U.S. v. Sellers, 74-1683

• Decision Date: 20 May 1975
• Docket Number: No. 74-1683,74-1683
• Citation: 520 F.2d 1281
• Parties: UNITED STATES of America, Appellee, v. Willie Foster SELLERS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1281

520 F.2d 1281

UNITED STATES of America, Appellee, v. Willie Foster SELLERS, Appellant.

No. 74-1683.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 6, 1975.

Decided April 10, 1975.

As Amended May 20, 1975.

Robert B. Thompson, Gainesville, Ga. (Court-appointed counsel), for appellant.

Jimmie C. Proctor, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee.

Before CLARK, Supreme Court Justice ^*, HAYNSWORTH, Chief Judge, and WINTER, Circuit Judge.

Mr. Justice CLARK:

The appellant, Willie Foster Sellers, stands convicted by a jury on four counts of armed robbery of the Fallston branch of the Union Trust Company of Shelby, N. C., on August 9, 1973. He raises three claims of error: (1) the FBI's search of his apartment violated his Fourth Amendment rights; (2) the failure of his attorney to subpoena several witnesses violated his Sixth Amendment rights; and (3) his conviction for both theft and possession of stolen money was improper. We discuss these issues seriatim.

I.

At the trial, a variety of evidence linked appellant to the bank robbery. Testimony revealed that on the night of August 8, 1973, a blue Ford automobile was stolen from the parking lot in front of the Cloud Nine Lounge in Charlotte, N. C. A policeman on routine patrol duty happened to notice the car being driven off and later identified Sellers as one of the passengers. The next day, two armed men wearing ski masks robbed the Union Trust in Fallston of nearly $63,000 including a quantity of marked bills known as "bait money." Though none could identify the robbers, one witness to the theft saw the men make a getaway in the blue Ford, later found abandoned about a mile from the bank. Earlier in the day, according to other testimony, two witnesses had seen Sellers riding in the car in the vicinity of Fallston.

The most incriminating evidence, however, came from a warrant search of appellant's apartment in Atlanta, Georgia, following his arrest on September 25, 1973. There, tucked in a shoebox containing $33,150 in cash, agents found $500 of the "bait money" from the Fallston bank. In a pre-trial motion to suppress this crucial piece of evidence, Sellers attacked the affidavit supporting the warrant as lacking probable cause, but the district court rejected the claim. On appeal, he renews his attack, but we also must reject it.

In the circumstances of this case, the warrant must stand or fall on the basis of the written affidavit. ¹ We therefore set out the entire document:

I, Michael J. Santimauro, being duly sworn, depose and on oath say the following:

On or about January 17, 1973, a confidential source advised Special Agent Raymond W. Stratton of the Chicago Office, Federal Bureau of Investigation, that Willie Foster Sellers was a known member and/or associate of the "McGuire Gang", headquartered in Chicago, which have been committing bank robbery offenses in the Southeastern United States, including Alabama Georgia, Tennessee, and the Carolinas, in which handguns, sawed-off shotguns and machine guns were used. The modus operandi utilized was that the participants always used facial disguises such as ski masks, costume face masks, hoods, and are completely clothed from head to toe. They steal cars for the getaway and for the "switch" car, usually the day before the robbery from a public parking lot such as a shopping center and/or hospital. After the robbery they hide in the woods and are subsequently picked up by another member in a "cool" car.

On September 23, 1973, a confidential source advised Special Agent Lee R. Wagner that Willie Foster Sellers had committed a recent number of bank robbery offenses in the South, particularly Georgia and South Carolina, stating he was utilizing ski masks, facial and costume masks and utilizing the same modus operandi as set out above. This source advised that Sellers and his accomplices were responsible for a recent bank robbery in Northern Georgia in which the bank camera was sprayed with paint.

On June 22, 1973, the Citizens Bank, Ball Ground, Georgia, was robbed by three white males armed with carbine and pistols, all wearing ski masks and similar type clothing with getaway made in a stolen automobile and abandoned in a wooded area within a five-mile radius of the bank. The modus operandi and the description of the unknown subjects fit the general description of Sellers and the two accomplices named by the source.

