U.S. v. Cepulonis, s. 74--1396

• Decision Date: 01 June 1976
• Docket Number: Nos. 74--1396,74--1397,s. 74--1396
• Citation: 530 F.2d 238
• Parties: UNITED STATES of America, Appellee, v. Richard Alan CEPULONIS, Defendant-Appellant. UNITED STATES of America, Appellee, v. Francis David LOVELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 238

530 F.2d 238

UNITED STATES of America, Appellee, v. Richard Alan CEPULONIS, Defendant-Appellant.

UNITED STATES of America, Appellee, v. Francis David LOVELL, Defendant-Appellant.

Nos. 74--1396, 74--1397.

United States Court of Appeals First Circuit.

Argued Sept. 8, 1975.

Decided Jan. 30, 1976.

Certiorari Denied June 1, 1976 in No. 74--1396.

See 96 S.Ct. 2231.

Certiorari Denied June 7, 1976 in No. 74--1397.

See 96 S.Ct. 2630.

Robert W. Harrington, Boston, Mass., by appointment of Court, with whom Judith E. Diamond and Harrington & Gormley, Boston, Mass., were on brief, for Richard A. Cepulonis, appellant.

George V. Higgins, Boston, Mass., by appointment of Court, with whom Frank C. Crowley and George V. Higgins, Inc., Boston, Mass., were on brief, for Francis David Lovell, appellant.

Edward J. Lee, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., were on briefs, for appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and THOMSEN, Senior District Judge. ^*

LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial appellants Lovell and Cepulonis were convicted of aggravated bank robbery, 18 U.S.C. § 2113(d). Each appeals, complaining of a number of evidentiary and procedural rulings by the district court. We affirm the convictions.

We state the facts initially only in broad outline, leaving it until later to flesh out the details in connection with particular claims. A Woburn branch of the Suburban National Bank was robbed of $17,000 on August 9, 1973, by three masked men carrying automatic rifles. The three men escaped only after a high-speed police chase, during which shots were fired both at the police and at a passing motorist whose car crashed as a result.

On September 15, 1973, the FBI arrested Lovell and Cepulonis in New York--Lovell, at about noon in the Skyway Motel near Laguardia Airport; Cepulonis, later in the day at the Holiday Inn in Manhattan. On the fourteenth, agents had learned from an unidentified informant that the two men might be found at the Skyway Motel. At the time, a warrant was outstanding for Cepulonis' arrest for unlawful flight from prosecution in another case, and the agents suspected both men of participation in the August 9 robbery. Accordingly, agents began surveillance on the morning of the fifteenth of a room at the Skyway that they believed one or both men might be occupying. At about noon Lovell emerged accompanied by a woman. Agents stopped him in the corridor, frisked him for weapons, and arrested him when they discovered a handgun in his waistband.

A search of Lovell's person at the time of his arrest produced a set of car keys and approximately $300 in cash, including a number of five-dollar bills of an unusual type that had been taken in the robbery. A search of the suitcase and briefcase that Lovell had been carrying produced two loaded revolvers and a scrap of paper bearing the name of the Holiday Inn. Finally, a close view of Lovell's car in the Skyway parking lot revealed a shotgun, partially hidden under the seat, which the agents recovered by using Lovell's keys to enter the car.

After satisfying themselves that Cepulonis was not at the Skyway the agents turned their attention to the Holiday Inn on the basis of the scrap of paper bearing its name discovered during Lovell's arrest. There the agents learned where Cepulonis was staying, and as they had done earlier at the Skyway, put the room under surveillance. At about 7:00 P.M. Cepulonis emerged and was placed under arrest for unlawful flight. At the time of his arrest, Cepulonis expressed concern for his wife and child, and because of this the agents permitted him to walk, handcuffed, back to the door of his room and ask to be readmitted. When a woman opened the door, the agents entered and searched for other persons, but found only a young child. They then requested, and by their account received, permission to search for weapons. This search produced, among other things, handguns, ammunition and $2558 in cash. A subsequent search of Cepulonis' car yielded, in addition, an M--16 rifle.

Two months later James Guimond, arrested on other charges in Massachusetts, admitted to the FBI that he had participated in the August 9 robbery along with Cepulonis and Lovell. He revealed that after the robbery all three men had lived in a trailer park in Indianapolis and that he had stored a green footlocker there. Using the name Guimond provided, 'Joseph Macklin, No. 217,' FBI agents were able to secure the trunk and the MP 44 assault gun it contained.

