U.S. v. Alden

• Citation: 576 F.2d 772
• Decision Date: 23 May 1978
• Docket Number: No. 77-1882,77-1882
• Parties: UNITED STATES of America, Appellee, v. Terrance Karl ALDEN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 772

576 F.2d 772

UNITED STATES of America, Appellee, v. Terrance Karl ALDEN, Appellant.

No. 77-1882.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1978.

Decided May 23, 1978.

Michael B. Stern, St. Louis, Mo., argued, made rebuttal and filed briefs, for appellant.

Robert D. Kingsland, U. S. Atty., and David W. Harlan (argued) Asst. U. S. Atty., St. Louis, Mo., on brief for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, ^* District Judge.

MATTHES, Senior Circuit Judge.

Terrance Karl Alden was indicted, tried by a jury, and convicted on five counts of armed bank robbery. ¹ He was sentenced to a term of twenty-five years imprisonment on each count, with the sentences to run consecutively. On appeal, Alden contends that the district court erred (1) by not suppressing items of evidence seized in a warrantless automobile search; (2) by not suppressing items of evidence seized in a warrantless search of a trash pile near appellant's residence; and (3) by not suppressing evidence of line-up identifications of appellant. Appellant further contends that the jury's verdict was fatally inconsistent. We reject appellant's contentions and affirm the judgment of conviction.

Appellant did not directly or implicitly in his opening brief challenge the sufficiency of the evidence to warrant submission of the case to the jury. In his reply brief, however, appellant obliquely suggests for the first time that the evidence was not of sufficient reliability to rise to the level of a submissible case. Notwithstanding appellant's failure to appropriately present this issue, we have, with painstaking care, reviewed the full record and hold that the direct and circumstantial evidence unerringly pointed to appellant's guilt on all of the counts, and the jury could and manifestly did reach that conclusion.

I

The notorious series of St. Louis-area bank robberies of which appellant stands convicted were marked by rather extraordinary feats of strength and agility. Wielding a sawed-off shotgun, the robber would customarily vault over the tellers' counter to effect both the theft and his escape. On one occasion, the robber was shot ² in the left side at close range by an off-duty policeman, but completed the hold-up apparently unhindered. As a result of such exploits, the local media dubbed the robber "the Athletic Bandit" and "the Bionic Bandit." The robberies received extensive news coverage and were investigated intensively by the police and the F.B.I.

The diligence of the authorities was ultimately rewarded. Acting on an informant's tip, Detectives Patricia Rice and George Venegoni of the St. Louis Police Department ran a check on two suspects: John Givens and Robert Taylor. While surveilling Givens' residence, the detectives saw appellant, accompanied by Givens, drive up in a Buick registered to Lonnie Lee Taylor, Robert Taylor's wife. Both detectives immediately recognized appellant from witness' descriptions, composite drawings, and bank surveillance photographs, as the bank robber. After parking the Buick in front of Givens' house, appellant furtively took a handgun from the trunk and gave it to Givens. The two then drove off in Givens' Chrysler. After tailing the Chrysler through a circuitous series of right turns, the detectives pulled it over for various license violations and to investigate the handgun and appellant's identity.

Detective Rice approached Givens who apparently began to reach for a gun hidden in a leather pouch he was carrying. She disarmed him, however, and placed him under arrest.

Detective Venegoni approached appellant and asked for identification. Appellant produced an Arizona driver's license issued in the name of Robert Taylor, but bearing a picture of appellant. Venegoni knew the document was false. As a patrol car arrived at the scene, appellant broke and ran, drawing a .44 magnum revolver. Newspaper accounts appended to appellant's reply brief indicate that appellant vaulted over a car and a fence in attempting to escape. He was pursued for several blocks before being captured and disarmed. ³

After booking appellant at the police station, Detective Venegoni, aware that appellant had made a post-arrest phone call, returned to the Buick parked on the street in front of Givens' residence, conducted a standard search of the vehicle, and had it impounded. Appellant complains that the district court should have suppressed the evidence obtained from the search of the Buick. We hold that the district court properly admitted the evidence.

