U.S. v. Savoca

• Decision Date: 20 September 1984
• Docket Number: No. 83-3510,83-3510
• Citation: 739 F.2d 220
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas James SAVOCA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 220

739 F.2d 220

UNITED STATES of America, Plaintiff-Appellee, v. Thomas James SAVOCA, Defendant-Appellant.

No. 83-3510.

United States Court of Appeals Sixth Circuit.

Argued May 1, 1984.

Decided July 17, 1984.

Opinion on Granting of Rehearing Sept. 20, 1984.

Carl H. Miller (argued), Painesville, Ohio, for defendant-appellant.

J. Matthew Cain (argued), Randolph Baxter, Asst. U.S. Attys., Cleveland, Ohio, for plaintiff-appellee.

Before JONES and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Thomas James Savoca appeals from his conviction by a jury on two counts of bank robbery. 18 U.S.C. Sec. 2113(a) and (d). We hold that the search warrant used to seize incriminating evidence from a motel room occupied by Savoca at the time of his arrest was invalid under this court's ruling in United States v. Hatcher, 473 F.2d 321 (6th Cir.1973). We therefore reverse the defendant's conviction and remand this case for a new trial.

I.

On June 3, 1981, a single assailant robbed the State Bank and Trust Company in Painesville, Ohio and escaped with almost $99,000. The assailant was armed and wore a rubber mask to conceal his identity. Thereafter, on October 27, 1981, two men robbed the Firestone Bank in Brunswick, Ohio of almost $69,000. These robbers were also armed and also wore rubber masks. Finally, on January 13, 1982, three armed assailants robbed the Andover Bank in Austinburg, Ohio and escaped with almost $146,000. Like the two previous robberies, these men wore rubber masks to hide their identity.

The ensuing FBI investigation resulted in the issuance of federal arrest warrants which charged Savoca and an accomplice, James Carey, with the Andover Bank robbery. These warrants were issued on April 19, 1982, or approximately three months after the robbery. Prior to the issuance of the arrest warrants, FBI agents discovered that Savoca and his wife were living in Phoenix, Arizona. Armed with this information, FBI agents in Phoenix conducted a series of "spot checks" of Savoca's residence to determine if the residence was occupied and to identify any vehicles in the driveway. The agents also staked out room 135 at the Arizona Ranch House Inn after one agent followed a vehicle from Savoca's residence to that address. The room was registered under the name of George Goodson, but one agent recognized that name as an alias used by James Carey. At approximately 12:30 p.m. on April 20, 1982, several agents saw a small white station wagon pull up in front of room 136. Two men exited the vehicle and proceeded immediately into room 135. At this point, the agents knew of the outstanding arrest warrants for Savoca and Carey and thus the agents formulated an arrest plan. Shortly thereafter, Savoca and Carey exited room 135 and were placed under arrest. The record also indicates that Carey was shot when he attempted to re-enter the motel room.

Following the arrests, the agents secured a search warrant which authorized a search of the motel room for "weapons, disguises, U.S. currency, and ficticious identification." ¹ The supporting affidavit reads as follows:

Affiant learned from James Cornett, F.B.I. Agent, that Federal Bureau of Investigation Agents of the Phoenix, Arizona Office were at 5600 North Central, ARIZONA RANCH HOUSE INN, Room 135, conducting a surveillance on two known bank robbery suspects, identified as JAMES GERMIS CAREY, W/M 10-4-32, and THOMAS JAMES SAVOCA, W/M 2-10-52. Both subjects had outstanding Federal warrants, charging them with Bank Robbery, out of Austinburg, Ohio. They both were seen in Room 135, April 19 and 20, 1982.

At approximately 12:48 p.m., SUBJECT THOMAS J. SAVOLA [sic] exited Room 135 and was getting into the 1982 Buick, Ohio plates, BLU-212, when subject was taken into custody by Federal Bureau of Investigation Agents. The second subject, JAMES CAREY, started back into Room 135 and was shot by Steve Chenoweth F.B.I. Agent, who believed he was going for a weapon. Both subjects were taken into custody by Federal Bureau of Investigation Agents at 5600 North Central.

Both subjects, JAMES G. CAREY and THOMAS J. SAVOCA, are responsible for approximately four (4) bank robberies in Northeastern Ohio and Northwestern Pennsylvania. Information was that subject CAREY wouldn't be taken alive.

