Jackson v. United States

Citation408 F.2d 1165
Decision Date18 April 1969
Docket NumberNo. 19247.,19247.
PartiesBilly Joe JACKSON, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Lewis E. Pierce, of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellant.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., with him on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

On October 9, 1967, a three-count indictment was returned against Billy Joe Jackson and Chester Carl Barber charging them with April 1967 violations of 18 U.S.C. §§ 2 and 2115 (forcible breaking into a building used in part as a United States Post Office at Preston, Missouri, with intent to commit larceny in the post office), of 18 U.S.C. §§ 2 and 1361 (depredation against government property, with damage in excess of $100), and of 18 U.S.C. § 641 (receipt of government property of a value in excess of $100, with intent to convert it to their own use and knowing it to have been stolen). Counsel was appointed for each defendant. Barber's motion for a severance, under Criminal Rule 14, was granted. Jackson, in the manner prescribed by Criminal Rule 23(a), waived his right to a jury trial.

Certain facts were stipulated, with the defense reserving rights to object on grounds of irrelevancy and immateriality, and to assert that specified exhibits, accompanying the stipulation, had been obtained by an unlawful search and seizure. Judge Oliver found Jackson guilty on all three counts. The court imposed sentences of 5 years, 6 years, and 6 years, respectively, all to be served concurrently and also concurrently with any other sentence Jackson was serving, but with the provision, under 18 U.S.C. § 4208(a) (2), that the defendant may become eligible for parole at such time as the board of parole may determine.

Jackson appeals in forma pauperis. He argues that the warrant to search the pickup truck which he was driving when he was arrested was the fruit of an already accomplished unlawful search; that the search was made by state officers before the arrest and thus could not be incident to a lawful arrest; that the arresting officers possessed no authority, under state law, to make the search; and that the arrest was not based on probable cause.

The facts. It was stipulated that the building housing the United States Post Office at Preston, Missouri, was forcibly entered the night of April 12, 1967; that a safe therein, valued at $300, was broken open and damaged beyond repair; and that the government property stolen on that occasion included blank money order forms, a metal cash and stamp box, a canvas mail sack, United States Treasury checks, $65.91 in currency and coin, postage stamps, migratory bird stamps, postal cards, stamped envelopes and other items, all specifically described.

The stipulation further recited that Exhibit 6 thereto consisted of a canvas mail sack and its contents seized on April 13, 1967, in executing a search warrant, from a pickup truck owned by Jackson; that among the sack's contents were the blank money order forms described as stolen from the Preston Post Office, $60.86 in currency and coin, and a number of other items which had been described as those taken in the Preston burglary; that Exhibit 11 thereto was a cardboard box containing still other items which were inside the sack when it was seized; and that among those items were postage stamps, stamped envelopes, and migratory bird stamps in amounts and denominations precisely coinciding with those taken at Preston.

It was also stipulated that the transcript of proceedings before a United States commissioner and the transcript of proceedings in the district court on the pretrial motion to suppress should constitute a part of the original record and the testimony there regarded as having been given by the witnesses at the trial.

The additional factual material, as revealed by the total record as thus supplemented, is not really at issue. We endeavor to recite it fairly.

Officer Billy Joe Hart of the Clinton, Missouri, police, and another, while patrolling the city by car in the early morning of April 13, discovered an attempted burglary at the Plaza Supermarket some blocks north of the city square. The market's back door had been pried but access was not gained. This was about 2:15 a.m. Hart then checked the nearby Sears Roebuck store and found a door open. He checked the Stayton Chevrolet agency, also nearby, and found its door pried open and the building entered. He and his fellow officer thought they heard footsteps in the building. They radioed for help and remained outside watching the building. In response to their call Missouri State Highway Patrol Trooper Mitchell arrived about 3 a. m. The officers searched the Stayton building but found no one. Mitchell then left.

Hart went off duty at 5 a.m. While leaving in his personal automobile, he passed Mitchell. They conversed and agreed to have coffee at a cafe on the square. Hart then observed a pickup truck in the city square going the wrong way in a one-way lane. He wrote down its license number. The truck had two occupants Hart had not seen before. It had come into the square from the general direction of the burglaries on the north side of the city.

