Leffler v. United States

• Decision Date: 16 April 1969
• Docket Number: 19360.,No. 19346,19346
• Citation: 409 F.2d 44
• Parties: Max B. LEFFLER, Appellant, v. UNITED STATES of America, Appellee. Clifford William CLOSE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

409 F.2d 44 (1969)

Max B. LEFFLER, Appellant, v. UNITED STATES of America, Appellee.

Clifford William CLOSE, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19346, 19360.

United States Court of Appeals Eighth Circuit.

April 16, 1969.

Murry L. Randall, St. Louis, Mo., for appellants.

Jim J. Shoemake, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., with him on brief.

Before BLACKMUN, MEHAFFY and HEANEY, Circuit Judges.

MEHAFFY, Circuit Judge.

Max B. Leffler and Clifford William Close, defendants, were convicted by a jury of traveling interstate from Illinois to Missouri with intent to commit extortion, a crime under Missouri statutes in violation of 18 U.S.C.A. § 1952.¹ The issues before this court are: (1) the propriety of the trial court's ruling in refusing to suppress certain evidence allegedly obtained in an illegal search and seizure; (2) the sufficiency of the evidence to sustain the convictions; and (3) asserted prejudicial comments and alleged misstatement of the evidence by the trial court during the course of final arguments by defendants' counsel. We affirm the judgments of conviction.

On the morning of October 31, 1967, defendants, both residents of Chicago, Illinois, appeared at the clinic of Dr. I. J. Hammond in Moberly, Missouri. Defendant Leffler, who first arrived, told the doctor's receptionist that he was a representative of General American Life Insurance Company and wanted to talk to the doctor about a patient. She advised that the doctor was out but would return to his office a little later. Both defendants then came to the clinic at about the time the doctor arrived, and upon telling the doctor that they wanted to talk to him privately, were led by him to the examining room. As they entered the examining room, Leffler gave the doctor a shove and Close closed the door.

Leffler then told the doctor they were police officers, indicating that Close was a detective from Illinois, and had a warrant for his arrest. Leffler showed the doctor a black leather case containing a detective badge on one side and a picture of Close on the other. The doctor questioned them about the contents of the warrant and Close purported to read from a warrant charging the doctor with causing the death of a girl, fourteen or fifteen years old, referred to as "Jane Doe" who allegedly died from treatment performed upon her arm by the doctor. Dr. Hammond asked defendants for the death certificate or a newspaper clipping relating thereto and asked Close to repeat the warrant. During this time the doctor started making notes.

It appeared obvious that the doctor was cognizant of the sham and Leffler then exclaimed, "Come on, come on, the doctor knows what it is all about and let's get going." Thereupon, Leffler jumped up and demanded $2500.00, but the doctor said he did not have that much money in the office and requested to be permitted to use the telephone to obtain it. The doctor, leaving the defendants in the examining room, then went to his adjoining office with the intention of getting a .45-caliber pistol out of his desk drawer. While pretending to use the telephone he discovered that his desk drawer containing the pistol was locked. He then reached for a shotgun on the wall, but in so doing knocked over two Neon light tubes which were resting against the wall. When this occurred, defendants fled from the examining room. At the doctor's direction, his receptionist went to the front door to observe where defendants had gone. She saw them enter a parking lot and reappear in a black car which she thought was a Dodge. The doctor got in his car to give chase and got close enough to determine that the car was a black Chrysler with Illinois license plates, the first three digits of the number being 744.