The search of the motel room resulted in the seizure of, inter alia, several handguns, several pieces of false identification, and several plastic masks. This evidence was introduced against Savoca at trial. Savoca was later convicted by a jury on two counts of bank robbery. 18 U.S.C. Sec. 2113(a) and (d). Defendant appeals.

II.

The defendant initially contends that he was denied his statutory right to a speedy trial under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. ² The Speedy Trial Act requires that a defendant be tried within 70 days from the filing date of the information or indictment, or from the date the defendant first appears before a judicial officer of the court in which the charge is pending, whichever occurs later. 18 U.S.C. Sec. 3161(c)(1). The computation of this 70-day limit is subject to excludable delay attributable to motions practice as well as other particularized delays set out in Sec. 3161(h)(1)-(7). In addition, Sec. 3161(h)(8)(A) provides that the court may exclude any period of delay resulting from a continuance granted by the judge on his own motion or at the request of either party "if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." These findings must, however, be set forth in the record. 18 U.S.C. Sec. 3161(h)(8)(A). In the present case, the defendant was arraigned on May 12, 1982. Trial commenced on April 28, 1983, or 351 days after arraignment. The issue, therefore, is whether at least 281 of those days are properly excludable under the Act.

On May 12, the date of defendant's arraignment, the government filed a motion to obtain hair samples from the defendant. This motion was granted by the court without a hearing on June 14, 1982. The disposition of this motion was, in our opinion, "prompt" within the meaning of 18 U.S.C. Sec. 3161(h)(1)(F), ³ and thus the delay caused by this motion is properly excludable. During the pendency of the government's motion, the defendant on June 2 filed several motions, including a motion for reduction of bond with a request for an oral hearing. The hearing was held on June 23 and the motion was later denied on July 21. The time period from the filing of this motion through the conclusion of the June 23 hearing is clearly excludable under Sec. 3161(h)(1)(F), United States v. Richmond, 735 F.2d 208, 213 (6th Cir.1984); United States v. Campbell, 706 F.2d 1138, 1143 (11th Cir.1983), and the time period from the conclusion of the June 23 hearing through the date of the ruling is also excludable under Sec. 3161(h)(1)(J). ⁴ Richmond, at 213. Accordingly, the entire 71-day period from May 12 to July 21 is properly excludable.

Following the court's disposition of defendant's motion to reduce bond, eight nonexcludable days passed. On July 30 1982, defense counsel filed a motion for leave to withdraw. Substitute counsel did not, however, notify the trial court of his appearance as counsel until August 2. This resulted in four more excludable days. 18 U.S.C. Sec. 3161(h)(1)(F). Forty-eight nonexcludable days then passed until September 20, when the defendant filed his motion to dismiss the indictment under the Speedy Trial Act. After one more excludable day, 18 U.S.C. Sec. 3161(h)(1)(F), the district court on September 22 ordered a continuance on its own motion pursuant to 18 U.S.C. Sec. 3161(h)(8)(A). This continuance remained in effect until the commencement of trial on April 28, 1983.

Upon careful consideration, we hold that the delay caused by this continuance is excludable under Sec. 3161(h)(8)(A). When granting an "ends of justice" continuance under Sec. 3161(h)(8)(A), the court must consider, inter alia, whether the failure to grant the continuance "would be likely to make a continuation of such proceeding impossible." 18 U.S.C. Sec. 3161(h)(8)(B)(i). In this case, the district judge stated in his written order that he had suffered a heart attack on July 25, 1982 and that he had undergone quadruple by-pass surgery the following day. The judge also indicated that he was incapacitated and that he was under the strict care of a cardiologist. Illness of the trial judge was clearly intended to be considered in determining whether the failure to grant a continuance would make "continuation of [the] proceeding impossible." 18 U.S.C. Sec. 3161(h)(8)(B)(i); Richmond, at 216; United States v. Nance, 666 F.2d 353, 358 n. 11 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). See also S.Rep. No. 1021, 93d Cong., 2d Sess. 40 (1974) (Senate Report identifies illness of presiding judge as sufficient reason to grant "ends of justice" continuance).

According to our calculations, 8 nonexcludable days passed from July 21 to July 30 and an additional 48 nonexcludable days passed from August 2 to September 20. Since the total number of nonexcludable days is less than 70, we hold that no violation of the Speedy Trial Act occurred.

III.

Savoca also contends that the search warrant is invalid because the supporting affidavit did not establish probable cause to believe that evidence of a crime would be found in the motel room. We agree.

"The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating ... often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). It is...