U.S. v. Posey

• Decision Date: 17 November 1981
• Docket Number: No. 80-2002,80-2002
• Citation: 663 F.2d 37
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Dwight POSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 37

663 F.2d 37

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Dwight POSEY, Defendant-Appellant.

No. 80-2002.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 1981.

Decided Oct. 21, 1981.

Rehearing Denied Nov. 17, 1981.

Edward B. Arnolds, The John Marshall Law School, Chicago, Ill., for defendant-appellant.

Bernard L. Pylitt, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and MAROVITZ, Senior District Judge. ^*

MAROVITZ, Senior District Judge.

Defendant Ronald Posey brings this appeal seeking to overturn his conviction of bank robbery, 18 U.S.C. § 2113(d), and conspiracy to commit bank robbery. 18 U.S.C. § 371. The only issues raised by Posey on appeal are fourth amendment issues concerning the search and seizure of an automobile while being driven by Posey that produced a chrome-plated .32 caliber revolver used in the bank robbery. For the reasons set forth below, we affirm Posey's convictions.

I

Posey's convictions stem from the October 12, 1979 robbery of the Hatfield, Indiana branch of the Dale State Bank. The Hatfield bank was robbed during business hours by four men wearing Halloween masks. One of the men was armed with a rifle and another was armed with a semi-automatic revolver. Witnesses to the robbery were unable to provide a detailed description of any of the robbers. The robbery took about four minutes and netted $64,281.00.

About three months later, on the Wednesday afternoon of January 16, 1980, Posey and a male companion were observed by Chief of Police Terry Graham of Steele, Alabama while Posey was driving a white Ford automobile several times past a bank in Steele. According to Chief Graham, Posey and his companion were observing both the bank and himself in a "suspicious manner." There were other businesses in the vicinity of the Steele bank, all of which were customarily closed on Wednesday afternoons. The Steele bank had been recently robbed. After Posey drove away from the vicinity of the bank, Chief Graham issued a radio bulletin to all law enforcement officers in the St. Claire County, Alabama area providing a description of the Ford automobile and instructing anyone spotting the automobile to "check ... (the passengers) ... out and see what they were up to." Tr. 132.

Approximately fifteen minutes later, Posey was stopped about fifteen miles outside of Steele by the Springville, Alabama Assistant Chief of Police. The Springville officer asked Posey what he had been doing in Steele, and Posey replied that he was looking for a drugstore in which he could purchase medicine for a toothache his companion was suffering from. The Springville officer then contacted Chief Graham while detaining Posey for approximately twenty minutes until Chief Graham arrived. When Chief Graham arrived, he searched the automobile. During the search, Posey and his companion stood outside and to the rear of the automobile. The .32 caliber revolver used in the Hatfield bank robbery was found under the driver's seat, another revolver was found under the passenger's front seat, and other guns were found in the trunk.

Posey was operating the automobile without a valid driver's license in his possession. Posey informed the officers that the automobile was registered in the name of his wife, Mrs. Linda Posey. Further, Posey told the officers that his wife possessed valid permits for the guns found in the car.

Certain other facts surrounding the search of the automobile are disputed or unclear from the record. It is disputed whether Posey was asked to produce a driver's license before or after the search. Chief Graham testified that the Springville officer was issuing Posey a traffic citation for driving without a license when he arrived at the scene of the stop. Posey's testimony, on the other hand, is inconsistent as to whether he was asked to produce a driver's license before or after the search. It is also disputed as to whether the search was consented to by Posey. Finally, the record is unclear as to whether Posey's traffic arrest caused him to be placed in a custodial arrest. Chief Graham testified that it was common procedure in St. Claire County to place a nonresident in custodial arrest for a traffic violation if he were unable to post a bond, and that Posey had insufficient money on his person to post bond. The citation, however, was for an appearance at a later date, and Posey testified that he was never asked to post a bond.

Posey, Jerry Sanders, Roy Flowers, and Henry Wade were ultimately indicted for the Hatfield bank robbery. Prior to his trial, Posey sought to suppress the fruits of the January 16, 1980 search of his wife's automobile. The district court ruled that Posey's behavior in the vicinity of the Steele bank constituted reasonable grounds for the stop. The district court further ruled that the search of the automobile was not consented to, but that the traffic arrest justified the search under the front seat of the automobile. As to the search of the trunk, the district court, reasoning that the search was not custodial, found the search unreasonable. Thus, Posey's motion to suppress was denied as to the .32 caliber revolver and the other revolver found under the front seat and granted as to the guns found in the trunk.

