U.S. v. Collins

• Decision Date: 05 March 1976
• Docket Number: No. 75-1684,75-1684
• Parties: UNITED STATES of America, Appellee, v. Zebedee Richard COLLINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 79

532 F.2d 79

UNITED STATES of America, Appellee, v. Zebedee Richard COLLINS, Appellant.

No. 75-1684.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1976.

Decided March 5, 1976.

J. Arnot Hill, Hill & Gamm, Kansas City, Mo., for appellant.

Albert D. Hoppe, Asst. U. S. Atty., Kansas City, Mo., for appellee. Bert C. Hurn, U. S. Atty., also appeared on brief.

Before HEANEY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

Zebedee Richard Collins was found guilty by a jury of participating in a robbery of the Bank of Lee's Summit in Lee's Summit, Missouri, on January 17, 1975, in violation of 18 U.S.C. §§ 2 and 2113(a). On this appeal Collins challenges only the failure of the trial court to suppress evidence obtained in a search of a car driven by Collins on the day of the robbery. We affirm the refusal to suppress and the conviction.

Collins challenges the validity of the search on four grounds:

1. The initial stop of his car by the officer and his temporary detention was an unlawful arrest without probable cause.

2. The second stop and arrest of Collins by the same officer a few minutes later was an unlawful arrest without probable cause.

3. The search warrant obtained for the search of the car was invalid because of the insufficiency of the warrant affidavit.

4. The search was not valid without a warrant as incident to a valid arrest.

We discuss the facts and our holding as to each point seriatim.

1. The Initial Stop.

The Bank of Lee's Summit in Lee's Summit, Missouri, was robbed of $34,090.00 at gunpoint by three black males shortly before noon on January 17, 1975. Field Sergeant Gary Short, of the Lee's Summit police force, heard a report on his radio at 11:55 a. m. that "The bank of Lee's Summit has been robbed. The subjects would be three Negro males left in a light brown late model Cadillac." At about 12:05 p. m. Short stopped a white over gold or brown 1969 Cadillac being driven by Collins, a black male, about three miles from the bank. Collins did not have a driver's license but identified himself with a felon registration form made out in the name of Larry D. Roby and a birth certificate showing the same name. The officer asked Collins, who was traveling alone, for permission to search the car, which was granted. However, Collins claimed not to have a key to the trunk. Collins was wearing a black motorcycle jacket at the time. Short did not "harass" Collins during this stop and after discussing the matter with two other officers who had arrived at the scene, Short let Collins proceed.

The first question we must determine is whether the initial stop was an arrest or an investigative stop. In so doing we must consider the circumstances of the temporary detention. Here Short stopped Collins, asked for identification and after being shown a felon registration slip which Collins claimed as his own, told Collins of the reason for the stop, asked permission to search the car and received it. After completing a very perfunctory search, except for the trunk, and even though Collins had no driver's license, shortly thereafter he let him go on his way. Under these circumstances we believe the initial stop amounted to an investigatory stop or seizure but not an arrest.

In Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968), the Supreme Court indicated that the fourth amendment permitted certain "seizures" of the person on less than probable cause. The Court differentiated between these investigative seizures and arrests which were undertaken for the purpose of taking a person into custody and prosecuting him for a crime. Id. at 16, 88 S.Ct. at 1877, 20 L.Ed.2d at 902. And in Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972), the Court elaborated, stating: "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." In this case it is clear that Short detained Collins temporarily to investigate further because of the similarity between his car and the description over the police radio. Such conduct has frequently been justified as an investigative stop. E. g. United States v. Lovenguth, 514 F.2d 96, 98-99 (9th Cir. 1975); Johnson v. Wright, 509 F.2d 828, 829 (5th Cir.), cert. denied, --- U.S. ----, 96 S.Ct. 445, 46 L.Ed.2d 384, 44 U.S.L.W. 3344 (1975); United States v. Hernandez, 486 F.2d 614, 616-617 (7th Cir. 1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); United States v. Mallory, 460 F.2d 243, 247 (10th Cir.), cert. denied, 409 U.S. 870, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972); Application of Kiser, 419 F.2d 1134, 1136 (8th Cir. 1969). Our conclusion that this was not an arrest is borne out by the fact that the policeman allowed Collins to proceed when his investigation did not result in probable cause for further detention at that time.

