U.S. v. Brightwell

• Decision Date: 05 May 1977
• Docket Number: 76-2182 and 76-2222,Nos. 76-2006,Nos. 76-2006,76-2182 and 76-2222,s. 76-2006,76-2182 and 76-2222,s. 76-2006
• Citation: 563 F.2d 569
• Parties: UNITED STATES of America v. David BRIGHTWELL, Thomas Peeks, Stephen Spence, Appellants in, and Winfield Jones. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 569

563 F.2d 569

UNITED STATES of America v. David BRIGHTWELL, Thomas Peeks, Stephen Spence, Appellants in Nos. 76-2006,76-2182 and 76-2222, and Winfield Jones.

Nos. 76-2006, 76-2182 and 76-2222.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6) May 5, 1977.

Decided Aug. 31, 1977.

Arthur J. Abramowitz, Hyland, Davis & Reberkenny, Cherry Hill, N. J., for appellant, Thomas Peeks.

James J. Rahner, Hickey, Azpell and Rahner, Upper Darby, Pa., for appellant, David Brightwell.

Thomas F. Schilpp, Media, Pa., for appellant, Stephen Spence.

Jonathan L. Goldstein, U. S. Atty., Brian D. Burns, Asst. U. S. Atty., Newark, N. J., for appellee, United States.

Before SEITZ, Chief Judge, ROSENN, Circuit Judge, and LORD, District Judge. ^*

OPINION OF THE COURT

PER CURIAM.

The appellants, Peeks, Brightwell and Spence appeal their conviction.

Appellant, Thomas Peeks, makes the following contentions: (1) that the evidence seized from the Brightwell residence was obtained in violation of the Fourth Amendment prohibition against illegal searches and seizures and should have been suppressed by the trial court; (2) the trial of the co-defendant jointly was prejudicial to defendant Peeks and denial of defendant's motion for severance constituted prejudicial error; (3) denial of defendant's motion for change in venue constituted error since defendant was unable to obtain trial by an impartial jury; (4) the pretrial publicity reporting on defendant's trial, as well as on more generalized criminal activity undertaken by identified black groups precluded a trial consistent with standards of due process; (5) the impanelment of an all-white jury was inherently prejudicial to appellant; (6) under the totality of the circumstances of this case, appellant was denied due process and a fair jury trial.

Appellant, David Brightwell, makes the following contentions: (1) that the court erred in sustaining a warrantless entry and search and seizure without a clear showing of probable cause and exigent circumstances; (2) that the court abused its discretion in permitting a witness to make identification by voice analysis without sufficient inquiry into the competency of the witness to testify, especially when the witness' testimony was speculative and was in the nature of an opinion; and (3) that the court erred in refusing to dismiss an impaneled jury which did not properly reflect a cross-section of the community.

Appellant, Stephen Spence, makes the following contentions: (1) that the court erred in refusing to suppress the evidence found in the home of co-defendant David Brightwell on the grounds that same was obtained as a result of an illegal search and seizure, in violation of appellant's rights under the United States Constitution, and permitting said evidence to be introduced against appellant at trial; (2) that the court erred in refusing appellant's requested jury instructions and in failing to instruct the said jury that, although the law authorizes an inference of guilt of theft from possession of recently stolen goods, the jury is not required nor instructed to draw such inference; (3) that the court erred in refusing appellant's requested jury instructions and in failing to instruct the said jury that, in order to find that the appellant "aided and abetted" in the bank robbery, they must find that appellant had prior knowledge of the robbery; (4) that the court erred in refusing to grant appellant's Motion for Severance prior to trial; (5) that the court erred in refusing to grant appellant's Motion for Acquittal at the close of all the testimony; (6) that the jury verdict was against the weight of the evidence; and (7) that the court erred in refusing to dismiss the charges because of the government's failure to afford the appellant a speedy trial as required by the United States Constitution.

We have examined the record of the joint trial as well as the opinion of the district court and the briefs on appeal. We think such examination supports the conclusion that no error was committed by the district court. We note particularly that the facts found by the district court in its unreported opinion fully support its conclusion that the requisite probable cause and exigent circumstances existed to support warrantless entry and search of the Brightwell residence and the subsequent plain view seizure.

The judgments of the district court will be affirmed.

JOSEPH S. LORD, III, District Judge, dissenting.

