Gorman v. United States

• Decision Date: 29 June 1967
• Docket Number: No. 6805,6806.,6805
• Citation: 380 F.2d 158
• Parties: Robert William GORMAN, Defendant, Appellant, v. UNITED STATES of America, Appellee. Edward Terrence ROCHE, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

380 F.2d 158 (1967)

Robert William GORMAN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Edward Terrence ROCHE, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6805, 6806.

United States Court of Appeals First Circuit.

June 29, 1967.

COPYRIGHT MATERIAL OMITTED

John P. Bourcier, Providence, R. I., by appointment of the Court for appellant Robert Gorman.

Robert A. Gentile, Providence, R. I., by appointment of the Court for Edward Roche.

Alton W. Wiley, Special Asst. U. S. Atty., with whom Frederick W. Faerber, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

These are appeals from judgments of conviction, following jury trial, of robbery of the Warwick branch of the Rhode Island Hospital Trust Company, its deposits being insured by the Federal Deposit Insurance Corporation. 18 U.S.C. § 2113.¹ We affirm.

The robbery occurred on July 31, 1964. The defendants were identified as the robbers by eyewitnesses. The major issues before us stem from the events leading to the arrest of defendants and the seizure of evidence pursuant to several searches. Several other claims of error arise out of the trial and will be discussed later.

The first break in the case came in New York City over five weeks after the robbery. On the evening of September 8, 1964, New York narcotics agents followed a car bearing known addicts and a man unknown to them to an unfinished, dead end street, overgrown with grass and littered with debris. They observed an unknown man — defendant Gorman — emerge from and return to the car several times, after opening both the hood and the trunk. They approached as Gorman was in the act of injecting his left arm with a needle affixed to an eye dropper. One of the officers took the needle from him, placed him under arrest for violation of the narcotics laws, patted his pockets, and took his wallet, which contained various credit cards bearing the name James Conner, and an "Account Identification Card" for the Conner & Noel Sales Company. Gorman identified himself as James Conner, of the firm of Conner & Noel. Asked why he was using the needle, Gorman replied that he was a user.²

An officer immediately searched the trunk of the car and found an attache case containing a loaded .38 caliber revolver, some extra bullets, $26,660 in currency, some maps, a brown paper bag on which Warwick street names were written, a key to room 23 at the Courtesy Inn motel in New Jersey, and a street guide for Providence, Rhode Island.

Gorman was arrested at about 9:00 p.m. and brought immediately to a police station. He was not given any warning of his constitutional rights by the arresting officer, but it does not appear that he was questioned or that he made any statement during this period except, as above noted that he was a "user" and an admission, brought out during cross-examination of the arresting officer and not objected to by either defendant, that the gun was his. On arrival at the station an officer advised Gorman that he could telephone a lawyer. The District Attorney arrived at 4:00 or 4:30 the next morning and advised Gorman of his constitutional rights. Apparently, nothing further happened until some time between 4:30 and 7:15 a.m. when an FBI agent began to interview Gorman, after again advising him of his right to remain silent, to call an attorney, to have an attorney provided for him if he could not afford one, and of the fact that anything said might be held against him.

Gorman (still posing as Conner) said that he was the employee of a firm, that his boss was a man named Noel, and that he had been staying at Courtesy Inn in Fort Lee, New Jersey. At the time of this interrogation two slips of paper, apparently part of the contents of Gorman's wallet, were lying on the table and were taken by the FBI agent. One was a receipt from a motel in Seekonk, Massachusetts, on the Rhode Island border, tending to show that Gorman had spent two nights there a week before the robbery. The other was a hotel telephone slip addressed to Noel, reporting that a Mr. Conner had called him.

At the conclusion of this interview the agent referred to searching the motel room and "again asked him if he had any objection, and he said, `Go ahead; look in the room.'"

After 7:30 a.m. a group of FBI agents arrived at the Courtesy Inn and searched room 23. They found a receipt, on the back of which was the notation: "Holiday Rockville Cent 504 OR 8-1300 Ext 504". They also found a Courtesy Inn telephone charge receipt reflecting a call on September 7, 1964, to OR 8-1300. Other items seized were a box of .38 caliber cartridges and a shirt with a laundry mark "Noel".

