Turk v. United States

• Decision Date: 27 August 1970
• Docket Number: 19889,19873,19905.,No. 19872,19872
• Citation: 429 F.2d 1327
• Parties: William Donald TURK, Appellant, v. UNITED STATES of America, Appellee. Roswell William WIXOM, Appellant, v. UNITED STATES of America, Appellee. Robert Douglas BRITTON, Appellant, v. UNITED STATES of America, Appellee. George Leo COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

429 F.2d 1327 (1970)

William Donald TURK, Appellant, v. UNITED STATES of America, Appellee.

Roswell William WIXOM, Appellant, v. UNITED STATES of America, Appellee.

Robert Douglas BRITTON, Appellant, v. UNITED STATES of America, Appellee.

George Leo COLEMAN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19872, 19873, 19889, 19905.

United States Court of Appeals, Eighth Circuit.

August 27, 1970.

Samuel P. Caniglia, of Caniglia & Seminara, Omaha, Neb., made argument for appellant William Donald Turk.

Samuel V. Cooper, Omaha, Neb., made argument for appellant Roswell William Wixom.

John Grant, of Kelley, Grant, Costello & Dugan, Omaha, Neb., made argument for appellant Robert Douglas Britton.

David S. Lathrop, of Lathrop & Albracht, Omaha, Neb., made argument for appellant George Leo Coleman.

One brief was filed by all the above attorneys for the appellants with the exception that Michael J. Dugan, of Kelley, Grant, Costello & Dugan, Omaha, Neb., was on the brief instead of Mr. Grant of this firm who made the argument.

William J. Tighe, Asst. U. S. Atty., Omaha, Neb., for appellee; Richard A. Dier, U. S. Atty., was on the brief with Mr. Tighe.

Before MATTHES, Chief Judge, and LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Defendants appeal their conviction for possession of counterfeit notes of the United States with intent to defraud in violation of 18 U.S.C.A. § 472. The defendants were arrested in Omaha, Nebraska, on the morning of November 16, 1968, in possession of counterfeit $20 bills totalling approximately $80,000. The basic issue on appeal, which is raised by all defendants, concerns the existence of probable cause for their arrest to justify the warrantless search. Error is also asserted by the defendant Wixom as to the sufficiency of the evidence to sustain his conviction and in the trial court's denial of a requested instruction on constructive and joint possession. We reverse and remand for further proceedings on the question of probable cause.

The testimony of the government relating to the arrest and search, produced at the hearing on the motion to suppress the evidence seized, may be briefly summarized. Sometime prior to the arrest, Sgt. Perry of the Omaha Police Department had been told by a fellow police officer, Sgt. Gentleman, that there had been reports of Collins Radio Laboratory checks being passed in the Cedar Rapids, Iowa, area. Collins Radio Laboratory is located in Cedar Rapids. On October 24, 1968, an Omaha photo engraving company had reported to the police that the defendant Wixom, under what was later discovered to be a false identity, had brought to the company a Collins Radio check, and purchased a negative of the check with the amount and the name of the payee taped out. The following day Wixom was observed by Omaha police entering the photo engraving company; he was driven to and from the company by the defendant Coleman, who was known, at the time of the arrest, to be in the printing business. Surveillance of these defendants was reactivated on November 15, presumably because of the passing of Collins Radio checks in the Cedar Rapids area. Coleman was stopped in Omaha that day on the pretext that he was driving a stolen car. It was then observed by a police officer that Coleman had a green substance under his fingernails. He was immediately released and thereafter followed to the Town House Motel, Room 116. At approximately 1:00 o'clock in the afternoon the defendant Turk, known by local police to be a "dangerous character," arrived in a Buick convertible with an Iowa license plate and was observed going into the same room. The registration of this car was traced to Lynn County, Iowa (of which Cedar Rapids is the county seat). The defendants Britton and Wixom were also observed entering Room 116. Britton resembled an individual wanted in Cedar Rapids. The police carried on the surveillance throughout the day and evening. During the day Coleman was observed carrying a light bar and later a machine (which was subsequently identified to be a photocopier) into the room. The evidence showed that later in the evening the officers conducting the surveillance could hear machinery running in the room.

