U.S. v. Rice

• Decision Date: 04 August 1981
• Docket Number: No. 80-1806,80-1806
• Citation: 652 F.2d 521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger William RICE and James Gregory Williford, Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 521

652 F.2d 521

UNITED STATES of America, Plaintiff-Appellee, v. Roger William RICE and James Gregory Williford, Defendants-Appellants.

No. 80-1806.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 4, 1981.

Ward Casey, Fort Worth, Tex., for Rice.

Michael F. Lynch, Austin, Tex., for Williford.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Defendants, Roger William Rice and James Gregory Williford, each appeal their convictions for two counts of possessing and one count of conspiring to pass, utter, and possess counterfeit obligations of the United States with intent to defraud in violation of 18 U.S.C. §§ 371 and 472. In addition, Rice challenges his convictions for one count of passing and uttering a counterfeit $20 Federal Reserve Note. Williford charges (i) his arrest was illegal, making the search of his person improper, (ii) insufficient evidence was presented for a submission of the case to the jury on the issue of guilt, and (iii) District Court erred in refusing to suppress evidence of statements made both before and after his arrest. Joining Williford in these contentions, Rice also argues (iv) his in-court identification by one of the witnesses was so tainted as to render it unreliable, and (v) District Court improperly excluded evidence on the basis the proper predicate for admission was not laid. Finding the contentions of both defendants without merit, we affirm their convictions.

Fake Bills And False Names

Reviewing the evidence in a light most favorable to sustaining the verdict, the facts show Rice, Williford, and a third unidentified white male entered the Skillern's Drug Store in San Marcos, Texas, at approximately 7:00 p. m. on February 14, 1980. Williford and the unidentified man went to the magazine rack while Rice went to the counter and asked the sales clerk for a roll of film costing about three dollars. Rice gave the clerk a counterfeit twenty dollar Federal Reserve Note. The clerk noticed the bill appeared unusual, but rather than possibly embarrassing a customer needlessly, she completed the transaction by giving Rice the proper change for his purchase. Rice then left the store. Williford and the other man followed immediately thereafter and joined Rice in the mall in front of Skillern's.

After the trio was gone, the clerk reexamined the bill more closely. Concluding the bill was indeed counterfeit, she notified the manager who concurred in her opinion. They called the police and proceeded out into the shopping mall to see if the suspects could be spotted. Within minutes, the clerk was able to point out Rice, Williford, and the third man to the manager as the three men were headed for the parking lot. She subsequently returned to the store.

At that point, the unidentified third man disappeared, never to be seen again. About the same time, a San Marcos police officer arrived. The manager pointed out Rice and Williford to him as two of the men who had come into the store. The officer directed Rice and Williford over to his car and asked them for identification. They both claimed not to have any, being evasive and reluctant to give their names. Only after repeated questioning, Rice said he was David Rice.

While talking, the officer noticed Williford was carrying a wallet. After the officer asked if he had a driver's license in it, Williford produced one in the name of Lester McDowell.

The officer asked both men their date of birth. Rice responded with a birth date in 1959. The officer became suspicious as this date would have made Rice twenty-one years old, although he appeared to be at least twenty-five to thirty.

Once the officer obtained identification from Rice and Williford, the store manager pointed out Rice as the man who had passed the bill to the clerk. On examining this bill, the officer found it to be counterfeit.

Rice and Williford were then arrested and advised of their rights. As Williford was being handcuffed, he dropped his wallet. On picking it up and examining its contents, the officer found, along with some genuine cash, two other counterfeit $20 bills that resembled the one passed at Skillern's.

When Rice and Williford reached the police station, they were searched to provide an inventory of personal effects. Each was found to have two additional counterfeit bills. One counterfeit bill found in Rice's possession had the identical serial number as one found in Williford's possession.

