Salvador v. U.S.

• Decision Date: 05 December 1974
• Docket Number: Nos. 74-1309,74-1310,s. 74-1309
• Citation: 505 F.2d 1348
• Parties: Elias Quesada SALVADOR, III, Appellant, v. UNITED STATES of America, Appellee. Franklin Michael EINFELDT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1348

505 F.2d 1348

Elias Quesada SALVADOR, III, Appellant, v. UNITED STATES of America, Appellee.

Franklin Michael EINFELDT, Appellant, v. UNITED STATES of America, Appellee.

Nos. 74-1309, 74-1310.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 9, 1974.

Decided Dec. 5, 1974.

Steven C. Cross, Des Moines, Iowa, for appellants.

George H. Perry, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, ^* Senior District Judge.

BRIGHT, Circuit Judge.

Three men participated in the armed robbery of the First Federal State Bank, River Hills Auto Branch, in Des Moines, Iowa, on January 24, 1974. Des Moines police received notification of the robbery and a description of the robbers as black men as the bandits fled the bank. As the result of coordinated efforts, the police pursued the suspects who were fleeing the area of the robbery in an automobile. With the police in close pursuit, these suspects exited their automobile and fled on foot toward an apartment complex in Des Moines known as Arlington Arms Apartments. Police immediately entered the apartment building and ultimately apprehended two of the suspects-- the appellants Elias Quesada Salvador, III, and Franklin Michael Einfeldt-- in a second floor apartment and apprehended the third suspect, Marcus Louis Howell, as he came out of an apartment on the third floor. All three men were indicted for armed robbery of a bank insured by the Federal Deposit Insurance Corporation in violation of 18 U.S.C. 2113(d). Howell pleaded guilty while Salvador and Einfeldt jointly stood trial and were convicted by a jury and sentenced to 15 years' imprisonment. Salvador and Einfeldt bring this appeal. We affirm the convictions.

The appellants raise two contentions on appeal:

(1) incriminating physical evidence seized from them when they were apprehended in the second floor apartment of the Arlington Arms and testimony of what the police heard and saw in the apartment should have been suppressed because the warrantless entry violated the appellants' fourth amendment rights; and

(2) the prosecutor made a racial slur in his rebuttal argument to the jury, thereby denying appellants a fair trial in violation of the Due Process Clause of the fifth amendment.

I.

We will relate the factual setting as it bears on the first issue. Donning ski masks, two of the robbers entered the bank at 3:30 P.M. January 24, 1974. A third man, also wearing a ski mask, manned the getaway car, a dark brown Chevrolet, at the bank's drive-up facility. Howell, who pulled his ski mask over his face as he entered the bank, was subsequently identified by a bank officer who had observed him putting the mask on. The bandits escaped with $9,517, including three packets of 'bait money' (paper currency whose serial numbers have been recorded for tracing purposes). As the robbers fled, a teller notified police by a silent bank alarm and a drive-up teller recorded the license plate number of the escape vehicle. As a result of the alarm, police cars converged on streets leading away from the bank. In the meantime, a bank officer telephoned details of the robbery and the description of the bandits and their getaway cart to police headquarters. This information was immediately radioed to police cars. Because of the location of a bridge in Des Moines, police expected the robbers to escape on Second Avenue. Two officers in a patrol unit observed a blue Plymouth station wagon enter Second Avenue from Forest Avenue at a high rate of speed and at virtually the same moment also learned over their police radio that the bandits had abandoned their initial getaway car a short distance away. Surmising that the robbers had changed to this car, this police unit began pursuing the blue station wagon.

Several other police cars soon joined in the high speed chase of the station wagon. The vehicle made a left turn against a red light, proceeded west on College Street, and finally turned north on to Arlington Avenue to the Arlington Arms Apartments where the driver attempted to turn into the apartment parking lot. He was unable to negotiate the turn, and the car came to a stop against the guywire of a telephone pole at the entrance to the parking lot of the apartment building. The three occupants left the vehicle and ran toward the apartment building. Police saw at least one of the fleeing men enter the building and assumed that the other two occupants of the car had likewise sought refuge in the apartment building. One of the suspects literally ran out of his shoes, leaving a pair of shoes on the parking lot. Additionally, police observed that the suspect entering the building wore maroon-colored trousers and carried a white sack, presumably containing the stolen money. Only about three minutes elapsed from the robbery to the end of the automobile chase.

