U.S. v. Jarvis

• Decision Date: 26 July 1977
• Docket Number: No. 850,D,850
• Citation: 560 F.2d 494
• Parties: UNITED STATES of America, Appellee, v. Wallace JARVIS, Appellant. ocket 76-1487.
• Court: U.S. Court of Appeals — Second Circuit

Page 494

560 F.2d 494

UNITED STATES of America, Appellee, v. Wallace JARVIS, Appellant.

No. 850, Docket 76-1487.

United States Court of Appeals, Second Circuit.

Argued March 10, 1977.

Decided July 26, 1977.

Guy L. Heinemann, New York City, for appellant.

Jonathan M. Marks, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before SMITH and FEINBERG, Circuit Judges, and TENNEY, ^* District Judge.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a judgment of conviction, after jury trial in the United States District Court for the Eastern District of New York, George C. Pratt, Judge. Appellant Jarvis was found guilty of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and was sentenced to five years' imprisonment. His sentence has been stayed pending appeal.

Two issues are raised on appeal. Appellant claims that palmprint evidence and eyewitness identification should have been excluded as fruits of an unlawful arrest and that the eyewitness identifications were impermissibly suggestive. We affirm.

I.

The underlying facts are not in dispute. On February 2, 1976, the European-American Bank at 3121 Thompson Avenue, Long Island City, was robbed at gunpoint by two black males. At the time of the robbery, John DiGiacomo, an employee of the bank, was at a counter in the tellers' area facing a wall decoding a check for a customer. At the same time, Edelmira Morales, a teller, was at her teller's station. One robber vaulted the counter separating the tellers' area from the public area of the bank, landing in the vicinity of DiGiacomo. According to eyewitness testimony, this robber wore a cap pulled down over his forehead and also for a time had a mask pulled over the top of his mouth from below his chin. Brandishing a handgun and a canvas bag, he enlisted DiGiacomo's aid in going to each of three tellers' stations to remove cash from their drawers. While withdrawing cash from the first teller's drawer, DiGiacomo tripped the bank's silent alarm which also activated the two surveillance cameras within the bank.

In the meantime an accomplice obtained the bank guard's gun and controlled the public area of the bank. After the tellers' drawers had been emptied, the first robber again vaulted the counter and escaped from the bank. The accomplice ordered all present to come to the center of the public bank floor, to lie down, and to remain motionless. Shortly thereafter he too left the bank. The entire robbery lasted approximately two minutes.

The Federal Bureau of Investigation and the New York City Police Department immediately commenced an investigation of the robbery. During this investigation, nine latent "lifts" were taken, including a palmprint impression from the top of the tellers' counter. In addition DiGiacomo, Morales and others were interviewed.

Shortly after the robbery, on February 5, 1976, the bank employees were shown blow-ups of the surveillance film and a "montage" depicting the two robbers in a dual photograph.

On February 11, 1976, nine days after the bank robbery, Michael Blanchard was arrested on another charge and confessed to the February 2 robbery in Long Island City, indicating he was the accomplice in the public area of the bank. At the time of Blanchard's arrest several documents were seized from him including a slip of paper with the name "Jay" and an address and telephone number which later proved to be that of appellant Jarvis.

On February 12, one Junius Bowman was arrested by state authorities together with another individual, and was found to be in possession of two handguns, one of which was the gun which had been taken from the bank guard during the robbery in Long Island City. Agents of the FBI were notified of the seizure of the gun, and Bowman became a suspect.

On the day of Junius Bowman's arrest, Margaret Bowman, a girlfriend of appellant Wallace Jarvis, and the aunt of Junius Bowman, received a telephone call from her sister Barbara Bowman, Junius' mother, who told Margaret of Junius' arrest while in the possession of some guns. Margaret immediately told Jarvis that her nephew Junius had been arrested with some guns. Upon learning this fact, Jarvis, according to Margaret Bowman's later testimony, admitted to Margaret that those guns were involved in the bank robbery, which he admitted taking part in. Margaret later testified that Jarvis threatened to kill her if she told anyone about the robbery.

On April 8, before Jarvis had been identified as one of the robbers, the government had obtained an indictment charging Blanchard and "John Doe" with violating Title 18, U.S.C. §§ 2113(a), (d) and 2. A "John Doe" warrant issued, but there was no description of this "John Doe" in either the indictment or the warrant.