Having been warned of their rights a second time, both Rice and Williford were questioned alternately by a Secret Service Agent. Both denied the presence of a third man at the mall. Rice told the Agent he was David Rice and he and Williford were hitchhiking to the Texas coast. He later admitted, however, he was really Roger William Rice and that he had failed to give his real identity as there were some outstanding warrants on him. When it was discovered the picture on the driver's license was not that of Williford, he admitted he was not Lester McDowell, also claiming he had not given his real identity as there were outstanding warrants on him. Upon each stating he would not discuss the counterfeiting matter, questioning ceased.

After the questioning, the Skillern's clerk observed Rice and Williford through a window in the booking area of the police station where they were being arraigned by the local magistrate. She identified them as the men who had been in the store, pointing out Rice as the man who had passed the bill.

Rice and Williford subsequently were charged, jointly tried, and convicted, from which they bring this appeal.

Intentional Acts Equal Probable Cause

Both Rice and Williford challenge the validity of their arrests for lack of probable cause. They contend because their arrests were not supported by probable cause, District Court erred in denying their pretrial and trial motions to suppress evidence seized from their persons. More specifically, Williford complains he was arrested and searched because of (i) his proximity or association with a person suspected of committing an illegal act and (ii) his less than cooperative attitude when the officer stopped and frisked him.

The Government argues in reviewing these contentions we are bound by application of Texas law which permits an officer to arrest without a warrant where he believes "upon the representation of a credible person, that a felony has been committed and that the offender is about to escape ...." Article 14.04, Tex.Code Crim.Pro.Ann. (Vernon's 1977); Holt v. State, 538 S.W.2d 125, 126-27 (Tex.Cr.App.1976). Under that standard, the Government contends in light in the totality of the evidence and the exigency of the circumstances, the officer was justified in determining sufficient probable cause existed to arrest both Rice and Williford. The Government consequently claims District Court was correct in upholding the actions of the officer.

Concluding the Government is correct in its general assertion the lawfulness of an arrest by state officers is determined by the law of the state where the arrest took place, we emphasize the application of state law is subject to federal constitutional standards. United States v. Fossler, 597 F.2d 478, 482 n.3 (5th Cir. 1979). See also Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 1631, 10 L.Ed.2d 726, 740 (1963); United States v. Lipscomb, 435 F.2d 795, 798 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). Thus, we also must assure ourselves a reasonable man, standing in the shoes of the arresting officer, could have believed in light of the facts and circumstances an offense had been committed and that a particular defendant committed it. United States v. Perez, 526 F.2d 859, 862 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976).

With respect to Rice, we have no doubt sufficient probable cause existed to support his arrest. Before he was placed under arrest he (i) failed to give proper identification on the officer's initial request, (ii) gave a birth date placing his age obviously too young for his appearance, (iii) passively resisted the officer during frisking, and (iv) was positively identified by the store manager as the one who had passed the bill which the officer independently concluded to be counterfeit.

Although Williford did not actively participate in passing the bill, but was merely with Rice, and it is common for members of the public to be frightened, become nervous, or even embarrassed when stopped by a police officer, ¹ especially when they don't know his purpose, we conclude the facts of this case negate Williford's contentions regarding the lack of probable cause for his arrest. When viewed in totality, not a vacuum, we find the officer had before him information that (i) three men had passed a counterfeit bill at Skillern's Drug Store, (ii) Williford was with Rice, (iii) they both were reluctant to identify themselves on the officer's request, initially only giving their first names, (iv) both denied possessing any identification, (v) it was only on his specific notice of the wallet in Williford's pocket and repeated request for identification that Williford produced the driver's license which bore another name and picture, and (vi) the bill Rice was charged with passing was indeed counterfeit. While Williford's reliance on United States v. Barber, 557 F.2d 628, 632 (8th Cir. 1977), has some appeal, the facts of that case do not preclude a finding of probable cause here. As the Government pointed out in oral argument, Williford's action in seeking to (i) hide his true identity, (ii) evade giving even his last name, and (iii) avoid giving identification until the officer spotted his wallet, when combined with the other factors, establish the officer...