U.S. v. McCambridge

Decision Date23 March 1977
Docket Number76-1310,Nos. 76-1147,s. 76-1147
Citation551 F.2d 865
PartiesUNITED STATES of America, Appellee, v. John Michael McCAMBRIDGE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Charles Hesser, Somerville, Mass., by appointment of the Court for appellant in Case No. 76-1147.

John Michael McCambridge, pro se on brief in Case No. 76-1310.

Harvey A. Silverglate and Silverglate, Shapiro & Gertner, Boston, Mass., on brief for Civil Liberties Union of Massachusetts, amicus curiae.

Robert B. Collings, Asst. U.S. Atty., Boston, Mass., with whom James N. Gabriel, U.S. Atty., Boston, Mass., was on briefs, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Defendant John Michael McCambridge filed two appeals after his conviction in the district court of attempted robbery of a federally insured savings and loan association in Peabody, Massachusetts, a violation of 18 U.S.C. §§ 2113(a) and 2.

I. The First Appeal

Under the first appeal McCambridge alleges error in the denial of his pretrial motion to suppress evidence seized from his car upon his arrest several weeks after the robbery attempt; in the purportedly imprecise jury instructions given; and in the denial of his motions for acquittal. Further claims of error are made with respect to the court's refusal to declare a mistrial when Venere, a codefendant, pleaded guilty, and its failure to grant a motion to exclude jurors who might have overhead defense counsel state that he was visiting McCambridge at Walpole prison. McCambridge complains additionally that the trial was "unfair" because the Government advanced only in closing argument the theory that he could have been an aider and abettor.

Before discussing these contentions, we shall summarize the Government's case against McCambridge. There was evidence that on March 18, 1975, at approximately 10 a. m., a masked man entered the Boston Federal Savings and Loan Association in Peabody, Massachusetts, and announced a holdup. This caused a teller to panic, and she ran out the front door followed by the holdup man. A car was parked out front and, as the teller ran from the bank, a second masked individual got out of the passenger side and fired a shot at the teller which missed her. The car, driven by a third person, took off after both masked men jumped in. The getaway car, a Dodge Polara with New Hampshire plates KL35, was recovered very shortly thereafter in a nearby parking lot with its motor running.

No witness identified McCambridge as having been at the scene, but his fingerprints were found on the outside rear view mirror of the getaway car and on one of two vodka bottles found on the floor of the car. There was evidence that the car had been stolen the day before between 8 a. m. and 10 a. m. and its license plates replaced with the New Hampshire plates. It was also shown that, about a week before the attempted robbery, McCambridge using the alias John O'Donnell, bought a used Plymouth in New Hampshire, registered it there, receiving the New Hampshire plates which were later to be found on the getaway car. The night before the attempted robbery, less than 12 hours prior, he checked into a Boston hotel at 10:49 p. m., again using his alias, and indicating on his registration card that he was driving a Plymouth with New Hampshire license plates KL35.

It was established that McCambridge acquired a birth certificate in his assumed name two days after the robbery attempt and that on the following day he flew across the country to the State of Washington taking with him a suitcase and some papers that had been in the Dodge Polara getaway car when it was stolen the day before the attempted robbery. These items were the subject of the motion to suppress to which we now turn.

a. The Motion to Suppress

McCambridge moved to suppress the suitcase and various items taken from him when he was arrested in the State of Washington after the robbery. At the pretrial hearing on his motion the following appeared: At approximately 3:30 p. m. on April 5, 1975, (about three weeks after the attempted holdup in Peabody, Massachusetts) Washington State Deputy Sheriff Miller observed in that State a car driven by McCambridge traveling at 50 mph in a 55 mph zone following ten-to-twenty feet behind another vehicle. "Following too closely" is a misdemeanor under Washington law, see Wash.Rev.Code §§ 46.61.145, 46.61.010, and the sheriff had just stopped another vehicle for that offense when he observed McCambridge. Testifying at the suppression hearing, Sheriff Miller stated that normally he would issue a citation to a driver whom he stopped for following too closely, but that occasionally he might exercise his discretion and arrest the driver. The sheriff explained why he would arrest a driver for the traffic violation:

"There could be outstanding arrest warrants on these people. They could have a temporary driver's license, did not have a picture, did not show good identification. It could be in relation to a drunk driving charge, it could be many things. . . . Some of them I didn't feel that by letting them sign the citation we would ever see them again. Some of them have been out of state. The policy is that we take them in and make them post. Numerous different reasons."

