U.S. v. Pavelski
| Decision Date | 21 April 1986 |
| Docket Number | Nos. 85-1551,s. 85-1551 |
| Citation | 789 F.2d 485 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rick Alan PAVELSKI, Thomas Michael Rudolph, and John Walter Rudolph, Defendants-Appellants. to 85-1553, 85-1742 and 85-1743. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Christopher Ford & Alan D. Eisenberg, Robert Courtney, Courtney & Pled, Jeffrey A. Kaufman, Milwaukee, Wis., for defendants-appellants.
Jan Kearney, Asst. U.S. Atty. (Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before BAUER and WOOD, Circuit Judges, and GRANT, Senior District judge. *
This appeal arises from convictions for two bank robberies. In the first, No. 84-CR-132, a jury found defendants-appellants guilty of the December 27, 1983 armed robbery of the Cudahy Marine Bank in Cudahy, Wisconsin, in violation of 18 U.S.C. Secs. 2, 2113(a) and 2113(d). A fourth robber, Gray, pled guilty and testified against the appellants. The trial court sentenced defendants-appellants, Pavelski and Michael Rudolph, to twenty-five years' imprisonment and defendant-appellant, John Rudolph, to eight years' imprisonment. The trial court ordered each to make restitution in the amount of $27,995.
In No. 85-CR-18, a jury convicted Pavelski of the November 23, 1983 armed robbery of the First State Savings and Loan in New Berlin, Wisconsin, in violation of 18 U.S.C. Secs. 2, 2113(a) and 2113(d), and Thomas Rudolph of simple bank robbery, in violation of 18 U.S.C. Secs. 2 and 2113(a). The trial court sentenced Pavelski to twenty-five years' imprisonment, and Thomas Rudolph to twenty years' imprisonment, both sentences to run consecutively to the appellants' previous sentences. The trial court ordered each to make restitution in the amount of $3,000.
Before each trial, the appellants moved to suppress evidence taken from them prior to their arrests. Both trial judges denied these motions, and appellants challenge the denials. John Rudolph also challenges the trial judge's denial of his motion for severance. We affirm the convictions.
The primary question in these appeals involves the evidence taken from the appellants when they were apprehenced in Portland, Oregon. The significant events leading to the appellants' capture follow.
On November 23, 1983, Pavelski, Thomas Rudolph and Gray, a co-defendant who testified pursuant to a grant of immunity for the instant armed robberies as well as two others, held up the First State Savings and Loan in New Berlin, Wisconsin. On December 27, 1983, those three, plus John Rudolph, held up the Cudahy Marine Bank in Cudahy, Wisconsin. The four fled and began a ten-month cross-country odyssey which took them to Illinois, Louisiana, Texas, Florida, Washington, D.C., back to Illinois, on to Arizona, Nevada, Montana, back to Nevada where they disposed of the weapons used in the Wisconsin armed robberies, on to California, Colorado, Nebraska, 1 South Dakota, North Dakota, back to Nevada, back to California and finally on to Oregon. The appellants and Gray spent most of the more than $80,000 that they had stolen from the Wisconsin banks.
At approximately 8:55 A.M. on October 6, 1984, the four were driving a car with Colorado license plates in Portland, Oregon. They made an abrupt right-hand turn which Deputy Sheriff Fitz of the Multonomah County, Oregon Sheriff's Department observed. The abrupt turn, the out-of-state plates and the four men in the car drew Deputy Fitz's attention. Deputy Fitz, an officer with fifteen years' experience, followed them in his patrol car. After noting that they were driving slower than the posted speed limit, the deputy discontinued his pursuit.
Deputy Fitz saw the car again in another location at approximately 10:28 A.M. He maneuvered his patrol car past the appellants' car in an effort to gain eye contact with one of them. None looked in his direction. Concluding that the lack of eye contact was unusual, Deputy Fitz turned around and began to follow the car. Deputy Fitz radioed for back-up help and began looking for a reason to stop the car. Before he found his reason, the appellants and Gray, of their own accord, pulled into a parking lot. Deputy Fitz stopped his patrol car behind them, and another uniformed Deputy Sheriff pulled his patrol car along the right of them. Deputy Fitz had no suspicion that they had violated any laws.