On September 25, 1973, at 7:30 A. M., I participated in the arrest of Willie Foster Sellers based on a federal warrant charging him with unlawful flight to avoid confinement burglary and escape issued May 21, 1971, Southern District of Alabama. Sellers was arrested outside his apartment. Information received on September 23, 1973, was such that he was traveling with other armed accomplices. The Apartment G-10 was entered in an effort to locate these individuals. In the bedroom I observed in plain view one costume type mask and brown gloves, similar to those used in the Citizens Bank robbery. In the same room, also in plain view, in an open drawer of a night stand was a loaded revolver. Various trunks, grips and packages were also observed in the apartment which are believed to contain further bank robbery paraphernalia. Upon arrest Sellers was in the process of placing some of the above trunks and luggage in the above described vehicle. The keys to this vehicle were in the possession of both Sellers and his wife, Barbara.

Review of FBI identification records shows that on three separate occasions Sellers had been convicted and sentenced on charges of burglary.

Appellant first seeks to undercut the affidavit by stripping away the corroborating detail contained in the next-to-the-last paragraph regarding the mask, gun, and gloves observed in appellant's bedroom. Sellers' theory is that the warrantless entry of the apartment immediately after his arrest was itself a Fourth Amendment violation and could not be used to support probable cause. The Government defends the search under the so-called "protective sweep" theory. The relevant facts are these.

In late September of 1973, the FBI received a report from an unidentified informant that Sellers, who was a suspect in several bank robberies and a fugitive from confinement, could be found in Apartment G-10 of the Buford Towne Apartments in a suburb of Atlanta. This was corroborated through the apartment manager who identified a photograph of appellant but advised that he was not then at the apartment. On the evening of September 24th, the manager contacted the FBI and notified them that Sellers had returned. Setting up surveillance around the apartment building, the agents waited for Sellers to appear.

Early on the morning of September 25th, a light came on and, at about 7:30 A. M., Sellers left the building and walked to his car, which he began to load with luggage. As he closed the car trunk, he was arrested on an unlawful flight warrant. Simultaneously, several of the agents rushed up the stairs to Sellers' second floor apartment, which overlooked the parking lot directly above where appellant's car was parked. According to their testimony, the agents feared that armed accomplices, who had reportedly been travelling with Sellers, might observe the arrest and fire on the arresting officers. Since their informant had already been proven correct on the exact location of Sellers' apartment and also on the make and color of appellant's car, the agents' fears could hardly be called unreasonable.

Entering the apartment, the agents hurriedly checked the rooms for occupants, but found only Mrs. Sellers and her two children. However, one agent noticed a pistol in the open drawer of the bedroom nightstand and a costume mask and a pair of gloves in the open bedroom closet. Although this incriminating evidence was seen in plain view, nothing was seized during the cursory search of the apartment. Instead, the agents sought a search warrant based on these observations and on reports of appellant's involvement in bank robberies by two unidentified informants.

Appellant argues that this "protective sweep" of the apartment by the agents was entirely unwarranted. Under the doctrine of Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), of course, probable cause for the belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant, and it follows that a search for a person or persons should be no less restrictive. Emphasizing that the exceptions to the rule that a search must rest upon a search warrant are jealously guarded, appellant points to the following circumstances: (a) the agents here had seen no activity all during the night save the turning on of a light around 6 A. M.; (b) Sellers was unarmed at the time he was arrested and gave no resistance; (c) Sellers' wife and children were standing at the open door of his upstairs apartment and the officers had a commanding view of the portion of the apartment which overlooked the parking lot where the arrest took place; (d) the officers made no effort to secure a search warrant; and (e) while it is conjectural whether one could have been obtained, the fact is that the only additional information made available by the search was that no accomplices were present. Given these facts, Sellers contends that there were no "exigent circumstances" to justify the intrusion, citing United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); United States v. Cooks, 493 F.2d 668 (7th Cir. 1974); and United States v. Gamble, 473 F.2d 1274 (7th Cir. 1973).

We do not find appellant's cases helpful. In none of them did the officers have reasonable grounds, such as those here, to believe that the arrestee was travelling with armed associates. On the other hand there are several cases which are more instructive. For example, in United States v. Looney, 481 F.2d 31, 33 (5th Cir. 1973), the court...