U.S. v. Rose

Decision Date09 September 1976
Docket NumberNo. 76-1144,76-1144
Citation541 F.2d 750
PartiesUNITED STATES of America, Appellee, v. Charles E. ROSE, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Edwin L. Noel, St. Louis, Mo., for appellant.

David Rosen, Asst. U. S. Atty., St. Louis, Mo., for appellee; Donald J. Stohr (former U. S. Atty.), Barry A. Short, U. S. Atty., St. Louis, Mo., effective May 15, on brief.

Before VOGEL, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

In May, 1975 Charles E. Rose, appellant here and defendant below, was tried before a jury in the Eastern District of Missouri 1 on a charge of armed robbery of the City Bank & Trust Company of Moberly, Missouri, which is located in Randolph County in the Eastern District of that State. 18 U.S.C. § 2113(a) and (d). The defendant was found guilty and was sentenced to imprisonment for a term of twenty years.

The defendant appealed assigning a number of alleged errors of the trial court, including the claim that that court had erroneously refused to suppress as evidence a confession that he had given to agents of the Federal Bureau of Investigation on January 22, 1975 while he was in state custody following an initial period of federal custody.

The case was heard by a panel consisting of retired Associate Justice Clark of the Supreme Court of the United States, sitting by designation, and by Circuit Judges Lay and Ross. That panel rejected all of defendant's arguments except his contention that his confession should have been suppressed. With respect to that contention the court remanded the case for further hearing and findings. United States v. Rose, 526 F.2d 745 (8th Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). See also the related case of United States v. Kelley, 526 F.2d 615 (8th Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976).

After the remand counsel for the defendant filed a motion for a new trial with the confession suppressed. An evidentiary hearing was held and testimony was taken. On February 18, 1976 the district court filed a Memorandum which amounted to a second refusal to suppress the confession and a refusal to grant a new trial. The instant appeal followed.

The controlling facts are substantially as follows:

The bank was robbed during the early evening hours of Friday, January 10, 1975. Six men were involved in the robbery although only three of them actually entered the bank. In addition to the defendant the men involved were Gary Roberson, Tyrone J. Kelley, Thomas Edward Simmons, Jr., Theopolis Wilson and Baron Stamphill. Immediately after the robbery the money that had been stolen from the bank, amounting to about $14,000.00, was hidden in a trash can near the bank. Roberson was arrested as he tried to recover the money from the can. The other robbers were not apprehended at the time and appear to have made their escape from Moberly returning to their homes in Kansas City, Missouri, which is located in Jackson County in the Western District of that State.

Roberson confessed his complicity in the crime immediately and implicated Rose and the other participants in the robbery. The FBI had an understanding with Roberson that the fact of his confession would not be revealed until the other robbers were apprehended.

On January 11 an informant of the Kansas City Police Department overheard a conversation in which Rose admitted his complicity in the bank robbery the day before. Rose was arrested by local officers in Kansas City either on that day or on the following day and was confined in the Jackson County Jail. While there, he was interviewed by the FBI and made an exculpatory statement.

On January 12 Sheriff Orville Price of Randolph County returned from a Florida vacation and learned of the robbery from two of his deputies. He learned that a number of men were involved, and that one of them had confessed. The Sheriff discussed with the local Prosecuting Attorney, Thomas J. Marshall, who had taken office on January 1, the matter of having felony warrants issued for the robbers. However, the Sheriff was not able to give the Prosecuting Attorney any definite information as to the identities of the men involved, and since the FBI was actively investigating the case, there seemed to be no urgency in the matter from the standpoint of the state officers, and no warrants were issued at the time.

On January 13 Special Agent William Duncan of the FBI filed a sworn and detailed complaint against Rose with United States Magistrate Lund in St. Louis, and a warrant for the arrest of Rose was issued. The affidavit of Special Agent Duncan revealed, among other things, that an "active participant" in the robbery had confessed and had implicated Rose. The affidavit identified Roberson as one of the robbers, but it did not identify him by name as the active participant who had confessed.