Pavelski exited the driver's seat and walked to the front bumper of the car. Deputy Fitz approached Pavelski and asked where they had been. Pavelski answered that they had become lost while looking for a house in the Troutdale area where a girl named Donna lived. Pavelski explained that he was from Colorado and produced a Colorado driver's license bearing the name Michael Scruggs. The deputy asked Pavelski how long he had been in Portland and Pavelski answered that he had been there two or three weeks. By this time, a police officer from Fairview, a neighboring community, had joined the two sheriffs. The Fairview officer parked his patrol car twenty to thirty feet in front of the appellants' car.
Seeking corroboration for Pavelski's story, Deputy Fitz stepped back to the left rear passenger door and tapped upon the window. Thomas Rudolph lowered the window and, after being asked, responded that they had been in Portland for two or three days. As Deputy Fitz questioned Thomas Rudolph, he noticed that Gray, who was sitting on the other side of the rear seat, was becoming extremely nervous and was perspiring visibly despite the cool temperature. These circumstances caused Deputy Fitz to become concerned about his personal safety.
Deputy Fitz asked the passengers for identification. They told the deputy that their identification had been stolen the previous day. Gray indicated that he might have some identification in his suitcase in the trunk. Because of his concern for his safety and the safety of the other officers, Deputy Fitz accompanied Gray to the rear of the car and carefully watched him rummage through his bag. Gray found no identification and Deputy Fitz saw nothing unusual. Gray re-entered the car. Deputy Fitz asked Pavelski if the vehicle contained any weapons. Pavelski answered that it did not.
While Deputy Fitz had no evidence that a crime had been committed, he did have a "gut feeling that things were real wrong." Transcript at 14-15, 29 (Feb. 4, 1985). As a result of that feeling, the deputy used his hand radio to signal a passing patrol car from Gresham, another neighboring community, which returned to join the other three officers in the lot. Also as a result of that feeling, Deputy Fitz had the appellants and Gray removed from their car one at a time, frisked, and placed in the rear of separate patrol cars from which they could not exit. Finally, not having reasonable suspicion that a crime had been committed but as a result of that gut feeling, Deputy Fitz searched the car. His search produced two Oregon and two Colorado license plates, a loaded Ruger M14 semi-automatic rifle, a loaded Smith and Wesson .357 caliber revolver, a pair of standard work gloves, two pair of yellow rubber gloves, radio guides containing the frequency of every police and fire department in the United States, a police scanner programmed to the frequency of Deputy Fitz's radio, three stocking caps with eye holes ripped into them, two pillow cases, the car's Colorado Vehicle Registration in the name of Michael Scruggs, maps of the Portland metropolitan area, yellow pages from the Portland phone book listing the savings and loan associations in the Portland area, and other incidental items.
After finding the weapons, Deputy Fitz arrested the appellants and Gray. The Government extradited them to Wisconsin where they stood trial for the two bank robberies. The trial courts admitted the evidence found in the search of their car in Portland. This evidence resembled the paraphernalia used in the Wisconsin bank robberies. Juries convicted them of the robberies and they appeal.
The appellants raise one issue:
I. Whether the trial court should have suppressed the evidence taken from the appellants' car in Portland?
John Rudolph raises a separate issue:
II. Whether the trial court abused its discretion in denying John Rudolph's motion for severance?
In their Motion to Suppress, appellants invoked the exclusionary rule to prevent the use of the seized evidence which they contend was taken in violation of the fourth amendment. The trial court found that the search was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and denied the motion.
The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure....
... [T]he rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures....
United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). This Court must consider whether the instant search and seizure was unreasonable.
"Not all police questioning of citizens implicates the Fourth Amendment." United States v. Borys, 766 F.2d 304, 308 (7th Cir.1985) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983)), cert. denied, --- U.S. ----, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986); see also United States v. Cordell, 723 F.2d 1283, 1285 (7th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693 (1984). In determining the threshold question of whether or...
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