U.S. v. Allison

• Decision Date: 05 May 1980
• Docket Number: No. 79-5556,79-5556
• Citation: 616 F.2d 779
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Wayne ALLISON and Sharon Lynn Freedman, Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 779

616 F.2d 779

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Wayne ALLISON and Sharon Lynn Freedman, Defendants-Appellants.

No. 79-5556

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

May 5, 1980.

Thomas D. L. Collins, Columbus, Ga. (Court-appointed), for Allison.

Donald Michael Samson, Columbus, Ga. (Court-appointed), for Freedman.

William P. Adams, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before HILL, GARZA and THOMAS A. CLARK, Circuit Judges.

PER CURIAM:

On March 24, 1979, Defendants Thomas Wayne Allison and Sharon Lynn Freedman, along with another couple, were traveling from Nashville, Tennessee to Columbus, Georgia. Near Pine Mountain, Georgia, they stopped at a self-service gasoline station, purchased $2.38 worth of gasoline, and Defendant Freedman attempted to pay the After the defendants left the station, the manager telephoned the Harris County Sheriff's Department requesting that an officer contact him. In response, the Pine Mountain Chief of Police, Chief Bernatovitz, came to the station at which time the manager related the incident to him and gave the chief a description of the occupants and of the vehicle in which they were traveling. Chief Bernatovitz then radioed the Harris County Sheriff's Department, spoke with Deputy Sheriff Collier, related the information to him, and requested that Deputy Collier keep a lookout for the car fitting the description of that given by the station manager. Deputy Collier left the courthouse in his patrol car and soon thereafter saw a car and occupants fitting the description given by Chief Bernatovitz. He followed the car, radioed Lieutenant Seville for assistance and, when assistance came, Deputy Collier ordered the vehicle to stop.

manager of the station with a $20.00 bill. The manager suspected the bill of being counterfeit and refused to take it. Freedman went back to the car and returned with a $10.00 bill which the manager accepted.

Deputy Collier asked the driver, Allison, to get out of the car and explained to Allison that he had received a report that one of the occupants had tried to pass a counterfeit $20.00 bill in Pine Mountain. Allison responded, "yes, the man in Pine Mountain said the bill looked funny." Allison then took out his billfold and produced a $20.00 bill and handed it to Deputy Collier. Deputy Collier then asked if he had any more and Allison produced two additional counterfeit $20.00 bills. Deputy Collier placed Allison under arrest and gave him Miranda warnings.

After Allison had been placed under arrest, Deputy Collier asked him if he would mind if he looked in the trunk of Allison's car. Allison said no (that he (Allison) would not mind). Allison removed the keys from the ignition and opened the trunk. Deputy Collier then searched the trunk and came across a travel shaving kit containing 117 counterfeit $20.00 bills. Another counterfeit $20.00 bill was found in the back seat of the auto. At that time, all occupants of the vehicle were taken to jail.

Three days later, an agent for the United States Secret Service visited the manager of the service station with two groups of photographs. One group of photographs consisted of six black and white photographs of females out of which the manager chose Mrs. Freedman's picture. The other group consisted of seven black and white photographs of men, four of which were individuals with mustaches and beards, as Allison had. Of these four photographs each contained date and location information on the identification plate hung around the subject's neck, as follows: Cobb County, Georgia, dated 1-26-69; DeKalb County, July 14, 1971; and two photographs indicating Harris County, Georgia, March 24, 1979. One of these latter two was of Allison and was identified by the station manager.

On April 30, 1979 a three count indictment was returned against both Allison and Freedman which charged them with (1) attempting to pass a counterfeited $20.00 Federal Reserve Note in violation of 18 U.S.C. §§ 2 and 472, (2) possessing 121 counterfeited Federal Reserve Notes in violation of 18 U.S.C. §§ 2 and 472, and (3) conspiring to possess and pass counterfeited Federal Reserve Notes in violation of 18 U.S.C. § 371. Both defendants were tried together before a jury and Allison was found guilty on all three counts, but Freedman was convicted only of Count II, the possession count. Upon Allison's motion for judgment of acquittal based on the acquittal of Freedman on the conspiracy count, the District Court set aside Allison's conviction on Count III. Allison was sentenced to two 3-year concurrent terms and Freedman was sentenced to 1 year and 1 day.

