Fitts v. United States
| Decision Date | 28 January 1969 |
| Docket Number | No. 26141.,26141. |
| Citation | 406 F.2d 518 |
| Parties | John Thomas FITTS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stanley Binion, Houston, Tex., for appellant.
Morton L. Susman, U. S. Atty., Laredo, Tex., James R. Gough, Ronald J. Blask, Malcolm R. Dimmitt, Asst. U. S. Attys., Houston, Tex., for appellee.
Before TUTTLE and GEWIN, Circuit Judges, and PITTMAN, District Judge.
The appellant was convicted by the court sitting without a jury of the unlawful interstate transportation of a stolen car. 18 U.S.C.A. § 2312. The appellant was arrested in Texas while driving a car which it was stipulated had been stolen from a used car lot in Tulsa, Oklahoma.
The appellant was identified at trial by a man named Miller. Miller had discussed the possibility of the sale of a car to the appellant for about 10 minutes before the theft occurred. The appellant contends that this identification should have been excluded because Miller had seen him in a post indictment line-up conducted while appellant had no counsel. The appellant's request for counsel had been denied before the line-up took place.
The line-up did not meet the requirements as established in the Wade trilogy, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). However, in Wade the Court held that in-court identifications would be admissible even though the line-up was improper if the in-court identification had an independent origin. The 10 minute confrontation establishes this independent origin.
This conclusion is bolstered by the fact that the appellant was also identified in court by a Mr. White as the one who took the car from the lot. White had observed the appellant at the lot for 5 to 8 minutes before the theft. This was the only time until trial that White saw the appellant.
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State v. Wisniewski
...cases, all of which were decided subsequent to Wade and Gilbert. Hanks v. United States, 10 Cir., 388 F.2d 171, 174; Fitts v. United States, 5 Cir., 406 F.2d 518; State v. Carrothers, 79 N.M. 347, 443 P.2d 517, 519; Tyler v. Maryland, 5 Md.App. 158, 245 A. 592, 595, 597; Shepard v. State, F......
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United States v. Cranson
...of North Carolina (4th Cir. 1970) 432 F.2d 984, 987-988; United States v. Horton (D.C.Ct.1971) 440 F.2d 253, 254; Fitts v. United States (5th Cir. 1969) 406 F.2d 518, 519, cert. den. 400 U.S. 842, 91 S.Ct. 84, 27 L.Ed.2d 77; Clemons v. United States, supra, (408 F.2d at p. 1237); United Sta......
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Moye v. State, 45380
...discussed with defendant the possible sale of an automobile for about ten minutes before the automobile was stolen. Fitts v. United States, 406 F.2d 518 (CA 5). Finally, the principle is clear from the 'one-man showup' cases cited above that undue suggestion does not arise merely from the f......
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State v. Essary
...not depend for its validity upon the illegal lineup procedure.' In addition to Wade and Gilbert, cited therein see, Fitts v. United States, 5 Cir., 406 F.2d 518, 519; State v. Cannito, 183 Neb. 575, 162 N.W.2d 260, 261; Anderson v. State, Fla.App., 215 So.2d 618, 620, 621; Shepard v. State,......