U.S. v. Durant

• Decision Date: 29 March 1984
• Docket Number: 83-1172,Nos. 83-1171,s. 83-1171
• Parties: 15 Fed. R. Evid. Serv. 663 UNITED STATES of America, Appellee, v. Leonard George DURANT, Appellant. UNITED STATES of America, Appellee, v. Nadine FARRIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1180

730 F.2d 1180

15 Fed. R. Evid. Serv. 663

UNITED STATES of America, Appellee, v. Leonard George DURANT, Appellant.

UNITED STATES of America, Appellee, v. Nadine FARRIS, Appellant.

Nos. 83-1171, 83-1172.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1983.

Decided March 29, 1984.

L. Patrick O'Brien, Kansas City, Mo., for appellant Durant.

Robert G. Ulrich, U.S. Atty., J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.

R. Thomas Day, Asst. Federal Public Defender, East St. Louis, Ill., for appellant Farris.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

HEANEY, Circuit Judge.

Leonard George Durant and Nadine Farris appeal from their convictions for bank robbery and aiding and abetting bank robbery in violation of 18 U.S.C. Secs. 2 and 2113(a) & (d) (1982). They each raise separate issues pertaining to the admission of evidence and the conduct of the trial. After reviewing the record and each of their arguments on appeal, we affirm.

BACKGROUND

On June 25, 1982, at approximately 5:40 p.m., three masked and armed men robbed the United Missouri Bank South in Kansas City, Missouri, of just over $7,100. They fled with one or two others in a red station wagon. A report went out over the police radio describing the suspects as black males.

A short while later, Kansas City police officer Francey Chapman stopped a white and gold Buick in the general vicinity of the bank robbery. The automobile contained Rita Williams, the driver, and Farris, a passenger, both black females. Upon frisking Farris, Officer Chapman felt a hard object under her blouse. She removed it and discovered a large roll of money. Chapman then searched the automobile and found two zipped bags containing several handguns and a bundle of loose cash. A backup officer placed the two women under arrest.

Later that evening, the police arrested Terence Swinney and Torrance Henderson at Williams' apartment. Swinney soon confessed his involvement in the bank robbery and agreed to testify for the government in exchange for dismissal of the charges against him. He implicated Williams, Farris, Henderson, a man known to him only as "C-note," and a man known to him only as "L." On October 1, 1982, Swinney identified Durant in a group of photographs as "L."

Three days later, on October 4, 1982, Durant was picked up on an unrelated warrant in Kansas City, Missouri. A blue Oldsmobile resembling an automobile used in the June robbery was parked outside the apartment building where Durant was taken into custody. Durant was subsequently indicted for bank robbery. The blue Oldsmobile was impounded and photographed for evidence.

Williams was the first of the defendants to be tried. She waived her right to a jury trial, and the district court convicted her on the basis of stipulated facts. On appeal, she argued the stop of her automobile and the subsequent search violated the fourth amendment. We affirmed her conviction. United States v. Williams, 714 F.2d 777 (8th Cir.1983). Farris was initially tried with Henderson, but the jury could not reach a verdict as to her. We affirmed Henderson's conviction in United States v. Henderson, 719 F.2d 934 (8th Cir.1983). Farris was reindicted and tried with Durant on December 13, 1982. The jury found both defendants guilty on December 16, 1982. The court sentenced Durant to twenty-five years imprisonment. Farris received a fifteen-year sentence.

On appeal, Farris challenges the admission of the evidence seized from the white and gold Buick just after the robbery. She also asserts the government's closing argument improperly called attention to her failure to testify. Durant argues the trial court erred in denying his motions for severance and for acquittal. He also contests the admissibility of (1) evidence that Farris is his aunt; (2) photographs of the blue Oldsmobile that was parked outside the apartment where he was arrested; and (3) alleged hearsay evidence. For the reasons discussed below, we reject each of these arguments and affirm the convictions.

DISCUSSION

A. Farris's Arguments.

Farris first contends Officer Chapman stopped her and Williams without probable cause and therefore the evidence seized in the subsequent search should have been suppressed.