The second question we must answer is whether the initial detention or seizure was justified at its inception based on the arresting officer's knowledge at the time of the stop. Collins relies on United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971), claiming that since there was only one person in the car and since the color of the car did not exactly match the description given on the radio, the action was not justified. We think his reliance on Nicholas is misplaced. In that case we held that the initial stop was not justified and gave the following reasons:

(1) the police were not investigating any particular crime;

(2) the police had no information respecting the car or its occupants;

(3) there is no showing in the record that the police had been informed of suspicious activities in the vicinity of the pool hall at the time of Nicholas's arrest, aside from their general knowledge that the area was highly trafficked in narcotics;

(4) the police observed the car for a very short time, during which time Sims sat quietly until Nicholas came out of the pool hall and entered the car;

(5) the hour, 11:15 p. m., was a reasonable hour for individuals to be abroad on the streets on a June evening;

(6) Nicholas and Sims were black men in a predominantly black area;

(7) the fact that a car has out-of-state license plates does not, of itself, indicate criminal activity. (Footnote omitted.) Id. at 624-625.

In the instant case the police were investigating a particular crime; officer Short did have information concerning the getaway car and its occupants; there is no showing here that the arrest of this black defendant was in a predominantly black area. Collins claims that no significance should be attached to the fact that he was black. We do not agree with this contention because the color of a person's skin, be it black or white, is an identifying factor which, while insufficient by itself, assists the police in narrowing the scope of their identification procedure. See United States v. Brignoni-Ponce, 422 U.S. 873, 885-886, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607, 619 (1975).

In our opinion this case falls within the rationale enunciated by Judge Lay in United States v. Wickizer, 465 F.2d 1154 (8th Cir. 1972) in which we upheld an investigative stop under the following facts:

The facts show that on the evening of November 6, 1971, at approximately 10:15 p. m., defendant was seated in a parked car in a Kansas City, Missouri, public park. A male friend was in the front seat with the defendant and two young female companions were in the rear seat. A Kansas City police officer was on patrol in the park. The officer had knowledge that there had recently been several rapes in the area. As he approached the Wickizer vehicle he shined his car spotlight through defendant's front windshield and noticed the two girls sitting in the back seat. They were rather young, and he thought they both appeared frightened. The officer stopped and asked the driver to identify himself. Id. at 1155.

In deciding that the initial questioning was permissible the court stated as follows:

There existed permissible grounds for the initial questioning of the defendant. The officer's concern over previous rapes in the area and his impression of the frightened appearance of the young girls gave cause for further investigation. Id. at 1156.

In Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969) we upheld an initial stop under these facts:

Early on the morning of April 12, 1966 at approximately 3:30 a. m. officers Sam Austin and William Cowan of the Blair, Nebraska, city police department were patrolling the streets of that city. Blair is a town of approximately 2,000 persons which at the time of this incident had been plagued by a series of burglaries. The officers noticed a car containing two men driving slowly through the streets, located off the main highway, in Blair. The officers did not recognize the car and noticed that it had out of county license plates. The officers kept the vehicle under surveillance for a period noticing it slowly move by several business establishments which were closed. Then by the use of their flashing red light, the officer signaled the driver to pull the vehicle to the curb. No traffic violation was observed. Id. at 170.

In this case, at the time of the initial stop, officer Short had the following information: A bank had been robbed a few minutes earlier, three miles away by three black men who escaped in a late model light brown Cadillac.

When he was stopped Collins was driving a late model white over gold or white over brown Cadillac within three miles of the bank; he was alone and he was black; and he was first observed within 10 minutes of the time the bank was robbed. Concededly it is a close case and this initial knowledge did not constitute probable cause for arrest. But as we recognized in United States v. Nicholas, supra, 448 F.2d at 624, Terry v. Ohio, 392 U.S. 1, 88...