U.S. v. Robertson

• Decision Date: 12 September 1979
• Docket Number: No. 78-2805,78-2805
• Citation: 606 F.2d 853
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny Bob ROBERTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 853

606 F.2d 853

UNITED STATES of America, Plaintiff-Appellee, v. Johnny Bob ROBERTSON, Defendant-Appellant.

No. 78-2805.

United States Court of Appeals,

Ninth Circuit.

Sept. 12, 1979.

Charles G. Rubin, Los Angeles, Cal., for defendant-appellant.

Suzanne B. Conlon, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN and KENNEDY, Circuit Judges, and EAST, ^* District judge.

EAST, Senior District Judge.

The appellant Johnny Bob Robertson (Robertson) and codefendant Christopher Walker (Walker) were tried before a jury for the armed robbery of a federally insured savings and loan association. (18 U.S.C. § 2113(a), (d)). Robertson was convicted, while Walker was acquitted on a motion for directed verdict. On appeal from his judgment of conviction and sentence to custody, Robertson claims that the District Court improperly denied three motions: (1) a motion to suppress pretrial identifications of him made from an allegedly suggestive photospread, and to suppress in court identifications allegedly prejudiced by those prior identifications, (2) a motion to conduct a lineup, and (3) a motion to suppress evidence and statements obtained as a result of a warrantless entry into a dwelling. We remand.

FACTS

In the early afternoon of January 27, 1978, a man, later identified as Robertson, entered the Citizen's Savings and Loan Association in Harbor City, California. His pacing back and forth and other suspicious actions attracted the attention of four tellers, and one of them activated a hidden surveillance camera. He left without transacting any business. Within an hour, the Association was robbed by two armed men, one wearing a ski mask over his face and the other wearing a knit cap and a mask made from a nylon stocking. Two witnesses identified Robertson as the man they saw approaching the bank, pulling a nylon stocking over his head. Five witnesses testified that the man who had earlier "cased" the bank was one of the robbers, and all of them identified Robertson as that man. Numerous surveillance camera photographs were taken of the pair.

Immediately after the robbery, the police were given descriptions of the robbers, as well as the make and license number of the getaway car. The vehicle was soon found abandoned near the home of Walker's mother, and a bystander reported seeing two men meeting the general description of the robbers running from the vehicle. Sheriff's deputies placed the house under surveillance and within an hour observed Robertson's cousin, William Redick (Redick), pick up a man meeting the description of one of the robbers. They were followed to Redick's home and were observed entering the house.

Because of his previous experience with similar robberies in the area, the Federal Bureau of Investigation ordered Special Agent Price (Price) to take charge of the operation. Working on another investigation in a neighboring city, Agent Price received his assignment by radio and proceeded to join the surveillance team at the Redick home. Although his only detour was a stop at his office to pick up a file, distance and traffic congestion delayed his arrival for over two hours.

Apparently Agent Price knew that Walker fit the description of one of the robbers, and that Walker had previously been in possession of the getaway car. He also knew that Redick was awaiting sentencing after an armed bank robbery conviction. Agent Price was able to communicate with his office by radio, but it is unclear exactly when and how much of the information known to other police officers was communicated to him before his arrival.

Upon arrival at the Redick home, Price conferred with other officers and obtained an opinion from a Deputy United States Attorney by radio that they had probable cause to make an arrest. Although he had no warrant, Agent Price immediately knocked on the door and identified himself as an FBI agent. Redick opened the door and Price, with several other FBI agents and two local officers, entered. Once inside, the other officers searched the house while Price questioned Redick. Redick denied Robertson matched the description given to the police, and was wearing pants similar to those described by several witnesses, but no shirt. When one of the officers questioned him about a shirt found lying on the bed, he admitted that it was his and an officer tied it around his neck. Robertson was arrested, taken to the police station, and charged with the robbery. The shirt was routinely taken from him and inventoried at the jail along with his other possessions. Two months later the shirt was taken from the jail for use as evidence. Later on the day of the robbery, the police legally recovered a jacket, knit cap, and ski mask, identified as those worn in the robbery, from the home of Walker's mother.

any involvement in the crime, but told Agent Price that his cousin "Johnny Bob" was "the man (they were) looking for." A search of the house revealed Robertson watching television in a bedroom.

