United States v. Adams
Decision Date | 09 March 1970 |
Docket Number | No. 305-69,306-69.,305-69 |
Citation | 422 F.2d 515 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank Leroy ADAMS, a/k/a Bob Owens, and Marion Leslie Hill, a/k/a John Dee Ross, Defendants-Appellants. |
Court | U.S. Court of Appeals — Tenth Circuit |
Virgil E. Carrier, Denver, Colo., for appellants.
Leonard W. D. Campbell, Asst. U.S. Atty., Denver, Colo. (James L. Treece, U.S.Atty., Denver, Colo., on the brief), for appellee.
Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS, District Judge.*
Appellants Adams and Hill were convicted by a jury of violating 18 U.S.C. § 2113(a), bank robbery, as charged in a grand jury indictment returned in the District of Colorado.
The initial arrest and search of appellants, each without a warrant, occurred in Amarillo, Texas, by local police of that city. The arrest and search are attacked in this appeal. Appointed counsel for the accused presented a commendable brief covering the subject.
The bifurcated record, which we examined in detail, presents a unique proceeding.
The first volume of the record contains the evidentiary hearing on a motion to suppress. The motion was presented, evidence adduced, and argument heard out of the presence of the jury and before the trial in chief.
In this hearing the evidence established the appellants were spending substantial amounts of money in a shopping area known as the K-Mart store in Amarillo, Texas. The suspicions of the store employees motivated them to call one Brewer who is a police detective for the city and a part-time security officer for the store.
Appellant Adams purchased a rifle at the sporting goods department and when asked about his residence he gave an address which was printed on a matchbook cover he carried.
Brewer confronted Adams with the requirements of the "Texas Gun Sale Law" and Adams admitted he had no means of identification and therefore returned the gun and received a refund.
Brewer called for an unmarked car and additional city officers to follow the appellants when they left the store. Appellants left the store and drove from the parking area. The unmarked car carrying the detectives followed for several blocks before they stopped appellants' car. Both the appellants and the officers left their respective vehicles and met in the area between the two cars. One of the officers asked appellant Hill for a driver's license and Hill replied he had none. One officer asked appellant Adams to explain the bulge in his pocket. Adams replied it was none of his business whereupon the officer advised he was making an arrest and thereupon proceeded to search Adams. The bulge in the pocket was folded paper money of an undetermined amount. The officers were joined by another patrol car and immediately took both appellants to the city jail. Appellants' vehicle was driven to the jail and searched. The search produced two revolvers, a small safe, and two briefcases with money in them. Other items purchased at the K-Mart store were also found in the vehicle. Appellants were then booked on a charge of unlawful possession of firearms.
Later a federal warrant was issued charging appellants with violation of 18 U.S.C. § 2113(a), bank robbery. Thereafter, a grand jury indictment was obtained and appellants were removed to Colorado for trial.
A motion to suppress was timely filed based upon a claim of illegal arrest without probable cause and a subsequent illegal search without warrant. Thus the issue of tainted evidence was raised to the trial court. The court overruled the motion determining the warrantless arrest was valid and the evidence obtained was not tainted.
The briefs filed and the argument of counsel were directed to the error of this ruling.
This circuit has announced the arrest rule in McIntire v. United States, 217 F.2d 663 (10th Cir.1954), cert. denied, 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745 (1955). The rule permits a warrantless arrest where there is reasonable cause to believe a felony has been committed or where a misdemeanor is committed in the presence of an officer. At the time of the initial arrest the officers did not know that a bank robbery had occurred and their vigilance could only be based upon the suspicious circumstances related.
In Murray v. United States, 351 F.2d 330 (10th Cir.1965), cert. denied, 383 U.S. 949, 86 S.Ct. 1207, 16 L.Ed.2d 221 (1966), this court announced that an officer arresting without a warrant must know or have reasonably trustworthy information to indicate a crime has been committed. See Dailey v. United States, 365 F.2d 640 (10th Cir.1966).
This court has also said "probable cause is something more than mere suspicion." Roa-Rodriquez v. United States, 410 F.2d 1206, 1209 (10th Cir.1969). Cf. Holbrook v. United States, 406 F.2d 44 (10th Cir.1969), and Green v. United States, 386 F.2d 953 (10th Cir.1967).
An arrest is not justified by what a subsequent search discloses. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), Wood v. Crouse, 417 F.2d 394 (No. 125-68, filed Oct. 7, 1969) (10th Cir.1969), Welch v. United States, 411 F.2d 66 (10th Cir.1969), United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969), Simpson v. United States, 346 F. 2d 291 (10th Cir.1965), in light of the foregoing uncontradicted facts, cast serious doubt upon the search which turned up the evidence hereinabove identified.
Even though the foregoing discussion indicates our serious doubt regarding the trial court's denial of the motion to supress, we are bound to consider the second part of the bifurcated record which evidences the trial in chief. The briefs and oral argument were not directed to this portion of the case.
Klink v. Looney, 262 F.2d 119, 121 (10th Cir.1958).
"An illegal arrest does not void a conviction, nor is it grounds for a collateral attack upon a judgment of conviction." Roddy v. United States, 296 F.2d 9, 10 (10th Cir.1961).
At the opening of the trial in chief after the selection of the jury, the following dialogue appears:
An accused can admit all the elements of an offense charged by pleading guilty, therefore it follows that he can admit any part of the elements.
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