U.S. v. Torres

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before BARRETT, DOYLE and LOGAN; WILLIAM E. DOYLE
• Citation: U.S. v. Torres, 663 F.2d 1019 (10th Cir. 1981)
• Decision Date: 05 November 1981
• Docket Number: Nos. 81-1102,s. 81-1102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Mendoza TORRES, Max Candido Griego, Sarah Godoy and Susan Smith Spiegel, Defendants-Appellants. to 81-1105.

Page 1019

663 F.2d 1019

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Mendoza TORRES, Max Candido Griego, Sarah Godoy and Susan Smith Spiegel, Defendants-Appellants.

Nos. 81-1102 to 81-1105.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Sept. 30, 1981.

Decided Nov. 5, 1981.

Wayne G. Chew, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., with him on the brief), for plaintiff-appellee.

Vince D'Angelo, D'Angelo, McCarty & Vigil, Albuquerque, N. M., for defendants-appellants.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The above named defendants-appellants seek reversal of convictions based on charges having to do with conspiring to rob a federally insured national bank with the use of dangerous weapons contrary to 18 U.S.C. § 371 and 18 U.S.C. § 2113(a), (d). Also charged in the indictment against all four defendants was the substantive crime of actual robbery of the bank, together with aiding and abetting that crime under 18 U.S.C. § 2. In addition, Sarah Sotello Godoy and Max Candido Griego were charged with possession of a firearm by a former felon in violation of 18 U.S.C.App. § 1202(a). A jury trial was had and all defendants were found guilty on all counts, except that Griego was found innocent of the possession charge.

The incident occurred on September 26, 1980. The Las Vegas police received a report that a brown pick-up truck may have been involved. This truck was readily found abandoned located in a place close to the bank. A public service employee notified the police that a gold-colored Firebird with Arizona license plates containing several individuals had departed the area where the brown truck had been found. The police obtained a description of the robbers from victims at the bank. This included their approximate height, body type, race, sex and clothing, together with a description of the guns which had been carried. A further connecting link was the mentioned gold Firebird with Arizona license plates. It was seen by the police at a service station in Las Vegas. The four defendants were found at the station in the car and in a van which was parked beside it. The defendants were questioned by the police, and defendant Torres gave the police consent to search the Firebird. A small caliber weapon was found in the door pouch; weapons were found on the persons of both Torres and Griego, and were confiscated. The defendants and the weapons which were found conformed to the description that the police had obtained. All of the defendants were arrested. They were taken to the Las Vegas police station for processing. The F.B.I. was immediately notified of the robbery of the bank and of the apprehension of the defendants. On that day both the local police and the F.B.I. questioned the defendants. This was carried out approximately two hours after the capture. The defendants were given Miranda warnings and they signed waiver forms. They did not request counsel. But the statements made were not inculpatory. These were denials and were an avoidance.

The police sought a search warrant for the impounded Firebird but the district attorney directed the police to first try to obtain the defendants' consent to the search of the car. Defendant Torres, the apparent owner of the Firebird, signed a consent permitting the police to make a "complete" search, and authorized the taking of "letters, papers, narcotic drugs, other drugs, material or other property." This all occurred on the very first day, that is, September 26th, including the original search, which was not a thorough one. In connection with that, the Las Vegas police found a wallet that had been identified by one of the victims of the robbery. Torres was confronted by an F.B.I. agent with this wallet. He told the F.B.I. man that he did not mind the police looking through his car, but he had not intended it to be torn apart. This statement apparently was not relayed to the Las Vegas police.

Subsequently, the police did a further search of the Firebird, and in pulling out an ashtray in the side of the door, they were able to see some money in the well of the ashtray. They then removed the air-vent cover in the side of the door, because the vent was connected to the ashtray well. There they found a bag of money which contained marked bills, later identified as having come from the First National Bank.

On September 30, following consultation with the local district attorney, the United States decided to prosecute the defendants on federal bank robbery charges. No state charges of armed robbery were ever filed by New Mexico. The following day, October 1, the United States filed the charges, and on the 2nd the defendants were arraigned for the first time before a United States Magistrate, in Albuquerque, New Mexico.