Defendants Brightwell, Peeks and Spence appeal their convictions for bank robbery, 18 U.S.C. § 2113(a), and putting lives in jeopardy with a dangerous weapon during that robbery, 18 U.S.C. § 2113(d), citing numerous grounds for reversal. While I find that most of defendants' contentions are clearly without merit, I disagree with my Brethren's conclusion that probable cause and exigent circumstances justify the warrantless entry and search of the Brightwell residence.

Before trial, defendants moved to suppress evidence seized from Brightwell's home. The trial court held a hearing on this motion and in an unreported opinion, dated March 24, 1976, the court ruled that the warrantless entrance of Brightwell's home was justified under the "hot pursuit" doctrine and that once inside the dwelling the warrantless seizure of evidence was supported by the "plain view" exception to the warrant requirement. On appeal the majority has accepted the trial court's analysis.

An understanding of the factual situation leading to the seizure of evidence in Brightwell's residence is essential to the analysis of the hot pursuit exception. The evidence elicited at the suppression hearing and the trial court's findings in its opinion provide the basis of the following summary.

I. FACTUAL SITUATION

The bank robbery and subsequent seizure of evidence at Brightwell's residence occurred during the afternoon of February 14, 1975. At approximately 12:41 P.M., the Camden Police Department received an anonymous telephone call from a woman who reported that there was a "suspicious" green 1974 Chevrolet Monte Carlo, bearing Pennsylvania license plate 73N726, located in a back alley on the 1200 block of Lake Shore Drive, Camden and that three individuals were in the vicinity acting in a "suspicious" manner. The caller did not describe what she meant by "suspicious." In response to this call, the Camden Police sent a unit to investigate.

At 12:50 P.M. the Camden Police received a call that an armed robbery was in progress at Peoples National Bank in nearby Woodlynne, and that a 1963 Chevrolet was used as the getaway car. A police unit was immediately dispatched to the scene.

At approximately 1:05 P.M. a report was received that a brown 1963 Chevrolet, bearing New Jersey license plate NEW 192 had been stolen from a Pathmark parking lot located approximately one-quarter mile from Peoples National Bank. The police concluded that this stolen automobile must have been used as the getaway car in the bank robbery.

In the meantime, a police unit investigated the report of the suspicious Monte Carlo in the alleyway in back of Lake Shore Drive and found the stolen Chevrolet, unoccupied, near where the Monte Carlo had been observed. The location of the stolen car was approximately two or three blocks from the bank. The police concluded that the bank robbers had switched from the 1963 Chevrolet to the Monte Carlo to escape.

Investigation at the bank was simultaneously going on during this time period. FBI officers determined that the robbery had been committed by three black males, two of whom were armed. Witnesses stated that one robber wore a pink jumpsuit and two of the robbers were masked. The robbers stole a sum of money and took other articles from the tellers. The FBI also completed a "lookup" of the license plate of the Monte Carlo and determined that the auto apparently was not reported as stolen and was owned by a David Brightwell of 713 East 7th Street, Chester, Pennsylvania.

Based upon this data and the investigations at the bank and Lake Shore Drive, Sergeant Stiles of the Camden Police telephoned the Chester Police between 1:15 and 1:30 P.M. to report the robbery and to request assistance. In particular, Sergeant Stiles told the Chester Police that there had been a bank robbery committed by three persons and that the robbers possibly had switched cars to the green Monte Carlo owned by Brightwell. No further details of the crime were described to the Chester Police.

Captain Steppke of the Chester Police Department coordinated the police action that led to the warrantless search and seizure. Immediately after the call from Camden, Captain Steppke was told of the robbery and possible involvement of Brightwell's auto. He dispatched units at once to stake out the Brightwell residence to determine if the Monte Carlo was there. Captain Steppke then left the station to go to Brightwell's address which was approximately a two minute drive from the police station. On his way he was notified by Officer Coulter, who had arrived at the scene, that the green Monte Carlo was parked near the residence and that a black male was attempting to pull out of the parking space. Captain Steppke told Officer Coulter to stop the driver, Winfield Jones. ¹ Coulter then ordered Jones out of the car and frisked him. The officer felt a bulge in Jones' pocket and removed a roll of cash ($215) wrapped in a silk stocking.

During this stop and frisk, Captain Steppke arrived at East 7th Street and directed that Jones be detained in a police car. Steppke then detailed other officers to the front and rear of Brightwell's residence, which was approximately 150 feet from the Monte Carlo. The house is a two-story brick row home with three steps leading to the front door. The blinds were drawn on the front windows. Captain Hamilton and Detective Tyler approached the door of the house, with Captain Steppke a few steps behind. At this point...