U.S. v. Simmons

• Decision Date: 31 October 1977
• Docket Number: No. 77-1271,77-1271
• Citation: 567 F.2d 314
• Parties: 2 Fed. R. Evid. Serv. 774 UNITED STATES of America, Plaintiff-Appellee, v. Frank Alexander SIMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 314

567 F.2d 314

2 Fed. R. Evid. Serv. 774

UNITED STATES of America, Plaintiff-Appellee, v. Frank Alexander SIMMONS, Defendant-Appellant.

No. 77-1271.

United States Court of Appeals Seventh Circuit.

Argued June 16, 1977.

Decided Oct. 31, 1977.

Paul Bradley, Chicago, Ill., for defendant-appellant.

Samuel K. Skinner, U. S. Atty., Terry A. Zitek, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant appeals his conviction following a trial by jury on charges of armed bank robbery in violation of 18 U.S.C. § 2113(a) and § 2113(d). ¹ It appears from the evidence adduced at the hearing on defendant's motion to suppress and the trial that on February 9, 1976, the Allied Savings and Loan Association located in Chicago, Illinois, was robbed of about $16,000 by two men wearing ski masks and carrying handguns. Immediately after the robbery, a citizen observed the two robbers in an automobile a short distance from the bank, called the police, related the license number of the car and gave a physical description of the men. Utilizing the license number, the police determined that the automobile observed near the scene of the robbery was registered to Frank Pastore. The police proceeded to Pastore's apartment, arrested him, recovered approximately $8,000 and seized a .38 caliber revolver. Pastore implicated defendant as his accomplice in the robbery, and based on the information from Pastore the police traced the defendant to the Devon Hotel. Following the questioning of Pastore, about ten policemen and FBI agents proceeded to the Devon Hotel to find and arrest defendant. Upon determining which room was occupied by defendant, several officers knocked on the door while others waited in various positions throughout the hallway. After giving several aliases, defendant finally admitted his true identity and opened the door. Almost immediately defendant was arrested, handcuffed, and removed from the room.

The district court, in ruling on defendant's Motion to Suppress after an evidentiary hearing, made certain findings of fact. The court found that simultaneously with defendant's arrest by the officers, two other police officers, Grant and Trotta, entered the hotel room. That room, which was almost entirely visible from the hallway, was very small, approximately ten feet by twelve feet, and afforded little space for movement. Upon entry into a very short hallway, Officers Grant and Trotta observed a naked woman in the room standing about two to three feet from the bed. Officer Trotta reached for something to cover the woman. Officer Grant at the same time observed a bulge on the bed which he uncovered and found to be a bag containing $1,260 in United States currency. Officer Grant also observed a purse close by the bed and within reach of the woman. He emptied the contents of the purse onto the bed and discovered a gun which subsequently proved to be a replica. Both the currency and the replica gun were seized by the officers. No warrant had been issued for this search.

After being taken into custody but prior to his removal from the hotel, defendant stated in the presence of an FBI agent and several police officers, "I guess this is that robbery that Frank and I were involved in." In response to questioning by the agents and officers, defendant also admitted at that time that he had received $2,300 from the Allied Savings and Loan robbery. Defendant made further incriminating statements to the police officers while traveling by car from the hotel to police headquarters.

Prior to trial defendant, although conceding that there was probable cause for his arrest, moved to suppress the items seized at the hotel as well as the statements which he had made after his arrest. At the suppression hearing, both Officer Grant and Officer Trotta testified that at the time of the search they were concerned with their own safety. Officer Grant stated that he was searching for the gun and the money, and also stated that he was not paying any real attention to the woman in the room. He further testified that his purpose in searching for the weapon was to avoid the possibility of its use against him. The district court found that both officers were searching for evidence and for any weapons that could be used against them. The court concluded that considering all the circumstances of the case and the fact that a third party was in the room, the search of the bed and the purse was incident to defendant's arrest and did not constitute an unreasonable search and seizure under the Fourth Amendment.

With respect to the statements made by defendant after his arrest, the district court also heard testimony from the agents and officers present when the statements were made. As the Government conceded that the warnings given to defendant were inadequate under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the court ordered them suppressed as to the Government's case-in-chief. The court further found, however, that the statements were not made involuntarily and thus ruled that they could be used for purposes of impeachment.

Three issues are to be resolved.

I. Suppression of the Physical Evidence.

Relying primarily upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), defendant argues that the search by Officer Grant was unreasonable under the Fourth Amendment and that the court erred in failing to suppress both the gun and the currency seized from defendant's hotel room. In Chimel, supra, the Court defined the principles under which a warrantless search incident to an arrest is permissible:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. (Supra, at 762-63, 89 S.Ct. at 2040.)

The existence of "potential dangers lurking in all custodial arrests" eliminates the necessity of probable cause to believe that the arrestee is in possession of a weapon or is about to destroy evidence. United States v. Chadwick, 433 U.S. 1, 14, 97 S.Ct. 2476, 53 L.Ed.2d 538. Moreover, warrantless searches have been sustained under the Chimel rationale where the item searched was in close proximity but not strictly in the immediate possession of the arrestee. See e. g., United States v. French, 545 F.2d 1021 (5th Cir. 1977); United States v. Frick, 490 F.2d 666 (5th Cir. 1973), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974). Where, however, law enforcement officers had reduced personal property not associated with the person to their exclusive control, thereby eliminating the potential dangers inherent in allowing its access to defendant, the search was no longer incident to the arrest and, absent other exigent circumstances, a warrant was required. Chadwick, supra, 433 U.S. at 15, 97 S.Ct. 2476; see also United States v. Berry, 560 F.2d 861 (7th Cir. 1977). ²

The thrust of defendant's argument is that the testimony of Officer Grant that he was not paying any real attention to the woman in the room indicates that he did not fear any danger that she might reach for a weapon. This testimony, defendant submits, is contrary to the district court's finding that he was searching for weapons. We do not agree with defendant that Officer Grant's testimony reflects that he did not sense a potentially dangerous situation due to the woman's presence. A rational division of assignment among various police officers does not imply that those officers not directly assigned to controlling the movement of a person may not legitimately fear the possibility of dangerous activity by a person found in the company of a person who shortly before had participated in an armed bank robbery. Women are not unknown as accomplices in serious crimes. Even if we consider only the isolated statement by Officer Grant, we need not infer that the officer did not have a legitimate concern about the presence of the armed robber's associate at the scene of the arrest. See United States v. Tharpe, 536 F.2d 1098, 1100-1101 (5th Cir. 1976) (en banc). Moreover, there are additional statements by Officer Grant in the record to support the court's findings. ³ We conclude that the court's findings regarding the officers' fear and the purpose of the search were not clearly erroneous. United States v. Reynolds, 532 F.2d 1150, 1156 (7th Cir. 1976); United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976).

The disposition of the question regarding the officers' concern for their safety does not completely resolve the Fourth Amendment issue now before us. The obvious fact distinguishing this case from Chimel is that the search here was of the area within the immediate control of a third person who was not placed under arrest, and not of the area at that moment within the immediate control of the defendant who was arrested, but it had been in the immediate control of both up to the accomplishment of the arrest. Few courts have considered questions...