Kuhl v. United States

• Decision Date: 12 September 1963
• Docket Number: No. 18688.,18688.
• Parties: Edward C. KUHL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

322 F.2d 582 (1963)

Edward C. KUHL, Appellant, v. UNITED STATES of America, Appellee.

No. 18688.

United States Court of Appeals Ninth Circuit.

September 12, 1963.

William H. King, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., and Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and KUNZEL, District Judge.

BARNES, Circuit Judge.

This is an appeal from appellant's conviction after a trial by jury on four counts alleging violation of federal counterfeiting laws — three substantive (18 U.S.C. § 474)¹ and one a conspiracy count (18 U.S.C. § 371).

Count I charged appellant with making two aluminum plates for the impression of a twenty dollar bill; Count II with making three photographic negatives of a twenty dollar bill; Count III with possession of the plates; Count IV with possession of the negatives; and Count V with conspiring with codefendant Heisler to violate the said counterfeiting statute.

Practically all of the physical evidence against the two defendants was obtained by the police either (a) in a search of Heisler's home on January 3, 1962, or (b) in a search of Kuhl's automobile after his arrest on the same day.

Alameda County Sheriff's officers, together with San Pablo and El Cerrito police, arrested defendant Heisler on two warrants; one, an Alameda County Sheriff's Office warrant for violation of probation, and a second from the Oakland Police Department, charging forgery and felony check offenses. There had also been El Cerrito felony check "charges" lodged against Heisler, but no warrant for his arrest on those charges.²

The search of the Heisler house at 1914 Pablo Vista, San Pablo, was thorough. It included his living room, bedrooms, garage, bureau drawers, closets and bookcases.

In the bookcase was discovered a photograph (Government's Ex. 6) of defendant Kuhl and his brother taken on the Heisler premises at a New Year's party two days earlier. Sergeant Armstrong, one of the arresting officers, recognized the picture as being that of Kuhl, whom he had "investigated" in October 1961. The investigation related to the storing of a duplicating machine on property owned by Kuhl.

Armstrong had kept the premises known as 2755 14th Avenue, San Pablo (where the Kuhls lived), under surveillance for a week prior to January 3, 1963, and had noted that an automobile was sometimes parked near that address; a 1950 blue two-door Pontiac automobile, license number EPN 809, that had (strangely) once been owned by Armstrong, Kuhl had been under investigation since October 1961 when in the night time Kuhl had moved a printing press into a storeroom on 1745 California Street in San Pablo. The suspicion of the police was that he was printing checks to be used in forgery operations.

On January 3, 1963, after taking Heisler to the police station, Armstrong started back to the Heisler residence, and when "in the area" of the Heisler residence (about two blocks away) saw the 1950 blue two-door Pontiac car being driven by Kuhl "away" from the Heisler residence area. Armstrong turned his car around, called for assistance, followed the Pontiac, and had another officer (Gaarsee) stop the Pontiac. Gaarsee talked to Kuhl (both seated in the police car) until Armstrong went back to the Heisler residence to verify that it was Kuhl who was in fact one of the persons in the picture found on Heisler's premises. Armstrong looked again at the photograph and then ordered Kuhl arrested on suspicion of violation of California Penal Code, § 476,³ and the car impounded (Impounding Order, Pltff's Ex. 11). It was released to the registered owner, Margaret Swazy, 4863 Appian Way, El Sobrante.

Kuhl's residence had been under surveillance by the police since Kuhl had been present when Mr. Heisler had rented an apartment in El Sobrante. Heisler had been under surveillance because of the police's suspicion that he was forging checks.

The search of the Heisler house, made before the Kuhl arrest, disclosed that one bedroom had been converted into a darkroom or photographic laboratory. (Gov.'s Ex. 1i.) The government's Exhibits 1h and 1g were photographs of aluminum plates found in the bureau drawer of the photographic room. (Gov.'s Exs. 2a and 2b were likewise photos of the plates.) Government's Exhibit 1f was a photo of bottles of photographic solutions; Government's Exhibit 1e, a photograph of developing equipment in the garage, and 1d was a photograph of graph paper manufactured by Addressograph-Multigraph, found on top of the dresser in the photographic room. Government's Exhibit 1b was a photograph of solutions found in a closet. Government's Exhibit 1a was the Multigraph machine found in the garage at 1914 Pablo Vista. The aluminum plates disclosed by Exhibits 1h, 1g, 2a and 2b were identified as photographic offset multilith plates of United States twenty dollar bills.

