Fagundes v. United States, 6296.

• Decision Date: 25 January 1965
• Docket Number: No. 6296.,6296.
• Citation: 340 F.2d 673
• Parties: Alfred F. FAGUNDES, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

340 F.2d 673 (1965)

Alfred F. FAGUNDES, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6296.

United States Court of Appeals First Circuit.

Heard November 2, 1964.

Decided January 25, 1965.

Raymond J. Dowd, Boston, Mass., with whom Joseph Sax, Boston, Mass., was on brief, for appellant.

A. David Mazzone, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Senior Circuit Judge (by designation).

On this appeal from a judgment imposing concurrent sentences on the appellant on two counts for bank robbery in violation of Title 18 U.S.C. § 2113(a) and (d), of which he had been found guilty by a jury, we are concerned once more with questions of search and seizure. One allegedly illegal search was of an automobile in which local police found United States currency later traced by the FBI to the robbed bank. Two other allegedly illegal searches were of the apartment of one Mary Barton at 84 Gordon Street, Brighton, and of the apartment of one Lucille Poulos at 78 Hillside Avenue, Roxbury, where the appellant was found by local police and arrested.

On September 5, 1963, shortly after 1:00 o'clock in the afternoon, two men wearing Halloween masks and brandishing revolvers entered the Washington Square office of the Brookline Trust Company.¹ One of the men announced "This is a hold up" and ordered the assistant branch manager to lie down on the floor. When he was slow in complying the bandit fired a shot in his direction which lodged in a baseboard. The bandits then quickly collected over $13,000 from the tellers on duty and left. Just after the bandits backed out of the door the branch manager, who had hidden during the holdup, went to the window and saw the two men removing their masks and getting into a white 1963 Chevrolet sedan parked at the curb in front of the bank. The branch manager read the license number of the car as it was driven off, wrote the number down on a slip of paper, and notified the police.

About 2 o'clock that afternoon the automobile identified by the branch manager was found abandoned in front of 1376 Commonwealth Avenue, Boston, about a block and a half from 84 Gordon Street, Brighton. An examination of the vehicle and subsequent investigation disclosed that it had been stolen the day before while it was parked on Beacon Street in Brookline. In the car when it was stolen were miscellaneous items belonging to the owner including men's and women's sample shirts, jackets, brief case, ruler, golf clubs, keys and gloves. When the car was recovered and examined none of these articles were in it.

The scene now shifts to Abington, Massachusetts, a small community about 15 miles south and a little east of Boston.

About 8:00 o'clock in the morning of September 6, 1963, the day after the robbery, Officer Mackiewicz of the Abington Police, responding in his cruiser to an automobile accident report, came upon an old convertible rammed against a tree. As he approached he saw a man emerge from behind the wheel and stagger toward the rear of the car. He arrested the man for driving under the influence, driving so as to endanger, and intoxication. He also arrested a woman in the car for intoxication and drove both of them in his cruiser to police headquarters. They proved to be George and Mary Barton, husband and wife, who lived in an apartment at 84 Gordon Street, Brighton.

Officer Mackiewicz with another officer returned to the scene of the accident to remove the convertible. He found that although he could start the engine he could not put the vehicle into reverse and his brother officer sent for a wrecker. Officer Mackiewicz then undertook to secure the contents of the car from the weather, for it was raining hard at the time and the back window was broken out or missing. In doing so he saw a woman's good-sized straw handbag lying open on its side on the back seat of the car with bundles of United States currency in plain sight in it. The convertible was removed by wrecker to the yard of the police station and officer Mackiewicz carried the straw bag with its contents into the police station and turned it over to the acting chief of police.

In the meantime the Bartons had been "booked" by other officers in the course of which George Barton had been asked for his driver's license and had handed his wallet over to an officer. In looking through the wallet for the license the officer found eleven $100 bills and two $50 bills.

The acting chief of the Abington Police notified a lieutenant of the State Police of his find and of his natural suspicions and the latter notified the FBI. Soon thereafter the lieutenant and agents of the FBI came to Abington Police Headquarters and they, with the acting chief and local officers, took the money to a nearby bank to count it. They found $5,495, including the money discovered in George Barton's wallet, in bills of various denominations. A comparison of the serial numbers of the bills with the serial numbers of bills in "robbers packs"² handed by the Brookline Trust Company tellers to the robbers the day before identified 29 of the bills as having been stolen from the bank.

Later in the day Boston and Brookline police officers armed with a search warrant went to the Bartons' apartment at 84 Gordon Street, Brighton. Their search revealed two masks similar to those worn by the bank robbers, Smith & Wesson .38 calibre cartridges, one cartridge shell of the same calibre, a canvas money bag similar to one passed the day before by a teller at the bank to the bandits, and three $5 bills, two of which had serial numbers listed as in the "robbers packs." They also found a pair of gloves which had been in the bandits' getaway car when it was stolen.

Still later in the day, about 6:30 P.M., Boston detectives went looking for Fagundes in one of his known haunts, the apartment of Lucille Poulos on the second floor of 78 Hillside Avenue, Roxbury.³ They knocked on Mrs. Poulos's door and announced themselves to be police. She admitted them and gave them permission to look for Fagundes, whom they flushed out of a closet at gun point. He was promptly arrested, charged with complicity in the robbery of the Brookline Trust Company and handcuffed. Although Mrs. Poulos gave the officers permission to search her apartment without a warrant, nevertheless some of the officers went for a search warrant while others held Fagundes under guard in the apartment. The officers' search on warrant revealed a package of money containing 34 $5 bills identified by their numbers as from the bank's "robbers packs," a Smith & Wesson .38 calibre revolver, 5 .38 calibre cartridges, and golf clubs, shirts and other items later identified as having been in the getaway car when it was stolen.

An admitted ballistics expert positively identified the bullet taken from the baseboard at the bank as having been fired from the Smith & Wesson revolver found in Mrs. Poulos's apartment and from no other firearm.

Fagundes and one Daniel J. Herd, who with his wife lived in the first floor apartment at 78 Hillside Avenue, Roxbury, were indicted in two counts for armed robbery of the Washington Square office of the Brookline Trust Company in violation of Title 18 U.S.C. § 2113(a) and (d). George and Mary Barton and one Christopher F. Herd were indicted for possession of money stolen from the bank in violation of Title 18 U.S.C. § 2113(c). On the government's motion all cases were consolidated for trial. Pretrial motions by Fagundes and Daniel J. Herd and by the Bartons to suppress the evidence obtained as described hereinabove were denied. All defendants plead guilty except Fagundes who stood trial by jury, was found guilty and sentenced and then took this appeal.

The appellant's basic contention is that the "search" of the Bartons' car by officer Mackiewicz of the Abington police was illegal. Wherefore it is asserted that subsequent searches, although on warrants, of the Barton and Poulos apartments were also illegal for the reason that the warrants were obtained on the basis of information flowing from the illegal discovery of the money in Abington. We do not agree for there was no "search" in the legal sense of the Barton automobile.

Officer Mackiewicz did not return to the Barton car for the purpose or with the intention of searching it. Nor when he got there did he rummage in the glove compartment or pry into the trunk. See Davis v. United States, 327 F.2d 301 (C.A. 9, 1964). He went back to the car to remove it from the scene of the...