Upon observing the station wagon McCambridge was driving violating the law by "following too closely", Sheriff Miller "paced the vehicle to ascertain the speed." After determining that the car was travelling below the speed limit, the Sheriff attempted to stop it, first by activating his rotating overhead light over a quarter-mile distance. It was broad daylight and the driver gave no indication at that time that he had noticed the police car. Miller next sounded his siren, at which point the driver "first looked over his shoulder, looking behind towards my patrol vehicle. Then he started to bend forward during this period of time, as if he was hiding something or pushing something down in the front part of his vehicle." This made the Sheriff suspicious. While the driver was making these gestures "(t)he vehicle was swerving onto the shoulder of the highway." Finally, Miller ordered the driver to stop through a loud-speaker and the driver complied. The distance traveled from the beginning of the pacing of the vehicle to the actual stop was "approximately a mile or two miles, total distance." At no time did the car accelerate.

McCambridge was asked for his driver's license and the car registration, both taken from an envelope which McCambridge got from the glove compartment then left on the front seat. The license was a temporary one which had expired, and on which, it turned out, the birth date had been altered. The name on the license, Edward Robbins, matched the name on the automobile registration. Miller asked for no additional personal identification.

Observing that McCambridge "had an odor of intoxicants about his person" and that there was a 90 percent empty half gallon of wine on the floorboards, Miller asked McCambridge to get out of the car for a sobriety test. A "finger and nose test" and a "balance test" as well as observation of McCambridge's gait, convinced Miller that McCambridge was in a satisfactory condition to drive.

Next, Miller asked McCambridge if he could look into the car. McCambridge said no and after some further discussion told Miller to get a search warrant. At that point, Miller became even more suspicious and advised McCambridge that he was under arrest. Miller testified that the charges were following too closely, expired operator's license, and failure to yield right of way for an emergency vehicle. 1 A pat-down search disclosed a box of shotgun shells but no weapons. McCambridge was handcuffed and placed in the rear of the police car.

Returning to the car McCambridge had been driving, Miller approached from the passenger side "(t)o obtain positive identification of the vehicle pursuant to impounding." At this point, he testified that he saw an inch or two of the end of the barrel of a sawed-off shotgun which was wrapped in a coat, partly under the front seat. Miller removed the weapon then went to the other side of the car to check for the vehicle identification number (VIN) which he found was gone. Under Washington law, a vehicle with a missing VIN:

"shall be impounded and held by the seizing law enforcement agency until the original number or marks are restored, or it is determined that the motor vehicle . . . was reported as stolen and it is returned to the rightful owner as provided in this subsection."

Wash.Rev.Code § 9.54.030(2). Miller removed everything in the vehicle that was in plain sight and that appeared to belong to McCambridge, including the envelope on the front seat, clothing, several sacks of food and a black suitcase. Miller looked through the envelope but did not search the suitcase at that time. All of the items were placed in the police car to be taken to the station.

The sheriff filled out an impound sheet on the car and after a wrecker towed it away to a security bunker, he took McCambridge to the courthouse for booking, then returned to the police station with the items removed from the car. There the contents of the suitcase were inventoried. A search warrant was obtained at a later time for a thorough search of the automobile. The contents of the suitcase, the suitcase itself, and papers from the envelope were ultimately introduced at trial.

After the hearing on the motion to suppress during which Deputy Sheriff Miller as well as the defendant testified, the district court on January 23, 1976, made the following ruling and findings on the motion to suppress:

"This motion is allowed with respect to the contents of the suitcase found in the defendant's vehicle and is otherwise denied. I find the arrest to have been for the purpose of justifying a search, but that there was probable cause for searching the...

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