At 1:30 a. m. on the following morning, November 16, 1968, the four defendants emerged from the motel room carrying attache cases and suitcases to their cars. When they placed the cases in their two vehicles the officers conducting the surveillance became concerned over the defendants' impending departure. Without warrants the police drew their guns and placed the defendants under arrest. The defendant Turk was brought back to his car and asked what he had put in the trunk, which was still partially open. Turk denied ever having seen a black attache case within the trunk and volunteered to open it. When he did so, the officers observed that it was filled with counterfeit $20 bills in sheets, six to a sheet. The men were then again informed they were under arrest and taken to the Central Police Station. The government urges that the warrantless arrest and search were justified by the probable cause of the police to believe that the defendants were departing the scene with evidence relating to the printing of counterfeit checks.

In its appellate brief the government refers to additional evidence of probable cause contained in the transcript of the preliminary hearing held before the United States Commissioner on December 3, 1968. This testimony was not presented to the district court and was not otherwise made a part of the record on this appeal. Fed.R. App.P. 10(a). However, in the interest of justice this court may order the record enlarged for purposes of reviewing the issue of probable cause. See Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 919 n. 19 (1968); Gatewood v. United States, 93 U.S.App. D.C. 226, 209 F.2d 789, 792-793 (1953).

The preliminary hearing transcript discloses that in the latter part of September, 1968, Sgt. Perry was assigned by a Capt. Platner to investigate "counterfeited or spurious checks that were being passed in the city of Omaha." At first Perry said he believed these were Collins Radio Laboratory checks. On cross-examination he said these "spurious" checks were Allstate Insurance Company checks passed in Omaha. He said he learned of these checks through the F.B.I. He started his investigation with the surveillance of Wixom because of the report that Wixom had purchased a negative of a Collins Radio check.

The search itself was wholly dependent upon and incident to the warrantless arrest. It is well settled that state law, within the confines of the United States Constitution, determines the validity of arrests without warrants. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Nebraska law permits an arrest without warrant only where the crime is committed in the presence of the arresting officer or where a felony is committed of which he had reasonable cause to believe the defendant guilty.¹ Neb.Rev.Stats. § 29-404.02 (1967 Cum.Supp.). State v. Beasley, 183 Neb. 681, 163 N.W.2d 783 (1969); State v. Watson, 182 Neb. 692, 157 N.W.2d 156 (1968); State v. Cook, 182 Neb. 684, 157 N.W.2d 151 (1968). Therefore, it must be determined from the record whether the officers possessed sufficient knowledge of facts and circumstances to warrant a prudent man in believing that the defendants had committed a felony. This is the test of probable cause. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

In evaluating all of the evidence to justify the warrantless arrest and search, we adhere to well-established standards. First, the government concedes that the disclosure of the counterfeit bills, discovered subsequent to the arrest, cannot serve as probable cause to justify the arrest. See Henry v. United States, supra. Second, we approach the record with the admonition that where the search is based upon a police officer acting without benefit of a warrant and therefore without a magistrate's determination of probable cause, the evidence must be of a more "persuasive character." Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Miller v. Sigler, 353 F.2d 424 (8 Cir. 1965), cert. denied 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966). As pointed out in Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964):

"An arrest without a warrant by passes the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search too likely to be subtly influenced by the familiar shortcomings of hindsight judgment. `Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed.\' Wong Sun v. United States, 371 U.S. 471, 479-480, 83 S.Ct. 407, 9 L.Ed.2d 441."

Third, where information on which the police base the warrantless arrest is not obtained by direct observation, probable cause must be established by (1) proof of the reliability of the informant and (2) the underlying circumstances as to how the informant came by his knowledge. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

The difficulty with the present record is the ambiguity as to the underlying circumstances showing how the Omaha police knew any kind of ...