The four points or contentions advanced on behalf of the appellants are:

1. That defendants were unlawfully arrested at the Las Vegas service station, because the police lacked probable cause to make the arrests.

2. That the defendants were not brought before a magistrate for six days from the time of the arrest, and therefore, there was unnecessary delay, violative of the Federal Rules of Criminal Procedure 5(a).

3. That the money found in the Firebird was obtained unlawfully, because defendant Torres had retracted his consent to the search of the vehicle.

4. That the prosecution did not adequately prove that Sarah Godoy was a convicted felon whereby she could be convicted of possession of a firearm under 18 U.S.C.App. § 1202(a).

I.

Were the defendants unlawfully arrested at the Las Vegas

service station very soon after commission of the

offense, whereby there was a lack of

probable cause?

Our examination of the facts convinces us that there was adequate evidence to constitute probable cause justifying the arrest. The officers received information concerning the robbery at once. Much of this came in radio communications. They had the descriptions of the robbers, the guns used, information regarding the brown pick-up truck and the gold Firebird with Arizona license plates. Also relayed over the radio was information that the bank had been robbed by a tall, slim male who was wearing a trench coat, a short, stocky male, and a woman (Godoy), all of Spanish descent, together with an Anglo woman (Spiegel). There were descriptions of two guns, one silver and one dark, square-barrelled revolver. The police were notified, also, that a gold Trans-Am Firebird was seen at Ollie's Lounge. After hearing this on the radio, Captain Tapia, of the Las Vegas Police Department, drove toward Ollie's Lounge, and saw a gold-colored Pontiac, with Arizona license plates at a service station. The driver was a tall, Spanish male, wearing a trench coat. He was outside the car, talking to a shorter, Spanish male, whose appearance coincided with the description which the police had been given. He was driving a tan van. Defendant Torres was the driver of the Pontiac; Defendant Griego was the driver of the tan van; the two women passengers of the Pontiac were defendants Godoy and Spiegel. Tapia detained all four defendants for approximately twenty minutes, until other police authorities arrived. Following the stop, the police sought and received permission from Torres to search the gold Pontiac. In the door pouch of the car, the police found a small, twenty-two caliber weapon; also found in the car later was a black leather wallet. The large square-barrelled revolver was discovered on Torres. The defendants were then placed under arrest. It was after the arrest that a silver automatic handgun was found on the person of defendant Griego, and another weapon, a forty-five caliber handgun, was discovered on the person of Torres. After that the defendants were taken to the police station and following warnings and waivers, they were questioned. It is very clear that this was a hot pursuit situation, although the defendants may have thought that they would mislead the police by not racing out of town and being on the scene. However, the circumstances discovered coincided in every detail with the facts reported, so that the conclusion was very apparent.

There was a right in the first instance to conduct a preliminary Terry-type investigation. Having done that, the facts which were learned from this constituted ample evidence showing probable cause, justifying arrest. We must reject the argument regarding invalidity or insufficiency of evidence to justify the arrest.

It is noteworthy that three days after the original arrest, the police learned that the gold Pontiac was a stolen car. Also to be noted is that $87,700 in cash which was identified as money taken in the robbery was found behind a panel in the back of the car. Finally, it should be pointed out that evidence sufficient to establish guilt beyond reasonable doubt is not necessary in order to justify the action which was taken by the officers. The arresting officers were able to rely on information supplied by fellow officers through radio communications. When the actual facts coincided with the original information, probable cause existed. Holt v. United States, 404 F.2d 914, 918 (10th Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969). The officers at this point of the arrest had reasonably trustworthy information adequate to support their belief that the law had been violated. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310- 1311, 93 L.Ed. 1879 (1949); United States v. Matthews, 615 F.2d 1279 (10th Cir. 1980); United States v. James, 496 F.Supp. 284 (W.D.Okla.1977).

Following the initial stop for questioning, the handguns were found on Torres and Griego. This fact, together with the descriptive information obtained shows that probable cause did exist at the moment of arrest as required under the provisions of the Fourth Amendment. See United...