hole cut in the lower part of it. Inside the vault the locked boxes, a number of them, had been opened and the balance of them either shaved or scrubbed off real clean. There was an acetylene or oxygen tank and cutting tools on the inside of the bank." Transcript 168, 169

On cross-examination, Transcript 180, 181.

"Q. Tell us, Mr. Ash, please exactly what you told Mr. Davis when you put him under arrest.

"A. I hollered at the two of them and told them that they was under arrest. I told Mr. Davis several times that he was under arrest, to stop. He made several attempts to get away. One particular time was between Farr Motor Company and a little building of some type that was sitting there. A number of times I told him that he was under arrest.

"Q. Did that constitute the entire language that\'s what I told him, that he was under arrest?

"A. I don\'t recall just the exact words but that\'s what I told him, that he was under arrest.

"Q. Did you inform him for what crime or what purpose you were arresting him?

"A. For bank burglary, yes, sir.

"Q. You told him that on that date?

"A. Yes, sir.

"Q. At that time that you arrested him and caused him to lie down there on the ground had you any information, knowledge to yourself, that he was a participant?

"A. Yes, sir, I saw Mr. Davis and Mr. Pegram by the side of the truck, they both dropped something there by the side of the truck and they started running, I had been informed by two or three different ways that there was a bank burglary going on there —."

"Q. Did you have an occasion to examine the tractor-trailer-truck?

"A. Yes, sir.

"Q. Would you tell us of that?

"A. Yes sir, the tractor-trailer was parked by the side of Farr Motor Company and the back of the trailer was towards the bank. The door on the east side of the trailer was partly open and you could see into the trailer and there was money, silver, that was scattered all in the door of the trailer and there was silver on the ground leading from towards the bank to the trailer door. I was standing on the outside of the trailer when some officers went through the things that were in the trailer. There was an automatic shotgun —

"(Continuing) Standing on the outside looking in as they went through the things that were in the trailer, an automatic shotgun loaded with buckshot, there was a pistol that was loaded, there were some dynamite, dynamite caps, and some oxygen or acetylene tanks in the truck in the tractor part of it." Transcript 172, 173.

Following Davis' arrest, he was taken to the front of the bank where his clothing was removed by the F.B.I. for purposes of examination. At trial, a government expert witness testified that particles on Davis' clothing matched debris on the floor of the bank at the point where the bank had been entered and the vault opened.

Obviously, appellant was caught in the act of burglarizing the bank. Astute defense counsel, court appointed, who has vigorously represented the appellant both at trial and on appeal, introduced no proof in the court below. He did a splendid job of probing for and attacking any possible weakness in the government's case. He raises three contentions in this appeal: (1) Davis' arrest, which was not based on probable cause, was illegal; therefore the clothing which was taken from him at the bank was improperly admitted into evidence; (2) the Court erred in admitting evidence regarding Davis' associates co-indictees and with reference to the tractor-trailer truck and automobile in which one of them was arrested; and (3) the Court erred in limiting the jury argument of defense counsel.

1. Validity of the Arrest and Subsequent Seizure of Davis' Clothing.

Under the standard established by the Supreme Court, an arrest without a warrant is valid if

"* * * at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. State of Ohio, 379 U.S. 89 at 91, 85 S.Ct. 223 at 225, 13 L.Ed.2d 142.

Since the arrest was made by a state officer, although beyond his territorial jurisdiction, we apply the state test to the validity of this arrest, Henderson v. United States, 5 Cir. 1968, 405 F. 2d 874. As Sheriff Ash was beyond the limits of his county we shall treat the arrest as made by a private person.

Mississippi has a statute on the subject, Mississippi Code (1942) § 2470. It is interesting to note that this statute appeared in identically the same verbiage in the Codes of 1871, 1892, 1906, 1917, and 1930. It reads as follows:

"An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; * * *; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; * * *".

We might dispose of the matter on the simple premise that when Davis was arrested he was in the act of committing a felony in Ash's presence.

The decision, however, need not turn on that ground. In our view, from the circumstances recited, Ash had, in the words of the statute, ...