U.S. v. Edwards

• Citation: 554 F.2d 1331
• Decision Date: 27 June 1977
• Docket Number: No. 76-1668,76-1668
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin Leon EDWARDS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1331

554 F.2d 1331

UNITED STATES of America, Plaintiff-Appellee, v. Alvin Leon EDWARDS, Defendant-Appellant.

No. 76-1668.

United States Court of Appeals Fifth Circuit.

June 27, 1977.

Rehearing En Banc Granted Aug. 24, 1977.

H. Gilman Hudnall, Jr., Atlanta, Ga. (Court appointed), for defendant-appellant.

John W. Stokes, U. S. Atty., William F. Bartee, Jr., Dorothy T. Beasley, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Alvin Leon Edwards appeals from his conviction in a jury trial of possessing two checks knowing them to have been stolen from the mails. 18 U.S.C. § 1708. He claims that the search that uncovered the checks violated the fourth amendment and that he was denied a speedy trial. The government seeks to justify the search as based on probable cause coupled with exigent circumstances, as incident to an arrest, and as part of a routine inventory procedure for cars that are to be impounded. We reject each theory and reverse the conviction.

I.

On May 1, 1974 police officer M. L. Williams received a call to a government housing project in Atlanta's west end. He arrived at the address and spoke to Mary McVickers, family service officer of the large apartment complex. She gave Williams a description of three persons who had allegedly been stealing checks from mail boxes: two black females with afro hair styles, one wearing a white blouse and orange pants, the other wearing a white blouse and blue pants; and one black male with the "super fly" look, i. e., hair combed down rather than in an afro. McVickers also described a white-over-maroon Cadillac.

Williams made no effort to determine the basis for the conclusion that the described persons had been stealing checks. McVickers said some tenants had called the office complaining about checks being stolen and providing the descriptions. Williams did not determine, from the tenants themselves or even from McVickers, whether any tenant had claimed to have seen the persons steal checks or engage in any other suspicious activity. For all that Williams ascertained, the tenant reports could have been based on a failure of government checks to arrive on the usual day, thus arousing a groundless suspicion of theft, coupled with unfamiliarity with or dislike for the three described persons. In addition, Williams did not ascertain why anyone connected the Cadillac with the thefts.

After patrolling the area for a short period, Williams located a Cadillac fitting the description parked on a nearby street. Appellant Edwards, a black male with the superfly look, was sitting in the driver's seat. A black woman wearing a white blouse and orange pants was walking nearby. Williams approached Edwards and sent fellow officer S. M. Shaw to speak to the woman.

As Williams approached the Cadillac, he saw Edwards bend down as if to place something on the floor. Williams asked Edwards for identification, but Edwards denied having any. When asked specifically about a driver's license, Edwards said that he had none and that he was not driving. Rather, said Edwards, he was merely awaiting his brother.

Shaw returned and reported to Williams that speaking to the woman had "proved negative." The woman denied knowing Edwards. Edwards also denied knowing the woman.

Williams requested and received permission from Edwards to search the car. Edwards got out of the car while Williams leaned in the open door and looked around. Williams found nothing.

At that point Williams and Shaw left Edwards and separated from one another. Shaw removed his shirt in an effort to avoid attracting attention to its light color and used binoculars to monitor activities at the apartment complex. Shaw was unable to observe any thefts from mail boxes, and after ten minutes he and Williams rejoined one another. Shaw related to Williams that he had observed Edwards speaking to the woman whom he had earlier denied knowing, and that Edwards had been driving the Cadillac. Williams left to find Edwards while Shaw pursued the woman.

Williams located the Cadillac backing out of a nearby driveway. When the Cadillac began to go forward, Williams used his flashing lights to stop the car. Edwards was driving, and Williams arrested him for driving without a license. ¹ Williams placed Edwards in the back seat of the patrol car. Shortly thereafter Shaw arrived with the woman in the back of his patrol car. Williams and Shaw searched the Cadillac exhaustively. They searched the trunk and the glove compartment. Beneath the overlapping carpet in the space between the driver's seat and the door, the officers found two checks that proved to be stolen from the mails.

The officers immediately telephoned United States postal inspectors, who came to the scene. One day later, on May 2, 1974, Edwards was transferred from state to federal custody. The federal complaint for knowingly possessing stolen mail matter was filed May 3, 1974. On that date the authorities took Edwards before a magistrate. Edwards appeared at a preliminary hearing on May 10, 1974.

Thirteen months later, on June 3, 1975, a grand jury indicted Edwards. He appeared at an arraignment on July 17, 1975. Edwards moved for suppression of the checks as illegally seized and for dismissal of the charges for failure to afford him a speedy trial. A magistrate conducted a hearing on the motions on October 10, 1975. The magistrate rendered his report November 5, recommending that both motions be denied. The district court adopted the magistrate's report on November 12. Edwards went to trial January 19, 1976. A jury convicted him the next day, and the judge sentenced him to three years imprisonment. Edwards appeals, pressing the fourth amendment and speedy trial contentions. Finding the search unconstitutional, ² we reverse the conviction without reaching the speedy trial issue. ³

II.

The government first attempts to support the search on the theory that there was probable cause coupled with exigent circumstances. Probable cause exists only when the facts and circumstances within the officers' personal knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). We find an absence of probable cause.

The key to the probable cause issue is the impact of the original report that the three described persons were involved in stealing checks. Had Williams presented an affidavit to a magistrate recounting only that his informant, Ms. McVickers, believed that the described persons had been stealing checks, it is inconceivable that the magistrate would have issued a warrant either to arrest the described persons or to search the Cadillac. The informant's bare conclusion that criminal activity was afoot fell far short of the probable cause threshold. Here, as in Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1967), "(t)he tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that" the accused had committed the crime attributed to him. The inadequacy of the tip to support a warrant necessarily indicates that it will not support a warrantless search; some showing of "the underlying circumstances" is as crucial in the latter situation as in the former. See United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976). Because Williams neither identified the persons who had allegedly made the reports nor determined the reasons why they suspected the described persons of stealing checks, we do not believe that Williams had reasonable grounds to conclude that the described persons had in fact been engaged in theft. Williams knew only that somebody, for some reason, thought that they may have committed a crime. Fourth amendment freedoms do not evanesce in the presence of such conclusory allegations. If there had indeed been sufficiently reliable information amounting to probable cause, Williams could easily have elicited it from the service officer or from the tenants themselves. ⁴

Lacking probable cause on the basis of the service officer's report, Williams did not thereafter gather sufficient additional information to cross the probable cause threshold. When first approached by Williams, Edwards willingly allowed the officer to search his car as thoroughly as desired. Edwards's only suspicious activity thereafter was talking to a woman whom he had earlier denied knowing. Although this activity may not be without consequence, we cannot assign it controlling significance in light of the frequency with which unacquainted men and women speak to one another. The Atlanta springtime, after all, brings more than beautiful flowers and pleasant climate. ⁵

The absence of probable cause is highlighted in one additional respect. The initial search to which Edwards consented failed to produce any evidence, despite the fact that Williams had just observed Edwards make a suspicious movement toward the floor. Although Williams did not look under the carpet flap where the checks were ultimately located, we can conclude only that Williams had no basis at all for believing that there were checks in that area; otherwise, he would certainly have searched that area at the initial encounter. During part of the brief interim between the initial search and the later search, however, Shaw watched Edwards with binoculars. Shaw did not see Edwards obtain any checks. Upon the second stop of Edwards there was no reason for Williams to believe that the car contained any evidence that it had not contained when stopped initially. If Williams...