Eventually, Margaret Bowman told her sister Barbara of Jarvis' threats and on April 14 Barbara decided to approach the FBI. She told FBI Agent Wichner of Margaret's conversation as to the events of the night of Junius Bowman's arrest. Barbara Bowman was shown a spread of six surveillance photographs from different bank robberies by the FBI and identified one of the robbers of the European-American Bank as her sister's friend, Jarvis. The FBI thus first learned of Wallace Jarvis' name on April 14.

Michael Blanchard's wife identified one of the men in the surveillance photo as a man she had seen with her husband a week before the robbery, driving a 1969 four-door Chevrolet in poor condition. Barbara Bowman described Jarvis' car as an old, grey, four-door sedan. A car matching this description was seen by FBI Agent Wichner on April 19 parked at the address written on the paper which had been seized from Blanchard.

On April 19 the information identifying Jarvis was relayed to the U.S. Attorney's office and Jarvis' arrest on the "John Doe" warrant was authorized.

On April 20, 1976 the appellant was arrested in his home shortly after 1 p. m. on the "John Doe" bench warrant which had been issued earlier. The FBI agents making the arrest first telephoned Jarvis' home on a pretext and learned that he was home. They then went to his home, rang the bell, and when no one answered, entered by breaking the door. They found Jarvis in bed with Margaret Bowman and arrested him. A photograph and palmprints were taken of Jarvis following his arrest.

II.

It is uncontested that these facts, taken together, constituted probable cause to arrest appellant. Appellant alleges, however, that the "John Doe" warrant did not constitute a valid warrant, that a warrant is required to arrest a person in his home if there are no exigent circumstances, and that his arrest was therefore illegal. He further claims that the photograph and palmprint taken from him following his arrest must be suppressed as the fruits of the illegal arrest.

The court below held that even though the warrant did not contain a name or description by which the defendant could be identified with reasonable certainty, as required under Rule 4(c)(1), Fed.R.Crim.P., ¹ the warrant was valid because "extrinsic evidence" was available which provided clear, sufficient identification of the defendant. We cannot agree that such extrinsic evidence may be used to validate an otherwise invalid warrant. The warrant requirement exists in order to permit a neutral magistrate to make the decision whether to authorize arrest, rather than leaving this decision up to the prosecutor or officer. Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Gerstein and Johnson involved determinations of probable cause, but the same principles are applicable here. Even where an indictment has been handed down and there is a presumption of probable cause, a warrant requirement remains. Fed.R.Crim.P. 9(b)(1). ² If the prosecution were permitted to arrest on the basis of "John Doe" warrants supplemented by extrinsic evidence, the requirement for a particularized warrant, issued by a magistrate, would become a nullity. To comply with Rule 4(c)(1) and the fourth amendment the name or a particularized description of the person to be arrested must appear on the face of the "John Doe" warrant. West v. Cabell, 153 U.S. 78, 86, 14 S.Ct. 752, 38 L.Ed. 643 (1894); United States ex rel. Savage v. Arnold, 403 F.Supp. 172, 175 (E.D.Pa.1975); United States v. Swanner, 237 F.Supp. 69, 71 (E.D.Tenn.1964). We hold that the "John Doe" warrant on which Jarvis was arrested was not a valid warrant.

In the absence of a valid warrant, we must decide whether Jarvis' arrest can be upheld without a warrant under 18 U.S.C. § 3052. ³ The Supreme Court has held that 18 U.S.C. § 3052, giving authority to FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed "in their presence" or to instances where they have "reasonable grounds to believe that the person to be arrested has committed or is committing a felony." The statute states the constitutional standard of the fourth amendment that no warrants for either searches or seizures shall issue except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." ⁴ Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959); United States v. Elgisser, 334 F.2d 103, 109 (2d Cir.), cert. denied sub nom., Gladstein v. United States, 379 U.S. 879, 85 S.Ct. 148, 13 L.Ed.2d 86 (1964). The issue before us is whether under fourth amendment standards it was permissible to arrest Jarvis in his home at midday, following a forcible entry, without a valid warrant particularly describing Jarvis. ⁵

The appellant concedes that the government had probable cause to arrest him so that the sole issue is whether or not the arrest was "unreasonable" under fourth amendment...