Cepulonis, Lovell and Guimond were indicted for the robbery, and Guimond pleaded guilty. Before trial the district court denied motions to suppress the fruits of all the arrests and searches, with the exception of the M--16 rifle found in the search of Cepulonis' car. The court also denied a motion to sever the appellants' trials. The trial lasted five days, the Government's case consisting chiefly of Guimond's testimony and of the items seized during the arrests and after Guimond's confession. After the jury found appellants guilty, the court sentenced Cepulonis and Lovell to twenty-five years' imprisonment, and Guimond to eight.

I.

We deal first with the court's rulings on the motions to suppress. The warrantless searches and seizures approved by the court and challenged here can be categorized as follows: (1) the search of Lovell's person and effects in the Skyway Motel, (2) the search of Lovell's car in the Skyway parking lot, (3) the search of Cepulonis' room at the Holiday Inn; and (4) the seizure of the green footlocker in Indianapolis. We consider each in turn.

A

With respect to the searches attending Lovell's arrest, if the FBI agents acted properly in discovering the handgun in Lovell's waistband, they also acted properly in arresting him for its possession in light of their awareness of his criminal record, see Adams v. Williams, 407 U.S. 143, 148--49, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); and if Lovell's arrest was proper, the full search of his person and of the two cases he was carrying was in turn justifiable as incident to his arrest, see United States v. Eatherton, 519 F.2d 603, 609--11 (1st Cir. 1975). The issue before us is accordingly limited to whether the agents had adequate cause to stop and frisk Lovell when they saw him leaving his room at the Skyway.

We hold that the stop and frisk were valid under the standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). While the agents, as all agree, lacked probable cause to arrest Lovell as he approached them in the corridor outside his room, ¹ they were able to point to 'specific and articulable facts' that reasonably warranted stopping him for questioning and frisking him for weapons. Id. at 21, 88 S.Ct. 1868.

On September 14, the FBI learned that the Massachusetts State Police had received a tip from an unidentified informant that Lovell and Cepulonis were to meet a friend of Lovell's, Mary Cosgrove, at the Skyway Motel that evening. At the time Cepulonis was wanted on a fugitive warrant, both men were known to have been convicted previously of felonies involving violence, and both were suspected of participation in the August 9 robbery. Agents arrived at the Skyway early the next morning, examined the registration cards for the night of the fourteenth, and discovered a card bearing the name of Frank Patrone and listing an Ohio address and an Ohio auto registration. A check of FBI records revealed that the date of birth and general physical description on Patrone's Ohio driver's license matched Lovell's. From this the agents inferred that Patrone was in fact Lovell, and on this basis staked out the room registered to Patrone. When a couple came out of the room later that morning, Agent Holliday, who was in charge, recognized Lovell from an FBI photograph.

At this point the agents had sufficient information to justify questioning Lovell in the corridor. They knew that Lovell, who had a prior felony conviction, had used an alias in obtaining an Ohio driver's license and in registering at the Motel. They also had corroboration of the otherwise unsubstantiated tip that Lovell and Cepulonis might be found at the Motel, and thus some basis for believing that Cepulonis, for whom a fugitive warrant was outstanding, might be in the room Lovell had left. Given the circumstances, failure to have investigated further would 'have been poor police work indeed:' Ballou v. Commonwealth, 403 F.2d 982, 985 (1st Cir. 1968), quoting Terry, supra, 392 U.S. at 23, 88 S.Ct. 1868. And in light of Lovell's prior felony conviction, the warrant charging Cepulonis with flight from prosecution in an armed robbery, and the corroborated suspicion that Lovell and Cepulonis had been together, it was also reasonable to conduct a limited pat-down search for weapons. The agents had grounds to believe that Lovell might be armed and dangerous and that is was necessary 'to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. . . .' 392 U.S. at 30, 88 S.Ct. at 1884.

B

After discovery of the motel registration card filled in by Lovell in the name of Patrone, the FBI had located the automobile registered to Patrone in the Skyway parking lot and had placed it under surveillance. After the arrest, the agent conducting the surveillance, Agent Jules, approached the car for a closer look. Through the window he saw a sawed-off shotgun protruding from beneath the front seat. While the shotgun was partially covered by a brown paper bag, he could see that the barrel was broken, and that two shells were in the chamber. Using the keys seized during Lovell's arrest, he then opened the door and seized the weapon.

Agent Jules unquestionably had probable cause to seize the shotgun when he saw it in plain view in the automobile of a convicted felon, and we hold that he acted properly in entering the car to retrieve the weapon without first...