Rose was promptly taken into federal custody in Kansas City and was taken before the United States Magistrate there. That arrest may conveniently be called the "first arrest" of Rose.

The Magistrate at Kansas City presumably advised defendant of his rights including his right to a preliminary hearing as provided by Fed.R.Crim.P. 5(c). It does not appear that the defendant asked for an attorney or that an attorney was appointed to represent him. However, he was not willing to waive preliminary hearing, and such a hearing was scheduled for January 20.

The federal grand jury for the Eastern District of Missouri was scheduled to meet during the week beginning on January 20, but it was evidently not felt that an indictment could be obtained against Rose and Simmons, who was also in custody in Kansas City, prior to the scheduled preliminary hearing. 2 It appears that an Assistant United States Attorney at Kansas City made an effort to obtain a short postponement of the hearing but was not successful.

At the preliminary hearing the burden would have been upon the government to introduce evidence establishing the existence of probable cause to hold the defendant for trial. Fed.R.Crim.P. 5.1(a). And a failure on the part of the government to meet that burden would require the federal magistrate to dismiss the complaint and discharge the defendant. Fed.R.Crim.P. 5.1(b). In order to meet its burden the government would have been required to call Roberson as a witness or at least to reveal the fact that he had confessed and had implicated others including Rose.

As of January 17 Kelley and Wilson were still at large, and they were considered to be dangerous. If they were still at large on January 20, disclosure of the fact and contents of Roberson's confession would have violated the agreement that the government had made with Roberson.

In such circumstances Assistant United States Attorney Terry Adelman of the Eastern District of Missouri, who was in over-all charge of the prosecution, decided that the government would not introduce any evidence at the hearing on January 20. His counterparts in Kansas City were advised of that determination, and naturally Special Agent Duncan also knew of it.

On January 17 Special Agent Duncan advised Prosecuting Attorney Marshall of the situation and of the fact that Rose would in all probability be released from federal custody at the conclusion of the proceeding before the Magistrate on January 20. Duncan was advised by Marshall that state officers would be on hand to arrest Rose should the federal Magistrate set him at liberty. Duncan conveyed that information to Adelman who passed it on to the United States Attorney's office in Kansas City.

On Saturday, January 18, Prosecuting Attorney Marshall applied to a Randolph County Magistrate for a warrant for the arrest of Rose. Mr. Marshall filed a sworn complaint with the Magistrate which simply charged that Rose had robbed the Moberly bank in violation of § 560.120 of the Revised Statutes of Missouri. Neither the complaint nor the warrant that the Magistrate issued set out any facts from which the existence of probable cause to believe that Rose had been involved in the bank robbery could be inferred. No testimony was taken before the Magistrate prior to the issuance of the warrant although in his testimony at the post-remand hearing Mr. Marshall recalled that he did discuss the case informally with the Magistrate and gave him some information about the case.

As indicated, the warrant was issued and placed in the hands of Sheriff Price for service. The warrant was to be served in Jackson County; in such circumstances the warrant should have been authenticated by the Clerk of the County Court of Randolph County or it should have been presented prior to service to a magistrate in Jackson County for endorsement. V.A.M.S. § 544.100. Neither of those steps was taken.

On January 20 the United States Magistrate in Kansas City convened his hearing; the government produced no evidence and Rose was discharged from custody. As he undertook to leave the United States Courthouse, he was arrested by Sheriff Price and carried back to Randolph County.

Upon his arrival in Randolph County, the defendant was taken before the local magistrate who had issued the warrant. He was arraigned and was committed to jail in default of bail. No preliminary hearing was held.

On January 22 the defendant was interviewed in the jail by one or more FBI agents and made the confession here in question. He does not claim that the confession was not preceded by proper warnings as to his rights, and he does not contend that the confession was the product of force, threats, promises or improper inducements. He was not questioned at any time by the local officers.

On January 23 the federal grand jury at St. Louis returned an indictment charging Kelley, Rose, Simmons and Wilson with the Moberly robbery. On January 24 Rose was arrested by Deputy United States Marshals and was removed from the ...

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