In addition to the foregoing, the government seized, in the search of the house, the following:

Government's Exhibit 9: three photographic negatives, two of face and one of back of a Federal Reserve twenty dollar note (found in bureau drawer);

Government's Exhibit 12: a box of clean-up sheets;

Government's Exhibit 14: the camera (on table of room at 1914 Pablo Vista);

Government's Exhibit 16: exposure frame (on top of bureau);

Government's Exhibit 17: one of two packages of Multilith Master presensitized aluminum offset plates (found in room);

Government's Exhibit 19: an aluminum plate (found in a drawer);

Government's Exhibit 20a, b and c: three sheets of yellow graph paper (in the bureau);

Government's Exhibit 21: tracing paper tablet (in the bureau holding yellow graph paper);

Government's Exhibit 22; Ansco film holder (on the table); and

Government's Exhibit 23: a twenty dollar note (genuine) found in an envelope with the Exhibit 9 negatives.

Seized from the Kuhl automobile were Government's Exhibits 7 and 8, aluminum offset plates, which had been partially destroyed or burned, but still had portions of the back of a twenty dollar Federal Reserve note attached to the frame.

I

ERRORS ALLEGED

Appellant urges three errors:

(1) The denial of appellant's pre-trial motion to suppress the evidence taken from his car.

(2) The denial of appellant's pre-trial motion to suppress the evidence taken from the premises at 1914 Pablo Vista.

(3) The denial of appellant's motion made during the trial to suppress the evidence taken from his car.

We find no merit in any of the errors urged.

The short answer to the second alleged error — the pretrial motion to suppress the evidence taken from the premises at 1914 Pablo Vista, is that no such motion was ever made by appellant Kuhl.

A. The motion made by appellant's counsel refers solely to "property seized by State and/or Federal authorities from the automobile he was using on or about January 3, 1962, and unlawfully taken from the said automobile etc., etc. * * *" (Clerk's Tr., Doc. 5. Emphasis added.)

B. The affidavit in support of the motion so filed (Clerk's Tr., Doc. 6) refers to the property allegedly unlawfully seized as "the contents of the auto I was driving."

C. The Reporter's Transcript of the hearing shows the following:

"Mr. Preovolas: Attorney for Kuhl I question the right at this point to conduct a search of the premises, if this is the fact.

"The Court: This is the search of a house?

"Mr. Preovolas: That is right, Your Honor.

"The Court: The automobile hasn\'t come into this yet?

"Mr. Preovolas: Well of course they are going to link up this evidence with the defendant, too.

"The Court: They may do that * * *" (Tr. p. 4.)

D. On the trial, appellant made no proper objection to the evidence seized in the house search, nor any motion to suppress it, on any ground.

Appellant's brief states that "on the hearing, appellant's * * * attorney made it plain that he was objecting not only to the seizure of the evidence contained in appellant's automobile, but also to the use of evidence seized from the premises at 1914 Pablo Vista." This is simply not correct. A careful examination of the Reporter's Transcript reference shows the only reference is on page 4, which is quoted in full, supra. We find the question now urged was never raised by defendant Kuhl at the trial, and only incidentally and inferentially, if at all, prior to trial. Waldron v. United States, 1955, 95 U.S.App.D.C. 66, 219 F. 2d 37, may take care of the defendant's failure to object at the trial to that evidence which was the subject of the previous motion to strike, but it cannot correct or supply a lack of a motion to suppress never previously made to the trial court.

We therefore need not reach the questions (a) whether defendant Kuhl has standing to challenge the legality of the search of the Heisler premises; (b) whether the Heisler search was unreasonable because too extensive.⁴

II

(1) Turning to the first and third alleged errors, we reach the problem of whether there existed probable cause to arrest Kuhl. We find on page 14 of the transcript a description of how Mr. Kuhl's automobile was stopped, and on page 32 of the transcript we learned of the speed of Mr. Kuhl's vehicle (if not its flight). Mr. Kuhl was going faster than thirty miles per hour and failed to make two boulevard stops.

(2) Mr. Kuhl's automobile was first discovered within two blocks of the Heisler residence going away from it. (Tr. p. 30.)

(3) Prior to the arrest of Mr. Kuhl, Officer Gaarsee who actually arrested him, saw in the Kuhl car "a roll of aluminum paper rolled up — felt paper, and a paper bag with light globes in it." (This was Gov.'s Ex. 3 on the motion to suppress. Officer Armstrong had not seen it, and probably Officer Gaarsee knew only dimly, if at all, the significance of what he saw.)

(4) Prior to the arrest, Officer Armstrong had known of Kuhl's being charged in the past "with forgery." Whether Armstrong thought both forgery and counterfeiting char...