DISCUSSION

Issue I. Photospread.

Some time within two months of the robbery, two witnesses were shown a photospread containing Robertson's picture and asked to identify either of the robbers. One witness pointed out Robertson and the other was unable to make an identification.

Robertson then moved to suppress the identification, arguing that the photospread was unduly suggestive in that he was pictured with a hairstyle that was significantly larger and longer than those shown in any of the other photographs. Robertson also made his motion to suppress any in court identifications of him, arguing that the identifying witness had been prejudiced by viewing the photospread.

Mere variations in appearance among persons or photographs presented to a witness do not automatically invalidate a pretrial identification. United States v. Collins, 559 F.2d 561 (9th Cir.), Cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); United States v. Crawford, 576 F.2d 794 (9th Cir.), Cert. denied, 439 U.S. 851, 99 S.Ct. 157, 58 L.Ed.2d 155 (1978). Before a conviction can be reversed on such grounds, the pretrial identification procedure must have been "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); United States v. Williams, 436 F.2d 1166 (9th Cir. 1970), Cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971). That is not the case here. Because the robbers wore knit caps, completely hiding their hair, the differences in hairstyle could not have been a substantial factor in identifying Robertson as one of them.

Although the hairstyle of the person who "cased" the bank prior to the robbery was readily apparent, any suggestiveness in the photographs that may have contributed to the identification of Robertson as that person was clearly harmless error. At trial, Robertson admitted that he was present in the bank before the robbery, but conducted no business there; surveillance photographs indicated that he was the object of the teller's suspicions; and several witnesses who had not viewed the photospread identified him as the man they had seen.

The District Court did not err in denying those motions.

Issue II. Lineup.

The District Court denied Robertson's motion that the Government be compelled to conduct a lineup for all witnesses who had viewed the photospread for the purpose of counteracting any improper influence it may have had. Robertson argues here that the denial violated the due process guarantee of the Fifth Amendment of the United States Constitution.

An accused has no absolute or constitutional right to a lineup. The decision to conduct a lineup is solely within the discretion of the trial judge. In the absence of abuse of that discretion, denial of such a motion is not reversible error. United States v. Kennedy, 450 F.2d 1089 (9th Cir. 1971), Cert. denied, 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1972); United States v. MacDonald, 441 F.2d 259 (9th Cir.), Cert. denied, 404 U.S. 840, 92 S.Ct. 133 30 L.Ed.2d 74 (1971). In view of the fact that Robertson had significantly altered his appearance by the time of the motion, that there were several positive identifications unrelated to the photospread, and that the witness who identified Robertson from the photospread had an ample opportunity to observe the robber, denial of the motion clearly was not an abuse of discretion. United States v. Estremera, 531 F.2d 1103 (2d Cir.), Cert. denied, 425 U.S. 979, 96 S.Ct. 2184, 48 L.Ed.2d 804 (1976).

Issue III. Motion to Suppress Evidence.

Robertson primarily urges us to reverse his judgment of conviction on the ground that the District Court incorrectly denied his motion to suppress evidence and statements obtained as a result of the warrantless entry into the Redick home. ¹ He argues that the entry and arrest violated both the probable cause and warrant requirements of the Fourth Amendment of the United States Constitution. ² The first argument is unfounded.

The Fourth Amendment does not require that an officer have evidence sufficient to support a conviction before searching a dwelling. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). All that is necessary is a reasonable belief, evaluated in light of the officer's experience and the practical considerations of everyday life, that the suspects have committed a crime and are to be found in the place to be searched. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Green, 525 F.2d 386 (8th Cir. 1975).

That standard has been met here. Agent Price knew that the getaway car had been abandoned near the home of Walker's mother, and that two men...