Green v. United States

• Citation: 386 F.2d 953
• Decision Date: 18 December 1967
• Docket Number: No. 9444-9447.,9444-9447.
• Parties: James Lee GREEN, Appellant, v. UNITED STATES of America, Appellee. Walter Lee GREEN, Appellant, v. UNITED STATES of America, Appellee. Floyd KING, Appellant, v. UNITED STATES of America, Appellee. Ira Donnell WATKINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

386 F.2d 953 (1967)

James Lee GREEN, Appellant, v. UNITED STATES of America, Appellee.

Walter Lee GREEN, Appellant, v. UNITED STATES of America, Appellee.

Floyd KING, Appellant, v. UNITED STATES of America, Appellee.

Ira Donnell WATKINS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 9444-9447.

United States Court of Appeals Tenth Circuit.

December 18, 1967.

Jo-Ann Fisher Corrigan, Oklahoma City, Okl., for appellants.

John E. Green, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., was with him on the brief), for appellee.

Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

Appellants were each convicted under 18 U.S.C. § 371 of conspiracy to receive, retain and conceal 321 stolen United States Postal Money Orders knowing the same to have been stolen in violation of 18 U.S.C. § 641 and falsely made in violation of 18 U.S.C. § 500. Appellants King and Watkins were also convicted of a substantive offense in violation of 18 U.S.C. § 641. Each appeals, contending that his conviction is premised on the violation by acts and conduct of both local and federal police officers of numerous procedural and constitutional rights and the projection of the "fruit of a poisonous tree" in evidence at trial. We find merit in certain aspects of appellants' claims.

During early afternoon on August 8, 1966, officers of the Oklahoma City police observed a late model automobile bearing out-of-state license plates being driven in downtown Oklahoma City and carrying four male occupants. When the driver of the car parked in the near vicinity the police officers subjectively determined that the activities of the occupants would be well worth watching from the standpoint of law enforcement. The city officers proceeded to do just that, and, noting that the subject car was twice moved short distances, was in the vicinity of financial business institutions, and that the conduct of the occupants was unusual, the officers became increasingly apprehensive that some form of unlawful activity was in the making. The surveillance¹ continued for over an hour during which appellants Watkins and James Green entered a photo shop and appellants King and Walter Green wandered in the vicinity of the car. When Watkins left the photo shop he was stopped and questioned as to his name, address, and place of employment and was then arrested for vagrancy. His person was searched and a money order found which was later admitted in evidence after proof that it was stolen. James Green was next arrested in the photo shop as a vagrant and his person was searched. Nothing pertinent to our consideration resulted from this search.

Leaving Watkins and James Green in custody, two city officers then walked down an alley where appellants King and Walter Green were waiting near the car. As the officers approached King they observed that he had a straight-edge razor protruding from his pocket and arrested him for carrying a concealed weapon. A search of his person revealed eleven postal money orders later determined to be stolen and admitted in evidence at trial. Walter Green was arrested for vagrancy and searched with no incriminatory result. Contemporaneously with these arrests the officers made a preliminary search of the car and found additional money orders, a long knife, and a rubber stamp of the type commonly used to stamp postal money orders. The fruits of this search were admitted in evidence at trial.

After appellants were lodged in the Oklahoma City jail postal authorities were notified of the incident. A federal search warrant was obtained and a thorough search of the car turned up 299 additional stolen money orders. The following day, prior to federal arraignment, appellants were severally interviewed by postal investigators and incriminating statements and handwriting specimens were made and obtained from each of the appellants.

We agree with the contentions of appellants Watkins and James Green that their original arrests as vagrants were not a lawful exercise of police power, that the searches of their persons were not justified as incidents to lawful arrest, and that as a consequence the money order found upon the person of Watkins was improperly admitted in evidence. Although the hour-long surveillance of appellants certainly pointed the finger of suspicion at their individual and concerted activity still neither of these appellants committed an unlawful act observed by the officers that can support a lawful arrest. Under Oklahoma law a city police officer is a state officer, City of Lawton v. Harkins, 34 Okl. 545, 126 P. 727, 42 L.R.A.,N.S., 69, and may arrest without warrant when a public offense is committed in his presence or when a felony has been committed and reasonable cause exists to believe the person arrested has committed it. Title 22, Okl.Stat. § 196. Neither of these statutory authorities is applicable to the arrests of Watkins or James Green. Nor can the existence of an Oklahoma City vagrancy ordinance (not here cited to us) be corrupted in use so as to constitute a tool of avoidance or shortcut to the basic requirements of due process in the administration of justice. And this fundamental rule exists regardless of the ultimate determination of the existent suggestion attacking the constitutionality of particular statutes making vagrancy a crime of status. See Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N. E.2d 426 (N.Y.Ct.App. July 7, 1967). Vagrancy is a chronic condition rather than a moment of idleness or unemployment and under no acceptable concept was committed by these appellants in the presence of the arresting officers. Indeed, the officers here testified that the first arrests were triggered by suspicion that a "con game" was in progress and thus it follows that the arrest of Watkins and James Green was but a tool of convenience to gain time for investigation and give purported validity to otherwise unlawful searches and seizures. Such use of vagrancy statutes, we think, has been properly criticized. See generally Note, Use of Vagrancy-type Laws for the Arrest and Detention of Suspicious Persons, 59 Yale L.J. 1351 (1950); Foote, Vagrancy-type Law and its Administration, 104 U. of Pa.L.Rev. 603 (1956).

Although the approach to appellants King and Walter Green was motivated by the same suspicion that occasioned the arrest of the other two appellants, the actual arrest of King differed. King was observed to be in possession of a concealed weapon and consequently subject to arrest without warrant under Oklahoma law. Both the search of his person and of the car were reasonable under all the circumstances as incidental to a lawful arrest. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. We find no special pertinence in the subsequent arrest of Walter Green for vagrancy nor the search of his person although it would be naive and perhaps...