Moore v. United States
| Decision Date | 07 December 1961 |
| Docket Number | No. 18797.,18797. |
| Citation | 296 F.2d 519 |
| Parties | Alvin Ervin MOORE and Stanley Smith, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stanley Wolfman, Tobias Simon, Miami, Fla., for appellants.
Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., Edward F. Boardman, U. S. Atty., Miami, Fla., for appellee.
Before JONES and BELL, Circuit Judges, and SIMPSON, District Judge.
Appellant Alvin Ervin Moore was charged in two indictments with forgery and unlawful possession of a treasury check in violation of the provisions of Title 18 U.S.C.A. §§ 495 and 1708, respectively. Appellant Stanley Smith was charged with violation of § 1708 in willfully aiding and abetting Moore in the unlawful possession of the treasury check which had been stolen from the United States mail. Both appellants filed motions to suppress seeking exclusion of the check. By agreement the cases were consolidated for hearing on said motions and for trial. The trial court denied the motions. Upon trial by the court, appellants having waived jury trial, on the issues raised by the charges and pleas of not guilty, both appellants were found guilty, and this appeal is from judgments of conviction.
The sole question here turns on the correctness of the order denying the motions to suppress. Appellants contend that it was error for the reason that the check was obtained from appellant Moore by a state police officer through search and seizure incidental to an arrest without a warrant, where there was no probable cause for the arrest, thus violating rights secured to appellants by the Fourth and Fourteenth Amendments to the Constitution of the United States. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669.
State law determines the validity of an arrest without a warrant. United States v. Di Re, 1947, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. Under the Florida statute, F.S.A. § 901.15(3) an arrest may be made without a warrant if the officer has reasonable ground to believe that a felony has been or is being committed by the person arrested. Reasonable ground under the Florida statute, the government concedes, is synonymous with probable cause. And we must determine the existence of probable cause from the facts as they existed at the time viewed through the eyes of the police officer. Bell v. United States, 1958, 102 U.S.App.D.C. 383, 254 F.2d 82. The arrest cannot be justified by the search or the fruits of the search so we must look to the facts as they existed prior to the arrest. Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.
The facts, in the view most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, concerning the arrest, search and seizure are as follows. Between eleven and twelve o'clock A.M. the police officer was notified of the theft of a bundle of mail three and one half blocks from where the arrest took place, and was advised to be on the lookout for the thief or thieves. Thereafter, while patrolling in a police car, the officer observed appellant Moore, a female companion beside him and three male companions close behind walking on the street. He observed through his rear view mirror that they were watching him. The officer made a U-turn and as he did the three individuals to the rear ran. Appellant Moore and his companion continued to walk but turned into...
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