Because of the traffic, the doctor lost sight of defendants and returned to his clinic where he promptly called the police departments of both Moberly and Columbia, Missouri. He advised the police of what had occurred, giving the description of the car and the defendants, and also told the Moberly police chief of the black leather case containing the police badge and the warrant. Police officers from the Columbia police department were given defendants' descriptions and instructed to arrest them. One squad car was sent to Highway 63 leading from Moberly into Columbia as defendants were believed to be heading that way. A short distance out of Columbia the car and defendants were sighted on narrow Highway 63 close to its intersection with an interstate highway. Upon signal from the police, the defendants stopped their car as far as possible onto the shoulder without driving into the ditch. Nevertheless, the car was stopped close to a curve on a narrow highway and in this position interfered with traffic, creating an unsafe situation. By reason of this traffic condition, as well as the fact that it was drizzling rain, the officers, after arresting defendants, concluded to take defendants and their car to the Columbia police station. It took about ten minutes for the party to drive to the Columbia police station and there one of the detectives in the presence of defendants searched the interior of the car. He found a leather case with the badge and a brown envelope containing a blank warrant, both in plain view over the driver's sun visor. These articles became Exhibits 2 and 4 respectively. The Columbia arresting officer, who rode with Leffler from the scene of the arrest to the Columbia police department and observed the search, testified that the corner of the badge inside the badge case, and the envelope were plainly visible prior to the search. The officers did not take the articles at that time but replaced them as they had found them and notified the Moberly police department that they had the suspects and the car. The questioned articles and the defendants were held until the arrival of the Moberly police, a matter of about forty-five minutes.

The Columbia police apprised the Moberly police of the brown envelope and badge case which remained in plain view over the sun visor, and the Moberly police took the defendants and their car with the articles to Moberly where the car was locked and the defendants taken into the jail. The Moberly officer who drove the defendants' car from Columbia to Moberly testified that the articles were visible at all times and that he did not move them. The chief of police, upon his return from lunch a short time later, called the prosecuting attorney, telling him that the badge case and envelope were clearly visible from the outside of the car and the prosecutor advised that under the circumstances the Moberly police did not need a search warrant. Thereupon, the chief of police unlocked the car and removed the badge case and envelope. These happenings at Moberly occurred within two or two and one-half hours of the time defendants had been apprehended by the Columbia police.

Motion to Suppress.

The trial court upon hearing suppressed certain of the Government's exhibits, but denied the motion to suppress relating to Exhibit 2, the badge case with the badge, and Exhibit 4, the envelope containing the warrant. Error is asserted as to this action of the trial court, based primarily on the case of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). The thrust of defendants' argument is centered entirely on the asserted search and seizure at Moberly, completely ignoring the fact that the defendants were apprehended and arrested by the Columbia police and that the items in question were discovered in plain view over the sun visor by the Columbia detective who searched the car in the presence of defendants at the police station, about ten minutes after the arrests.

Additional to the reliance on Preston, defendants cite courts of appeals cases that encompassed facts somewhat similar to Preston, but the facts here simply do not fit Preston. First, the argument completely ignores the original apprehension of defendants and the search subsequent thereto, and, second, cannot be equated with Preston because, unlike Preston, here the police officers had been advised of the crime defendants had committed as well as the fact that defendants utilized the badge and the warrant in attempting to perpetrate the crime. In Preston, defendants were arrested for vagrancy because they created suspicion when they were parked in the business district between 10:00 p. m. and 3:00 a. m. without a reasonable explanation. They were taken to the police station and later police searched their car and found burglar's tools, guns, and disguise paraphernalia. It was only then that the police actually knew that a serious crime was even contemplated.

The exhaustive opinion of this court in Theriault v. United States, 401 F.2d 79 (8th Cir. 1968), nearly embraces the complete answer to every search and seizure argument defendants raise here. This opinion discusses probable cause, the plain sight doctrine and reasonable searches incidental to a lawful arrest.

There can be no question here that the police officers making the arrests near Columbia had probable cause. The Columbia officers knew the crime had been committed; that defendants fitted the descriptions of the perpetrators; and that the automobile was of the make described and bore an Illinois license plate with the first three digits equating with the plate on the automobile used in defendants' flight from the scene of the crime; and, further, they knew that defendants had used a phony police badge and warrant in attempting to commit the crime. Thus, the officers could make a search of the car and defendants without a warrant incidental to the lawful arrests. Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

We have many times held, as have other courts, that a search and seizure do not necessarily have to be accomplished precisely and immediately...