At the cafe Hart told Mitchell about the strangers in the truck driving the wrong way. The cafe's coffee was not yet ready so the two men decided to follow the pickup in Mitchell's patrol car. They met another officer who told them he had seen a blue pickup going toward Kansas City. They caught up with the vehicle a few miles west of Clinton and outside the city limits. Because of existing road shoulder conditions they decided to continue following it to Hartwell and to stop it there. However, before Hartwell was reached, the truck turned left off the highway into the driveway of a farmhouse owned by people named Winkler and stopped. The officers drove in behind but did not block the driveway.

Trooper Mitchell asked Jackson, who was driving the truck, to come back to the patrol car and to produce his driver's license. Officer Hart, at Mitchell's request, asked the passenger, who was Barber, to get out. As Barber emerged Hart observed a canvas bag on the floor of the truck. The truck's door remained open 12 to 16 inches. Mitchell then checked Barber's license. Jackson started to move to the front of the patrol car. Mitchell told him to "stand still". He also instructed Hart "to watch" the two men. Mitchell walked around the pickup and through its open door saw the edge of the sack which was of the type he had "seen in post offices there in Clinton". He lifted the edge and saw a metal box. He looked no further. Mitchell then formally announced that Jackson and Barber were under arrest for investigation of burglary. The officers at the time had not been given permission to search and possessed no search warrant.

Clinton, a city of approximately 7,000 persons, is about 50 miles northwest of Preston, Missouri.

Around 12:30 that morning, and before all this had taken place, Hart had heard a report on the highway patrol radio of a message from the sheriff of adjoining Bates County that a store had been broken into and a black pickup truck had been observed leaving the scene. Hart, however, did not tell Mitchell about this broadcast. Mitchell learned of the Bates County report from the Clinton chief of police about 4:30 that morning after he had left Stayton Chevrolet. He did not personally see the pickup going the wrong way at the square.

After the arrest Jackson turned the truck's keys over to the officers. The vehicle was locked and left in the Winkler driveway. In mid-afternoon a postal inspector and a deputy marshal, armed with a search warrant, searched the truck. This search produced the canvas bag and its contents, and the contents of the cardboard box, all of which obviously connected and incriminated Jackson with the Preston Post Office burglary.

The Winklers had not invited Jackson and Barber into their driveway and did not know the two men.

1. The arrest and when it was made. The defense argues that Jackson's arrest was made only after trooper Mitchell had further opened the pickup's door and had lifted the edge of the sack and observed the metal box, and when he announced that the men were under arrest. Thus, it is said, the search preceded the arrest and, as a consequence, was not a search incident to an arrest.

The trial court, however, specifically and contrastingly found that Jackson and Barber had been arrested before Mitchell went to the pickup's door. It found and held that the arrest was made when Mitchell instructed Hart to watch Jackson and Barber, that this was before Mitchell looked into the truck, and that Mitchell's subsequent formal announcement was not determinative as to when the actual arrest took place.

We could not hold that Judge Oliver's finding as to this chronology is clearly erroneous and without support in the record. This court, of course, has held on more than one occasion that an officer's stopping of a motor vehicle and making a check of the driver's license may not constitute an arrest in the legal sense. Rodgers v. United States, 362 F. 2d 358, 362 (8 Cir. 1966), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454; Schook v. United States, 337 F.2d 563, 566 (8 Cir. 1964); Gullett v. United States, 387 F.2d 307, 309-310 (8 Cir. 1967), cert. denied 390 U.S. 1044, 88 S. Ct. 1645, 20 L.Ed.2d 307; Reed v. United States, 401 F.2d 756, 761, n. 3, (8 Cir. 1968). See Dupree v. United States, 380 F.2d 233, 235 (8 Cir. 1967), cert. denied, 392 U.S. 944, 88 S.Ct. 2289, 20 L.Ed.2d 1407.

We said in Schook v. United States, supra, 337 F.2d at 566, "Arrest connotes restraint and not temporary detention for routine questioning." Where, however, there is restraint and a restriction of...

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