The police entered the apartment house and soon concentrated their search on the four apartments on the second floor, where a police officer thought he heard the sound of a door shutting. An officer announced himself as a policeman at the first door, apartment No. 6, but then knocked the door open when he heard the sound of a key chain being fastened. He discovered only a frightened white woman and her children. This lady advised police that a second apartment, No. 5, was unoccupied. Hearing noises from one of the other two apartments on the second floor, the police concentrated their search on the two south-side apartments, Nos. 7 and 8. During this period, several more policemen arrived on the scene. An officer knocked at the door of apartment No. 8 but received no response. He then proceeded to the next apartment, No. 7, knocked on the door, and announced himself as a policeman. Conversation, which had been heard coming from the apartment, suddenly stopped. After a brief pause, the door opened-- possibly from the force of the officer's knocking. This officer and another policeman looked into the apartment and saw a number of black men and a black woman. Several of the men wore marooncolored trousers and one man was in his stocking feet. The two officers entered the apartment, checked the man without shoes, and found that his feet were dry. One officer proceeded toward the bedroom area and discovered a black man sitting on the toilet. This man, later identified as defendant-Einfeldt, was breathing heavily and sweating profusely. Einfeldt was without shoes and his feet were wet. The officer discovered a second man in the back bedroom also breathing heavily and perspiring. He was bleeding from a cut on his hand and wore maroon-colored pants. A military coat similar to one described as having been worn by one of the suspects lay on the nearby bed. This second man proved to be the defendant-Salvador. These two men were placed under arrest.

The police apprehended the third suspect, Marcus Louis Howell, on the third floor. He had broken into an apartment where he had left the stolen money and was apparently attempting to walk out of the building, but police detained him and thereafter placed him under arrest.

After the arrest of the suspects, the police obtained a consent from the apartment tenant to search the apartment on the third floor which Howell had entered, and police found all of the money stolen from the bank. A subsequent thorough search of apartment No. 7, pursuant to a search warrant, revealed a loaded handgun matching the description of the weapon used in the bank robbery located in the bedroom where the police had apprehended Salvador.

Appellants claim that the policemen unlawfully entered apartment No. 7 and therefore the trial court should have granted appellants' motion to suppress as evidence any article later seized in that apartment and the testimony of what the policemen heard and saw while in the apartment. We assume, only for the purposes of this case, as have the parties, that an illegal entry into the apartment would have required suppression of this questioned evidence.

In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court held that a police entry into a dwelling without a warrant may be justified if 'exigent circumstances' make the obtaining of a warrant impractical. In Hayden, police were informed that an armed robbery had occurred and that the suspect had entered a house just five minutes before the police arrived at the house. The Court explained:

The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape. (Id. at 298-299, 87 S.Ct. at 1646.)

In Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), the District of Columbia Circuit enunciated six considerations that are particularly relevant in determining whether a warrantless entry into a dwelling by police is reasonable under the fourth amendment. The criteria are:

1) that a grave offense is involved;

2) that the suspect is reasonably believed to be armed;

3) that a clear showing of probable cause exists to believe the suspect committed the crime in question;

4) that there is a strong reason to believe the suspect is in the premises being entered;

5) that a likelihood exists that the suspect will escape if not swiftly apprehended; and

6) that the entry, though not consented to, is made peaceably.

(Id. at 392-393.)

The facts in the instant case satisfy each of the Dorman criteria: 1) the crime, armed robbery, was obviously a serious crime; 2) one of the suspects brandished a gun during the robbery which had occurred only minutes before the warrantless entry into apartment No. 7 and police could...