U.S. v. Gidley

• Citation: 527 F.2d 1345
• Decision Date: 05 March 1976
• Docket Number: No. 75--2709,75--2709
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John James GIDLEY and Clayton Victor Williams, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1345

527 F.2d 1345

UNITED STATES of America, Plaintiff-Appellee, v. John James GIDLEY and Clayton Victor Williams, Defendants-Appellants.

No. 75--2709.

United States Court of Appeals Fifth Circuit.

March 5, 1976.

Rehearing and Rehearing En Banc

Denied April 6, 1976.

H. Gilman Hudnall, Jr., Atlanta, Ga. (Court-appointed), for defendants-appellants.

John W. Stokes, U.S. Atty., S. W. Ludwick, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

MORGAN, Circuit Judge:

Defendants Gidley and Williams were each convicted in the Northern District of Georgia of one count of 18 U.S.C. § 2113(d), bank robbery. Both defendants appeal and allege multitudinous errors. While we have reviewed all the defendants' contentions, we find that three allegations of error merit discussion. Defendants allege (1) that the district court erred in not suppressing evidence obtained as the product of an allegedly illegal arrest, (2) that the district court erred in not granting a continuance, and (3) that the district court erred in not suppressing in-court identifications of the defendants by certain witnesses that were allegedly the product of an impermissibly suggestive photographic display. We find the defendants' contentions to be without merit and affirm their conviction.

On March 10, 1975, in the tiny north Georgia hamlet of Hiram, a branch of the Citizens Bank of Dallas was robbed by three armed men. Not only did the masked robbers purloin approximately $3,000, but they also obtained a stack of bait money, five $10 bills whose serial numbers had previously been recorded by the bank, and a red dye bomb that when exploded would stain the money with a red ink. As will be detailed below, ink from the dye bomb led to the arrest of defendants Gidley and Williams and their conviction.

I. The Arrest.

Defendants allege that their arrest was without probable cause, and therefore, any eivdence obtained as a product of their arrest should have been suppressed. See, Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The events leading up to the arrest are as follows. At approximately 3:00 a.m. on March 11, 1975, the morning after the robbery, Detective W. A. Smith of the Atlanta Police Department received information from the manager of an Atlanta nightclub that a customer had paid the club $115 in red dye stained bills. Aware that dye stained money often is a result of the explosion of a dye bomb planted during a bank robbery, the detective had a description of the customer radioed to all units of the Atlanta Police Department. At that time, however, Detective Smith was unaware of the Hiram bank robbery. Shortly thereafter, two officers of the Atlanta Police Department spotted defendant Gidley, who fitted the radio description, with defendant Williams at a restaurant located a short distance from the nightclub. After observing Gidley pay the waitress with a red dye stained bill, the officers called for assistance, and Sergeant Fitzgerald of the Atlanta Police arrived. The Sergeant approached Gidley and asked him to come forward. As Gidley approached, Sergeant Fitzgerald noticed at Gidley's waist band a bulge that the officer thought might conceal a weapon. Fitzgerald grabbed the bulge, removed an automatic pistol, and then placed Gidley under arrest. Immediately upon the arrest of Gidley, Williams rose and yelled at the officer that the gun was his and attempted to come betweem the officer and Gidley. Other officers in the restaurant restrained Williams, placing him under arrest for interfering with an arrest. Both prisoners were then thoroughly searched, with dye stained money and bait money found in their possession. Defendants allege these arrests to have been made without probable cause.

We need not determine whether the officers observing defendants passing dye stained money is sufficient to establish probable cause for arrest. While the police officers were not aware of the particular bank robbery at Hiram, Detective Smith was aware that dye bombs are used to mark money taken in a robbery. ¹ The passing of such money is an appropriate circumstance which would justify an officer investigating further possible criminal behavior. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Therefore, the police officers' limited intrusion into Gidley's liberty, by asking him to come forward and answer a few questions, was proper. See, United States v. Rollerson, 491 F.2d 1209, 1211--12 (5th Cir. 1974); United States v. West, 460 F.2d (5th Cir. 1972).

