Schutz v. United States, 9670.

• Decision Date: 09 July 1968
• Docket Number: No. 9670.,9670.
• Parties: Chester Arthur SCHUTZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

395 F.2d 225 (1968)

Chester Arthur SCHUTZ, Appellant, v. UNITED STATES of America, Appellee.

No. 9670.

United States Court of Appeals Tenth Circuit.

May 29, 1968.

Rehearing Denied July 9, 1968.

Michael H. Jackson, Denver, Colo., for appellant.

John W. Raley, Jr., Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.

Before PICKETT, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

Appellant was convicted by a jury of unlawfully entering the First State Bank of Pond Creek, Oklahoma, with intent to commit a felony and of stealing the sum of $1,853.72 from that bank. (18 U.S.C. § 2113(a) and § 2113(b)). This is a direct appeal from those convictions.

A chronological statement of certain pertinent facts, as disclosed by the record, should first be set out. About 5:00 o'clock p. m., Saturday, January 29, 1966, appellant and co-defendant Hall were observed by the city police at a residence in south Wichita, Kansas. On this occasion the two were observed loading luggage, clothing and other articles into a 1965 blue Ford sedan and a 1966 yellow Buick Wildcat automobile, both cars bearing Texas license tags. Photographs of these activities were taken by the observing officers, which photographs were introduced and admitted, at the trial, as evidence against appellant. Schutz, at this time, was observed carrying a green duffle bag over his shoulder and in his hand a black satchel with tool handles protruding therefrom. A similar satchel was observed being carried by Hall. All of these items were placed in the trunk of the Buick car.

During the evening of January 30, 1966, several residents of Pond Creek, Oklahoma, observed either or both a late model yellow Buick and a 1965 blue Ford on the streets of that city. Sometime after midnight of that same night the Pond Creek town marshal discovered that the First State Bank had been entered by the breaking open of a door. Later, it was determined that the sum of $1,853.72 in coins had been taken from the bank. Upon investigation, various tools and other items, including a black bag, a 48-ounce "Craftsman" hammer and a 5/8-inch punch were found in the bank. A green duffle bag was found at the same time in an alley near the bank. At the trial an officer of the Texas Public Safety Department identified the green bag, the hammer and the punch as the same items he had observed in Schutz's residence in Austin, Texas, on August 30, 1965, when he made a search of the residence for narcotics.

The record further discloses that the Wichita police continued their surveillance of the Wichita residence and did not see either Schutz or Hall again until about 11:00 o'clock p. m. on February 1. The following morning these officers were able to observe the same two cars as above described but the license tags had been changed. The Buick car then bore a 1966 Texas tag and the Ford bore an Oklahoma tag, which had been stolen on the night of the bank burglary. The officers, at the time, also observed Schutz and Hall taking things from the trunks of the two cars into the house. A number of photographs were again taken by these officers, all of which corroborated their testimony about what they observed on this occasion.

The evidence also shows that when the bank vault was broken into many of the safety deposit boxes were ransacked and property taken therefrom consisted of rolls of coins, a diamond ring and loose coins in envelopes. On either February 1 or 2 Hall gave a diamond ring, rolled coins in the amount of $45.00 and nine loose coins, which were collector's items, to a lady in Wichita to dispose of. She sold the ring and coins to a Wichita coin collector and during the investigation all were recovered from the collector. The antique coins and the diamond ring recovered were identified in the trial as the coins and ring contained in the bank vault.

Appellant's attack here may be summarized: (1) That both the Kansas and Texas searches were invalid; (2) The evidence was insufficient to sustain the verdict; (3) Error in receiving certain government exhibits into evidence; (4) Bias on the part of the trial judge; and (5) Error in instructing the jury.

Prior to trial Schutz filed a motion to suppress certain evidence and an evidentiary hearing was had upon the motion. There it was contended that the government intended to use the fruits of both the Texas and Kansas searches in the trial to follow. The argument presented there was that the affidavit used to obtain the Texas search warrant was insufficient upon its face and that the officers used unnecessary force in executing the warrant. The first argument presents a legal question and the second, as we will later demonstrate, is a factual question.

The evidence adduced upon this motion shows that on August 30, 1965, two Texas state law enforcement officers procured a search warrant, upon the basis of an affidavit filed by them, from a local magistrate at Austin, Texas. The affidavit and warrant were on a one page printed form with appropriate blank spaces to be filled in by the affiant and the magistrate. The affidavit described the premises to be searched and included "all other outbuildings and motor vehicles appurtenant thereto." It further described the premises as "the building, house or place of Chester Schutz * * *." The purpose of the search was to discover narcotic drugs and the factual information given by affiants had been obtained chiefly from an informant.

The evidence adduced was conflicting as to the force used by the officers in entering the house but it is apparent from the ruling of the trial judge that he accepted the testimony of the agents in this regard, which he had the right to do and which we accept. The contention as to the use of undue force is thus disposed of.

We have carefully examined the Texas search warrant and the affidavit in connection therewith and conclude that they meet the constitutional requirements. This conclusion was reached after an examination of the affidavit and warrant in light of the guidelines set out in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and other cases that have followed. Under the Aguilar case, we may consider only information brought to the attention of the magistrate. Such affidavit in support of the issuance of a search warrant "may be based on hearsay information and need not reflect direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was `credible' or his information `reliable.'" Id. at 114, 115, 84 S.Ct. at 1514.

The affidavit in support of the Texas search warrant was sworn to by Texas state officers before a magistrate acting under state law. The search warrant was issued and executed pursuant to state law. The affidavit in...