The government initially challenges Farris's standing to contest the search citing Rakas v. Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 432-433, 58 L.Ed.2d 387 (1978). Rakas holds that a mere passenger in an automobile ordinarily does not have the legitimate expectation of privacy necessary to challenge the search of that automobile. This case is distinguishable, however, because Farris was ordered out of the car and frisked. In fact, it was the roll of money found on her person that led to the search of the automobile. Farris can contest the legality of the stop and frisk. Any evidence attained as a direct result of an illegal stop would be inadmissible under the "fruit of the poisonous tree doctrine" of Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441 (1963). See, e.g., United States v. Jones, 619 F.2d 494, 498 (5th Cir.1980) (suppressing physical evidence seized following an illegal stop). Lack of standing thus does not preempt Farris's suppression argument on appeal.

Farris loses her argument on the merits, however. In United States v. Williams, supra, 714 F.2d at 781, we held Officer Chapman's stop of Williams' automobile and her frisk of the occupants was a valid investigatory seizure. We affirmed the district court's finding that the stop was not based solely on the race of the automobile's occupants, but rather on a reasonable suspicion that Williams and Farris were engaged in criminal activity. We recounted the following particularized and articulable facts which gave rise to Officer Chapman's reasonable suspicion:

Less than ten minutes before the bank robbery was reported, Officer Chapman observed a parked white and gold Buick occupied by two black women and one black man in a shopping center parking lot. Chapman noticed that the male, who was exiting from the automobile, had black gloves in his back pocket and was wearing dark blue clothing which the officer considered "unusual dress for ... a June day" because "it was warm and he was dressed very warmly." At this time, Chapman was aware that approximately one-half hour earlier two armed black men, dressed in dark blue sweat suits, had stolen a red Ford station wagon in a park less than five miles from the shopping center.

Shortly after Officer Chapman observed the Buick in the parking lot, the police radio broadcast reported that there had been an armed robbery at the Union Missouri Bank South, and directed police officers to be "[o]n the lookout for a red Ford station wagon." It was reasonable for Chapman to infer that the Ford automobile was the bank robbery getaway car and that it was the same one which had been stolen shortly before by two black men dressed similarly to the black male she had seen exiting from the white and gold Buick. When Chapman heard this report, she began to drive toward the bank, which is located about eight blocks south of the shopping center where she was parked. When Chapman spotted the white and gold Buick traveling in a direction away from the bank, she turned to follow it. Chapman, following the automobile as it turned east and then south, noticed that it contained the two black women but not the black male dressed in dark clothing that she had seen earlier. She also observed that the Buick's driver, Williams, reduced her speed and apparently signaled for a right turn on several occasions without turning: such a turn would have taken the automobile back toward the bank or an area with numerous parking places. Shortly thereafter, the police radio broadcast reported that the suspect vehicle--the red Ford station wagon--was occupied by five black males and that it was the automobile which had been stolen shortly before the bank robbery.

Id. at 782.

We viewed these facts as an adequate basis for Officer Chapman's decision to stop the Buick and frisk Williams and Farris. The frisk produced a roll of bills which Farris had hidden under her clothing. We ruled this additional fact gave Chapman probable cause to search the Buick where she found handguns used in the robbery and the stolen money.

Farris urges us to distinguish her case from Williams' on two grounds. First, she claims Williams did not argue, as she does, that the stop of Williams' car and frisk of its occupants was a full arrest requiring probable cause, rather than an investigatory stop requiring only a reasonable suspicion. In fact, Williams did raise this argument and we rejected it holding the district court did not clearly err in finding the initial stop and frisk was an investigatory stop rather than an arrest. Id. at 780, n. 2. Second, Farris argues that the more complete record in her case indicates that the roll of bills found on her person was too small and neatly placed to be robbery money, thus eliminating the probable cause for the search. Here is where Rakas becomes relevant. As long as the initial stop and frisk was legal, Farris has no standing to contest the subsequent search of the automobile in which she was a passenger. See Rakas v. Illinois, supra, 439 U.S. at 148-149, 99 S.Ct. at 432-433. In any event, we do not believe additional details about the amount of money or exact placement of the bills affects the finding that there was probable cause to search the automobile.

In sum, our reasoning and our reading of the facts in Williams compel a rejection of Farris's suppression argument in the instant case. Because reasonable suspicion supported Officer Chapman's investigatory stop and frisk of Williams and Farris, evidence derived from the stop was admissible at Farris's trial.

Farris next contends that the government's closing argument improperly...