Honig v. United States

• Decision Date: 28 December 1953
• Docket Number: No. 14765.,14765.
• Citation: 208 F.2d 916
• Parties: HONIG v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F.2d 916 (1953)

HONIG v. UNITED STATES.

No. 14765.

United States Court of Appeals, Eighth Circuit.

December 28, 1953.

COPYRIGHT MATERIAL OMITTED

J. Kehlor Carr, Jr., Clayton, Mo., and Samuel Raban, St. Louis, Mo., for appellant.

James C. Jones, III, Sp. Asst. to U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., on the brief), for appellee.

Before JOHNSEN and COLLET, Circuit Judges, and NORDBYE, District Judge.

JOHNSEN, Circuit Judge.

Appellant was convicted by a jury of impersonating a federal officer, in violation of 18 U.S.C.A. § 912.¹ More specifically, he was charged and found to have falsely represented himself to one Osa Angle, under the alias of Frank Walker, as being an attorney for the National Labor Relations Board, and to have succeeded by this means in obtaining possession from Mrs. Angle of a $6,300 deed of trust.

The only question that merits consideration here is whether the trial court was in error in overruling appellant's timely motion to suppress, and in subsequently allowing to be received over appellant's objection on the trial, certain items of evidence claimed to have been obtained by illegal search and seizure. Three items are entitled to discussion.

The first item is an identification card, which appellant had exhibited to Mrs. Angle in introducing himself to her as an attorney for the National Labor Relations Board. The card was one which appellant had had commercially printed, to which he had attached a photograph of himself, and which he had engaged in carrying as a credential. It bore the heading "United States Bureau of Labor Relations, Washington 25, D. C.," contained a signature "John Whitcomb (Chief Counsel)," and recited that "This is to certify that Frank Walker whose signature and photo is herein is legal field investigator and is hereby authorized to peruse legal documents, records, etc. — to be given every courtesy subject to presentation of this identification." On the back of the card there had been imprinted with a rubber stamp the words "U. S. Bureau of Labor Relations."

The second item is the rubber stamp itself which had been used to make the imprint on the back of the identification card, "U. S. Bureau of Labor Relations."²

The third item consists of seven blank stock certificates, removed from appellant's brief case, in which there were contained also some other papers, not here involved, including bank deposit slips, a partnership agreement, a release from a Ruth B. Burris, and a purported legal petition entitled J. C. Decker vs. United States.

All three of the items being considered were taken from appellant's hotel room, without the obtaining and use of a search warrant. As to the identification card, the Government contended, and the trial court found, that discovery thereof had been made and possession taken on the basis of a search to which appellant had given his consent before he was placed under arrest. As to the rubber stamp and the blank stock certificates, the Government's position and the trial court's holding were that these items were the product of a reasonable search and seizure made after appellant was placed under arrest, as a matter of proper incidence to the arrest itself.

The evidence in relation to the seizure of the identification card was clearly ample to entitle the trial court to find the existence of the facts which follow, and to conclude on the basis of these facts and other evaluative elements involved in the hearing on the motion to suppress that the search made by the officers for the identification card was legally one to which appellant had consented and which had not gone beyond the bounds of the consent given.

An agent of the Federal Bureau of Investigation, accompanied by two police officers of the City of St. Louis, Missouri, had gone to appellant's hotel room in that city, after the FBI had received a report that appellant had been holding himself out as a federal officer or employee. They went to the hotel merely for the purpose of checking or investigating, without any warrant to make a search or for appellant's arrest. They knocked at appellant's door and, when he appeared, they identified themselves to him. He invited them to come into the room and thereafter admitted to them that he was Frank Walker.

The FBI agent then informed appellant of the complaint which had been received concerning him and inquired whether he had anything to identify himself. Appellant replied that he did not. The agent then asked whether appellant would mind if they looked around the room to see if they could find any identification, and appellant replied, "No, certainly, go ahead, gentlemen." One of the officers went to the closet, where appellant's coat was hanging, and discovered in one of its pockets the identification card which is here involved. Appellant was confronted with the identification card and admitted that it was his. He was then asked whether he was in fact a federal employee, replied that he was not, and declared that he had merely been using the identification card to impress people. One of the police officers thereupon placed him under arrest.

On the hearing of the motion to suppress, appellant took the stand, so that the court thus was afforded the opportunity to appraise the question of consent, not merely on the basis of the officers' testimony as such, but in relation to appellant's demeanor and attitude and the background of previous experience which he revealed in criminal violation and arrests.

We hold that on the elements and substance underlying the trial court's appraisal, appellant clearly is not entitled to a reversal for the court's refusal to suppress, and its receiving in evidence of, the identification card which the officers took from appellant's coat pocket in his hotel room just preceding his arrest. This item properly, on the record before us, could be regarded by the court as being within the application of the well-established rule that it is not a violation of the Fourth Amendment for officers, without a warrant, to make a search for and take possession of such articles as legally would be subject to seizure through the use of a warrant, where the person accused or being investigated has consented to the making of the search, if the consent has been given voluntarily and not as a matter of probable compulsion from the demands or domination of authority, and if the search has been kept within the bounds of the actual consent. See De Lapp v. United States, 8 Cir., 53 F.2d 627; Ruhl v. United States, 10 Cir., 148 F.2d 173, 174; Shores v. United States, 8 Cir., 174 F.2d 838, 845, 11 A.L.R.2d 635.

As to the rubber stamp and the blank stock certificates, both of which were taken from appellant's brief case, in the further search which the officers made of his room after placing him under arrest, the primary test to be applied is that of the equally well-established federal rule that an officer may, without a...