Staples v. United States

• Decision Date: 10 July 1963
• Docket Number: No. 20114.,20114.
• Citation: 320 F.2d 817
• Parties: Allen James STAPLES and Frank Joel McNamara, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

320 F.2d 817 (1963)

Allen James STAPLES and Frank Joel McNamara, Appellants, v. UNITED STATES of America, Appellee.

No. 20114.

United States Court of Appeals Fifth Circuit.

July 10, 1963.

James S. Taylor, Jacksonville, Fla., Allen J. Staples, Frank J. McNamara, Raiford, Fla., for appellants.

Samuel S. Jacobson, Asst. U. S. Atty., Jacksonville, Fla., Edith House, U. S. Atty., Southern Dist. of Florida, for appellee.

Before RIVES, CAMERON and HAYS^*, Circuit Judges.

RIVES, Circuit Judge.

Staples and McNamara were convicted by a jury's verdict of conspiring to possess, conceal, utter and sell counterfeit obligations of the United States in violation of Section 371, Title 18 U.S.Code, and of possessing and uttering counterfeit obligations of the United States in violation of Section 472, Title 18 U.S. Code. Upon appeal, they present four questions: 1) whether certain evidence should have been suppressed because obtained as a result of unreasonable search and seizure; 2) whether the district court abused its discretion in refusing to grant them a continuance; 3) whether the district court erred by excessive participation in the trial; and 4) whether the court erred in denying each defendant's motion for judgment of acquittal. We think that decision of the appeal really turns on the first question, that is, the reasonableness vel non of search and seizure.

At about 10:30 P.M. on July 5, 1960, a young sailor named Roy Edgar Cox was arrested by the Jacksonville Beach police for investigation of passing a counterfeit $20.00 Federal Reserve Note. Cox and the note passed by him were taken to the Jacksonville Beach police station. United States Treasury agents who were immediately called into the case identified the impounded note as identical to a counterfeit bill enough of which had appeared to cause an area alert.

Under questioning, Cox informed the agents that the bill for which he was arrested was one of certain similar bills which had been given him by three young men. Cox further said that while he was not sure the gift bills were counterfeit, he "assumed that there was something wrong with them at the time." Cox described the three men as young white men of average size, one with very bushy black hair, and one with brown curly hair, and all wearing plaid sport shirts. He also stated that they were driving a 1957 light color two-door Ford in which he had ridden with them to Jacksonville and back to Jacksonville Beach.

The police then set out to canvass the downtown Jacksonville Beach bars in an effort to locate the three men. At Smitty's Beach Club they found another of the bills and received a generalized description of the party who passed the bill. They continued to the Rendezvous Bar where they saw McNamara, who fit the descriptions given, receiving change from a large bill. They then asked the waitress for the bill which she had just received from McNamara and, upon examining it, found it to be identical to the other known counterfeits.

McNamara was then arrested and searched. The search disclosed a large amount of money in small bills, the registration to a 1957 Ford, and a set of car keys. Meanwhile, the police were informed that when McNamara was arrested a man who was with him had slipped out the door. This other individual, whose name proved to be Frank Hilton, was taken into custody about a half a block from the Rendezvous Bar.¹ McNamara and Hilton were both arrested and booked for "investigation of passing counterfeit notes." There was no counterfeit money found on either McNamara or Hilton.

The description of the 1957 Ford having been broadcast over the police radio, it was located almost immediately, parked in front of the Vagabond Motel. The officers searched the unlocked car, without a warrant. They found on the floor in the front a key to Room 14 of the Vagabond Motel. In the glove compartment they found a Western Union money order receipt showing that someone named Allen Staples had on July 5, 1960, sent $600.00 from Jacksonville Beach to Miami. They found no counterfeit money.

The officers then proceeded to Room 14 of the Vagabond Motel, after finding out by telephone that Room 14 was registered to McNamara. At Room 14 they knocked on the door and were invited in. There they were faced by a very bushyhaired, undershort-clad young man who identified himself as Staples. He was immediately placed under arrest "for investigation" and was later booked for investigation of passing counterfeit notes. Visible when the officers entered the room was a great quantity of inexpensive, apparently new miscellaneous items of merchandise scattered about.

The officers then proceeded to search the room, finding, in addition to the miscellany, 143 counterfeit $20.00 notes (in a brown bag in a dresser drawer), $127.00 legitimate money in small bills and coins, and a matchbox of marihuana.

None of the men arrested had been charged with any crime but had been booked for investigation of passing counterfeit bills.

A timely motion to suppress the evidence seized from the automobile and the motel room was made on behalf of each defendant, and was denied in toto.

The Government insists that each step in the investigation followed justifiably from the preceding step. The arrests of McNamara and of Hilton bore out substantially leads supplied by Cox, and indicated that another man was still at large. It was urgent to arrest that man before he escaped and before he disposed of any remaining counterfeit bills. The Government points out also that the investigation took place at an hour when it was difficult to obtain a search warrant, and during a holiday period with attendant trying conditions for a summer beach resort police force. We are nonetheless constrained to hold that both searches were unreasonable as to McNamara and that at least the search of the motel room was unreasonable as to Staples.

The so-called "silver platter" doctrine has been repudiated and the Weeks doctrine² has been extended to require the exclusion of evidence in a federal criminal trial when it is obtained by State officers during a search which, if conducted by federal officers, would have invaded a person's immunity from unreasonable searches and seizures under the Fourth Amendment.³

In the recent case of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed. 2d 726, the Court said:

"The evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists `where "the facts and circumstances within their the officer\'s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.\' Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1311, 93 L. Ed. 1879 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925) * * *."

See also, Wong Sun v. United States, 1963, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441.

The Government seeks to justify the search of the automobile as incident to a lawful arrest of McNamara. There are at least two answers, each independently sufficient. First, at the time of the search of the automobile, McNamara was not under lawful arrest, but had been booked for "investigation of passing counterfeit notes." Perhaps McNamara could have been validly arrested for passing the counterfeit bill, but what we said in Collins v. United States, 5 Cir., 1961, 289 F.2d 129, 132, is pertinent here.

"We need not decide whether Collins could have been so validly arrested for the evidence does not show that either of those charges was ever placed against him. Nor does the evidence show that he was ever

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