At 10:00 a.m. another group of FBI agents arrived at the Holiday Inn Motel in Rockville Center, New York, the telephone number of which was OR 8-1300. Their purpose was to "check out who occupied" room 504. They knocked on the door. It was opened by a man (defendant Roche) who identified himself as Noel. The agents identified themselves. Noel (Roche), in the process of shaving, invited them to come in and be seated. They urged him to continue and waited for ten to fifteen minutes. Roche asked them what he could do for them. An agent replied that he could possibly be of assistance in a case they were working on. Roche said he would be glad to help in any way he could, and that he was a businessman from Texas, one of the owners of Conner & Noel Sales Company, dealers in educational equipment.

After Roche finished shaving and dressing, an agent asked if he knew Gorman or had received any calls from New Jersey. Roche then asked what this was all about. An agent told him they were investigating a robbery and said that if he was involved in any way he did not need to reply and could have an attorney. Roche reiterated that he wanted to help and that he was on a business trip. He said he did not know Gorman and offered to call his home office to see if someone of that name had been hired in his absence. As to phone calls, he said he had not received any, but it was possible that some could have been made or received by a girl who had been staying with him. Discussion turned to his company's products — models of isotopes and atoms for teaching purposes. He said that he had samples in his suitcases. An agent asked if they could look at them. Roche replied that they could. Another agent asked "Do you have any objection to our looking in your luggage?" Roche said, "Be my guest."

They found a loaded .357 magnum revolver and a substantial amount of currency in an attache case; and in a suitcase, over $35,000 in a shopping bag and six bullets. An agent said, "You have been kidding us." Roche replied, "What else could I say?" Roche was again advised of his right to remain silent and to have counsel. He was then arrested. A Rand McNally Road Atlas of Connecticut, Massachusetts, and Rhode Island was taken from the top of a bureau. When the agents brought Roche down from his room on the fifth floor to the parking lot, they asked if he had other guns in his car and he said he did not. They asked if they could take a look. He replied, "Go right ahead. There is nothing in there." The agents found a hat (bearing a "Providence, R. I." label in the sweatband), some .38 and .45 caliber bullets, a holster for a snub-nosed revolver, some walkie-talkie radio equipment, sun glasses, and several other items.

While nothing approaching a confession by either defendant was introduced in evidence, there were four separate searches claimed to be illegal by one or both of the defendants: of Gorman's automobile at the time of his arrest; of Gorman's room at the Courtesy Inn³; of Roche's luggage; and of Roche's auto.

The search of Gorman and his car was clearly proper as incident to the arrest. Although the police then had possession of the car and the opportunity to seek a warrant, there is every reason to tolerate an immediate search to look for weapons, equipment or supplies connected with the crime, means of escape, or information that might lead to accomplices or, in the case of the narcotics arrest involved here, to sources of supply and means of distribution. United States v. Gorman, supra note 1, 355 F.2d at 154-155, and cases there discussed: Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed.2d 567 (1965).

The search of Gorman's motel room poses a different question. Neither incident to the arrest nor pursuant to a warrant, it can be supported only on the ground that Gorman voluntarily consented to it in the interview at the police station. The ground rules for determining whether purported consent validates a search are well-known and often repeated: the consent must be seen to be an "intentional relinquishment or abandonment of a known right". Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1937). It must be "unequivocal, specific and intelligently given, uncontaminated by any duress or coercion * * *." Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965). And, since arrest carries its own aura of coercion, the burden on the government to show voluntary consent is "particularly heavy". Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951); Villano v. United States, 310 F.2d 680 (10th Cir. 1962). Nevertheless, each case stands on its own facts, and the heavy burden may be carried. United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944). See generally Annot., Validity of Consent to Search Given by One in Custody of Officers, 9 A.L.R.3d 858 (1966). We think it is here.

Here Gorman's conduct did not amount to substantial...