Nicholson v. United States

• Decision Date: 18 January 1966
• Docket Number: No. 22053.,22053.
• Parties: Andrew NICHOLSON, and Richard Reed Criswell, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

355 F.2d 80 (1966)

Andrew NICHOLSON, and Richard Reed Criswell, Appellants, v. UNITED STATES of America, Appellee.

No. 22053.

United States Court of Appeals Fifth Circuit.

January 18, 1966.

Hugh Peterson, Richard Allison, Atlanta, Ga., for appellants.

Wilbur G. Owens, Sampson M. Culpepper, Asst. U. S. Attys., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before MARIS,^* RIVES, and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

Appellants were convicted on a four count indictment charging them with burglary of and larceny from post offices located at Bradley and Wayside, Georgia. 18 U.S.C.A. §§ 2115 and 1708. They contend that the District Court erred in refusing to suppress certain evidence obtained by state officers after arresting them and searching the car in which they were riding. They also urge that the evidence was insufficient to sustain the convictions, and that the court improperly refused a requested charge on circumstantial evidence. Appellant Criswell separately contends that he was prejudiced by the charge on flight, while it is Nicholson's position that an incriminating statement made by him to a postal inspector was inadmissible because of the delay in taking him before an United States Commissioner pursuant to Rule 5(a), F.R.Crim.P. We affirm.

Appellants, along with Elvin Criswell and Billy Hindman, were seen by two city police officers in an automobile traveling very slowly, described as creeping, along a street in Milledgeville, Georgia at approximately 2:45 A.M. on June 2, 1964. These officers had previously seen them driving slowly on the opposite side of town at 1:30 A.M. on the same morning. Milledgeville is a small town with very little traffic after midnight. When the officers saw the car the second time, they followed it for eight or nine blocks. The testimony was that the car weaved once or twice toward the center of the street, and that one or more of the occupants of the car kept looking back at the police car. The man in the right front seat appeared to be hiding something under the seat or taking something from under the seat. The car bore a Gwinnett County, Georgia license and the officers knew that three policemen had been murdered in that county a month or so earlier.

The officers signaled for the car to stop; and the driver, appellant Criswell, immediately got out of the car and approached the police car which was only a few feet away. One of the officers inspected his driver's license and determined that Criswell had not been drinking. Criswell stated that they were en route from Macon to Atlanta, became lost, and were in Milledgeville for gas. This seemingly conflicted with the fact that they had been seen in Milledgeville earlier, and also Milledgeville was some forty miles off the route from Macon to Atlanta.

One of the police officers then flashed his light into the car occupied by appellants while standing beside it for the purpose of discovering weapons or whisky which might be visible. He saw something on the rear floor of the car covered by a white sheet, and a pinch bar or crowbar laying on the right front floor board. Criswell stated that the object covered by the sheet was a radio. The officer walked around to the right front side of the automobile to look at the pinch bar and asked the occupant of the right front seat, Elvin Criswell, to step out of the car. He saw that the pinch bar had been moved and asked Elvin Criswell where it was. Elvin answered, "What pinch bar?", and denied the presence of a pinch bar. The police officer then leaned down and flashed his light under the seat. He then saw the pinch bar, and also saw that the object covered by the sheet did not appear to be a radio but resembled a check writing or money order machine. He thereupon told the four occupants of the automobile that they were under arrest.

At this point, Nicholson, who was sitting in the right rear seat, was asked to step out of the car and the officer started to remove the sheet from over the object in the rear seat. It turned out to be a post office money order writing machine. As he did so Elvin and Richard Criswell fled the scene only to be arrested later. An immediate search of the car disclosed post office rubber dating and cancelling stamps, letters, money orders and money order blanks. The officers at the time of the arrest and search knew of no particular crime that had been committed nor did they obtain an arrest or search warrant. They suspected that appellants and their companions had committed burglary in Milledgeville. They learned at about 8:00 A.M. on the same morning that the post offices at Wayside and Bradley had been burglarized during the night.