At Posey's trial, Sanders and Wade testified as government witnesses pursuant to plea agreements. ¹ Sanders testified that the Hatfield bank robbery was committed by Posey, Wade, Flowers, and himself, although Sanders admitted that he initially informed police investigators that Jimmy Drysdale, not Posey was the fourth robbery participant. Sanders testified at trial that the Hatfield bank robbery was originally planned by Flowers, Wade, Drysdale, and himself, but that Drysdale disappeared and was replaced by Posey some time before the robbery. As to Posey's participation in the planning of the robbery, Sanders testified, inter alia, that Posey, Flowers, Wade, and himself met in the Busy Body Lounge in Evansville, Indiana on October 10, 1979 to discuss the robbery. Sanders testified that while at the lounge the four men were for a short time joined by Ms. Wilma Byrne, an employee of the lounge. Further, Sanders testified that on October 11, 1979 the four men went to a department store and purchased the clothing worn during the robbery and that he and Wade purchased an automobile used in the robbery.

Sanders's testimony describes in detail the robbery itself, including the clothing each participant wore. Sanders testified that he was armed with a .32 caliber chrome-plated revolver and that Posey was armed with a .30-30 rifle. Sanders identified the .32 caliber revolver obtained in the January 16, 1980 search as the same one used by him in the robbery and stated that he had been given the revolver by Posey. Chief Graham testified, over Posey's objection, to the details of the January 16, 1980 search that produced the revolver.

Wade's testimony was consistent with Sanders's testimony in every respect. Sanders's and Wade's testimony as to the clothing worn by the men and their positioning while in the bank was corroborated by bank photographs.

Mrs. Byrne also testified for the government. She corroborated Sanders's and Wade's testimony as to their October 11, 1979 meeting at the Busy Body Lounge with two other men, positively identifying Posey as one of the two men with Sanders and Wade. A government agent testified that prior to trial Byrne identified Posey from a photographic line-up.

To rebut Sanders's testimony, Posey testified that Sanders and he had had a quarrel while in prison and that Sanders had vowed to "get even" with Posey. Posey's testimony in this regard was supported by the testimony of several other witnesses.

Posey also presented an alibi defense at trial, asserting that he was in Cullman, Alabama on the day of the Hatfield bank robbery. Mrs. Linda Posey, Mrs. Edna Posey, the defendant's mother, Verna Baker, the defendant's mother-in-law, and James Allen, a friend of the Poseys and former husband of one of Linda Posey's sisters, all testified that Posey was in Cullman, Alabama on October 11, 1979. Linda Posey further testified that the .32 caliber revolver belonged to her and that she usually kept the revolver under the front seat of her yellow Lincoln automobile. She testified that her husband loaned the Lincoln automobile to Wade sometime in October 1979.

The government produced a series of witnesses rebutting Posey's alibi. Mrs. Baker was called by the government and testified that her previous testimony on Posey's behalf had been incorrect both insofar as she testified that she had not seen the Poseys in possession of a large sum of money shortly after October 12, 1979 and insofar as she testified that she had not heard Mrs. Linda Posey warn anyone not to provide testimony contrary to Posey's alibi defense. When called by the government, Mrs. Baker testified that she did observe the Poseys in possession of a large sum of money shortly after the robbery. Also, Mrs. Baker testified that she heard Mrs. Linda Posey threaten Mrs. Baker's daughter Brenda not to testify against Posey at his trial. Rhonda Barbee, Linda Posey's sister, testified that Linda Posey had told her that she had better provide testimony in support of Posey's alibi testimony and that if anyone supplied testimony contrary to Posey's alibi they would be killed. Ms. Barbee stated she could not recall if Posey was in Cullman, Alabama on the day of the robbery. Mr. J. C. Laningham was called by the government and testified that Linda Posey approached him prior to trial and suggested that he fabricate testimony supportive of Posey's alibi.

After deliberating for approximately three hours, the jury returned a verdict of guilty on both counts of the government's indictment against Posey. Posey was subsequently sentenced by the district court to twenty years on the robbery count and...