Even though the officers were justified in questioning Gidley, the frisk was proper only if the officers were able to point to particular facts from which they might have reasonably inferred that the individual was armed. Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); United States v. Tharpe, 526 F.2d 326 (5th Cir. 1976). Here, Sergeant Fitzgerald noticed a large bulge that could well have concealed, and in fact did conceal, a weapon. A decision not to frisk the defendant under these circumstances, in a crowded restaurant, could well have resulted in harm to the police or to bystanders. Once the officers found the weapon, they properly arrested Gidley. Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Johnson v. Wright, 509 F.2d 828, 830 (5th Cir. 1975). Williams' interference with Gidley's arrest provided probable cause for his own arrest. See, Ga. Code Anno. § 26--2505 (1972). Nor does the fact that defendants were not convicted on state charges negate the probable cause that existed for their arrest. United States v. Seay, 432 F.2d 395, 402 (5th Cir. 1970). Finally, once the defendants were in custody, the police officers were justified in making a thorough search. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In short, there was nothing impermissible in the procedures used by the police in Gidley's or Williams' arrest.

II. The Denial of Continuance.

Defendants' second contention is that the district court erred in denying a motion for continuance. Essentially, defendants argue that they relied on a notice of hearing, stating that the pre-trial hearing on the motions to suppress would be heard on May 27, 1975. Defendants contend that, relying on this notice, they were unprepared when the district court decided to hold the suppression hearing on May 19, and to then proceed to trial on May 20.

The granting of continuance is a matter committed to the sound discretion of the district court. Ungar v. Sarafite, 376 U.S. 575, 584, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); United States v. Simpson, 460 F.2d 1321 (5th Cir. 1972). There is no evidence here that the district court applied its discretion unwisely. In fact, the record demonstrates that the defendants had no reason to be unprepared. First, subsequent to receiving the notice of hearing, defendants were notified by the district court in a letter that all parties should be ready for trial by May 19. Second, in response to defendants' claim that they had had insufficient time to obtain witnesses, the district court inquired as to what witnesses were needed. All of the witnesses named by the defense were already under subpoena by the government. ² Third, the government's case lasted for four days during the trial, but there is no evidence that during that time defendants attempted to obtain any witnesses. Fourth, the district court after the suppression hearing instructed the attorneys that if there was any reason that they could not be prepared, they should inform the court on the morning of the trial. The following morning neither of the defendants' counsels raised any objection to proceeding with trial. Finally, both defendants had been represented for over a month by the same counsels who conducted their trial. Except for general statements by counsels that they were unprepared neither this court nor the district court was specifically informed as to the particular need for any continuance. Without such information, we can find no evidence that the district court abused its discretion. See McKinney v. Wainwright, 488 F.2d 28 (5th Cir. 1974).

III. The Photographic Display.

Defendants' third allegation of error is that the district court erred in allowing in-court identifications that were allegedly the product of an impermissibly suggestive photographic display. At trial, two brothers, David and Daniel Giddings, identified both Gidley and Williams as riding in a car leaving the scene of the robbery. David Giddings testified that he was in Hiram on the day of the robbery on business. At approximately 11:30 in the morning, he heard a car with squealing tires and looked up to see what was the matter. He stated that he saw a car come out of the parking lot and slide onto the highway. As the car came toward him, the inside began to fill with red smoke, apparently from the dye bomb. Both the driver and the passenger rolled down the windows and jutted their heads outside in an apparent attempt to get air. The car weaved back and forth along the street as it approached Mr. Giddings, passed him, picked up speed, and disappeared. Daniel Giddings testified that he was with his brother on the morning of the robbery and that he also saw the car come out on the highway, the smoke go off in the car, and the two men jut their heads out the window. Daniel stated that while the car was coming down the main street he heard someone yell 'bank robbery,' and he started toward the bank while watching the car. In his testimony, Daniel stated also, that the car passed twenty-five feet in front of him. Both witnesses identified Gidley as the Driver and Williams as the passenger of the car.

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