The District Court overruled a motion to suppress all of the evidence discovered by the police officers in the automobile, including the pinch bar and money order machine, on the ground that the search contravened the Fourth and Fifth Amendments. Whether this was error turns on the facts surrounding the arrest and search and these facts must be related to three questions. First, when did the arrest take place; second, was the arrest legal under the circumstances; and third, was the search reasonable within the contemplation of the Fourth Amendment as being incident to the arrest. This was the general approach of the Supreme Court in Beck v. State of Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, where the police officers arrested the petitioner and searched his automobile without an arrest or search warrant. The court said:

"There are limits to the permissible scope of a warrantless search incident to a lawful arrest, but we proceed on the premise that, if the arrest itself was lawful, those limits were not exceeded here. * * * The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner\'s arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175-176 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879, 1890; Henry v. United States, 361 U.S. 98, 102 80 S.Ct. 168, 171, 4 L.Ed.2d 134, 138. `The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers\' whim or caprice.\' Brinegar v. United States, supra, 338 U.S. at 176 69 S.Ct. at 1311, 93 L.Ed. at 1891." (379 U.S. at p. 91, 85 S.Ct. at p. 225)

The court also adverted to the principle that the reviewing court must evaluate the peculiar facts of each case in determining the validity of an arrest or search:

"When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would `warrant a man of reasonable caution in the belief\' that an offense has been committed. Carroll v. United States, 267 U.S. 132, 162 45 S.Ct. 280, 288, 69 L.Ed. 543, 555, 39 A.L.R. 790. * * *" (379 U.S. at p. 96, 85 S.Ct. at p. 228)

And, as a part of the test, the court inquired as to what objective fact available to the arresting officers would support a belief that the petitioner was engaged in criminal activity at the time he was arrested. What did the officers see, hear, smell or otherwise perceive that would "give them ground for belief that petitioner had acted or was acting unlawfully"?

Another principle involved stems from the fact that the arrest was not made under a federal statute so the validity of the arrest must be determined by the Georgia law of arrest. United States v. Di Re, 1948, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Hart v. United States, 5 Cir., 1963, 316 F.2d 916; Collins v. United States, 5 Cir., 1961, 289 F.2d 129. The pertinent Georgia law provides that an arrest may be made by an officer where "* * * there is likely to be a failure of justice for want of an officer to issue a warrant." Georgia Code § 27-207.¹

We said in Paige v. Potts, 5 Cir., 354 F.2d 212, dated December 21, 1965, that the Georgia courts may have equated this provision of the Georgia statute with the probable cause standard or engrafted a probable cause provision on the statute. Probable cause was the federal constitutional standard applied there in a habeas corpus proceeding, while here, as stated, the Georgia standard applies to the arrest by state officers for a supposedly state crime. Because Georgia has perhaps adopted a probable cause standard, we will apply both tests, i. e., whether there was likely to be a failure of justice for want of an officer to issue a warrant, and probable cause. On the question of probable cause being a basis for an arrest in Georgia, see Croom v. State, 1890, 85 Ga. 718, 11 S.E. 1035; Pistor v. State, 1963, 219 Ga. 161, 132 S.E.2d 183, and contra: Conoly v. Imperial Tobacco Co., 1940, 63 Ga.App. 880, 12 S.E.2d 398.

Turning now to the facts, it appears that appellants were stopped under circumstances which did not exceed the routine questioning pointed to as being permissible in Rios v. United States, 1960, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688. The sequence of events thereafter included an inconsistent statement regarding the trip from Macon to Atlanta and the discovery of the pinch bar by a visual inspection of the car. A pinch bar is classified as a burglary tool under the Georgia law. Georgia Code § 26-2701; McNabb v. State, 1931, 44 Ga.App. 306, 161 S.E. 369; Farlow v. State, 1939, 59 Ga.App. 881, 2 S.E.2d 500. The officer...