As the Supreme Court has recently noted, the "fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances." United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977). That inquiry is necessarily satisfied when a search or seizure is predicated on the issuance of a warrant based on probable cause by a neutral and detached magistrate. See Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Helberg, 565 F.2d 993, 996 (8th Cir. 1977). "But (the Supreme Court) has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts." United States v. Chadwick, supra, 433 U.S. at 12, 97 S.Ct. at 2484. This distinction regarding automobiles is based partly on vehicular mobility, which may create exigencies making a warrant impracticable, and partly on the diminished expectation of privacy associated with the automobile. Id; United States v. Young, 567 F.2d 799, 802 (8th Cir. 1977); United States v. Helberg, supra. In certain circumstances the automobile distinction may even justify searches not founded on probable cause. South Dakota v. Opperman, 428 U.S. 364, 370 n.5, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (inventory search).

On the instant facts, it is clear that Detective Venegoni's search of the Buick was reasonable and must be upheld. Given the information he possessed: the informant's tip, the observation of appellant driving the Buick, the recognition of appellant as the bank robber, the observation of the surreptitious gun transfer, appellant's impersonation of the spouse of the Buick's owner, and appellant's armed attempt at escape, Detective Venegoni had probable cause to believe that the Buick contained both weapons and evidence relating to the bank robberies. See United States v. Young, supra; United States v. Kelly, 547 F.2d 82, 84 n.4 (8th Cir. 1977); United States v. Pheaster, 544 F.2d 353, 373 (9th Cir. 1976). In addition, exigent circumstances dictated that a search of the vehicle be conducted as swiftly as possible. The Buick was parked on a public street in front of the residence of a suspected accomplice of appellant. Appellant was using a driver's license belonging to another suspect, Robert Taylor, and was driving a car registered to Taylor's wife. Moreover, Detective Venegoni knew that appellant had made a phone call after being taken to the police station. Thus, Venegoni could reasonably conclude that appellant had accomplices at large who might remove the Buick or destroy whatever evidence it contained. See United States v. Collins, 549 F.2d 557, 560 (8th Cir.), cert. denied, 431 U.S. 940, 97 S.Ct. 2656, 53 L.Ed.2d 259 (1977); United States v. Pheaster, supra at 374.

We hold that Detective Venegoni's warrantless search of the Buick was based on probable cause and necessitated by exigent circumstances. It was, therefore, a reasonable search and did not infringe on appellant's Fourth Amendment rights.

The government contends that the Buick search can also be sustained as an inventory search of a car subject to impoundment. See South Dakota v. Opperman, supra, 428 U.S. at 375-76, 96 S.Ct. 3092; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Because we sustain the search of the Buick on other grounds, we need not reach that issue.

II

Shortly after appellant's arrest, F.B.I. agents and various local law enforcement officers went to appellant's Leasburg, Missouri, residence in an attempt to locate and interview Lonnie Lee Taylor. The house was surrounded as a precaution against armed resistance from possible accomplices of appellant. A Missouri highway patrolman, positioned near a pile of partially burned trash, noticed a piece of cardboard listing radio scanner channels which he brought to the attention of the F.B.I. agents. The cardboard, several pieces of paper, a pocket watch, and a medical arm band were subsequently seized from the trash pile without a warrant. Some of these items were introduced into evidence over appellant's objection.

Appellant contends that the district court erroneously declined to suppress the evidence taken from the trash pile. The government argues that the seizure of the evidence was justified under either of two theories: that the items were abandoned and that the items were in plain view. We need only discuss the first of these arguments.

The trash pile was apparently within the curtilage of appellant's residence. The U. S. Magistrate who heard evidence on appellant's motions to suppress found that the government had sustained its burden of showing by clear and unequivocal evidence that appellant had abandoned the items in the trash pile. As a result, the Magistrate concluded that appellant was without standing to assert the protections of the Fourth Amendment with respect to the bona vacantia found in the trash pile. See generally Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Friedman v. United States, 347 F.2d 697, 704-06 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965). The district court adopted the findings and conclusions of the U. S. Magistrate.

" Abandonment is...