ALLISON'S APPEAL:

THE STOP AND SEARCH

Allison contends that the District Court erred in denying his motion to suppress the counterfeit bills and in denying Allison next contends that the production of three counterfeit $20.00 bills from his wallet, in response to Deputy Collier's inquiry, did not give Deputy Collier probable cause to place Allison under arrest. Allison argues that possession of counterfeit bills without more is not a crime and, since Deputy Collier had no firsthand knowledge of Allison's intent to defraud (by attempting to pass the bills), he therefore had no legally sufficient reason to believe a crime had been committed. Probable cause for an arrest exists "when reasonably trustworthy facts and circumstances are within the knowledge of the arresting officer to warrant a man of reasonable caution in the belief that an offense has been . . . committed." U. S. v. Agostino, 608 F.2d 1035, 1037 (5th Cir. 1979) citing Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). As previously discussed, Deputy Collier's lack of firsthand knowledge adds nothing to Allison's argument. Although mere possession of counterfeit money is not a crime, when possession is coupled with reliable information that the possessor has attempted to pass the bill as genuine, the officer in the field is justified in concluding that an offense has been committed. Once Allison exhibited the three counterfeit $20.00 bills, Deputy Collier had probable cause to arrest him.

his motion to suppress the in-court identification of him by the station manager. Allison's attack on the discovery and introduction into evidence of the counterfeit bills rests on three distinct legal theories. First of all, Allison contends that Deputy Collier's stopping of his vehicle required probable cause and that probable cause can not be based upon double hearsay. Relying upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Allison argues that Deputy Collier had no personal knowledge of the attempted passing nor did he have information from anyone with such knowledge. Allison's reliance on Aguilar requisites for valid search warrants is misplaced. A police officer may make an investigative stop of an individual if he reasonably suspects that the individual is involved in criminal activity. Probable cause is not required to justify an investigative stop; reasonable suspicion is sufficient. United States v. Hall, 557 F.2d 1114, 1116 (5th Cir. 1977). Nor was the stop unreasonable simply because Deputy Collier acted on hearsay knowledge. Reasonable suspicion may exist on the collective knowledge of the police when there is reliable communication between the officer supplying the information and the officer acting on that information. See U. S. v. Agostino, 608 F.2d 1035 (5th Cir. 1979); U. S. v. Preston, 608 F.2d 626 (5th Cir. 1979); U. S. v. Ashley, 569 F.2d 975 (5th Cir. 1978); U. S. v. Nieto, 510 F.2d 1118 (5th Cir. 1975); Moreno-Vallejo v. U. S., 414 F.2d 901 (5th Cir. 1969). Here, the information acted upon had been personally given by the manager of the service station to Chief Bernatovitz who in turn accurately transmitted the information to Deputy Collier. Under these circumstances, Deputy Collier had reasonable suspicion to stop the car with the characteristics and occupants fitting the description of that given to him.

Lastly, Allison contends that his consent to search the trunk of the automobile was not voluntarily given. Allison asserts that the consent was not voluntary because (1) he was under arrest, (2) he was not informed of his rights to refuse consent to the search, (3) two police vehicles and two armed police officers were present, and (4) he did not aid in the search.

Although Allison also bases his consent issue on his contention that the arrest was illegal, we have held that the arrest was legal and therefore we are not faced with the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Instead, we must look to the totality of the circumstances to determine if the consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Although Allison was under arrest at the time he consented, that, of itself, is not sufficient to establish that his consent was involuntary. U. S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); U Regarding knowledge of the right to refuse consent, the Supreme Court has held that "while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent." Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973); U. S. v. Garcia, 496 F.2d 670 (5th Cir. 1974). Here, no additional factors such as age or education have been shown which would demonstrate Allison's ability to refuse consent. Although Allison did not actively aid in the search of the trunk, he did get the keys from the ignition and open the trunk. He stood by the...