United States v. Baty

• Decision Date: 19 November 1973
• Docket Number: No. 73-2391 Summary Calendar.,73-2391 Summary Calendar.
• Citation: 486 F.2d 240
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie Fred BATY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

486 F.2d 240 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Willie Fred BATY, Defendant-Appellant.

No. 73-2391 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 17, 1973.

Rehearing Denied November 19, 1973.

C. Lawrence Jewett, Atlanta, Ga. (Court appointed), for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Gale McKenzie, Atlanta, Ga., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Willie Fred Baty was tried before a jury and found guilty on two counts of unlawfully possessing material stolen from the mails with knowledge of its felonious character, in violation of 18 U.S.C. § 1708 (1970). The district court imposed concurrent three-year sentences. We affirm.

On the afternoon of September 8, 1972, Sgt. Larry West and his partner, Sgt. Gordon, both of the East Point, Georgia Police Department, were cruising in their patrol car when they received a radio dispatch reporting a residential burglary in progress and a companion look-out bulletin for two black males, one on foot and one in a car. As the officers arrived on the scene, they observed one black man at the wheel of an automobile that was leaving the drive-way of the reported burglary site and another black man running away on foot. The latter, apprehended one block away, was the defendant, Willie Fred Baty. Sgt. West stopped the vehicle and asked the driver, Gary Williams, to step out and identify himself. As this was done, West saw a gun barrel protruding from beneath the armrest in the vehicle's front seat. After retrieving this pistol, Sgt. West then proceeded to conduct a more thorough search, which uncovered another pistol beneath the driver's seat. The search also produced, among other items, a driver's license and the automobile's registration in the name of Willie Fred Baty and two stolen checks, which lay partially exposed in opened envelopes beneath the vehicle's floor mat. Baty was tried on a two-count indictment charging: (1) unlawful possession of a United States Treasury check, which had been stolen from the mail, knowing the same to have been stolen, and (2) unlawful possession of a commercial check, also stolen mail matter, knowing it to have been stolen from the United States Mail (emphasis added).

At the trial, James Therrell, the designated payee on the Treasury check, testified that he had received similar retirement checks through the mail every month for ten years until August 31, 1972, the date printed on the check described in Count I. The other check had been sent by certified mail to Alice G. Glover, who testified that she regularly received similar paychecks from Kelly Girl Services through the mail. Both payees confirmed that they had been expecting but never received these checks and that it was beyond the realm of possibility for the envelopes to have arrived at their respective post office boxes and been mislaid thereafter. Both checks were found in envelopes bearing U.S. post marks and the envelope containing the check involved in Count II clearly disclosed its certified mail status.

Several days after the arrest, Anthony M. Cumberworth, a special investigator for the Postal Service, interviewed the defendant, who was incarcerated on burglary charges, in the detective's office at the East Point Police Department. Cumberworth testified that, after he had identified himself and his mission and advised the defendant in detail of his Miranda rights, Baty voluntarily admitted his custody of the checks and stated Williams, his partner, knew nothing about them. Baty gave the postal investigator this story. He first encountered the checks when they fell out of the purse of a young female who had been in his car. At that time the checks were in unopened and sealed envelopes. The young woman, with whom Baty was only slightly acquainted, disclaimed ownership of the letters and told him to keep them. Because he knew that his passenger was not the addressee on either of the unopened envelopes, Baty surmised that they must have come from the mails. Although he originally intended to return them to the mails he confessed that, overtaken by greed, he had opened the envelopes in order to see if the checks could easily be cashed.

Before this court, Baty claims that the district court erred in (1) denying his motion to suppress the evidence seized from the automobile, (2) determining that his admissions were voluntary, (3) charging the jury about the facts that could properly be inferred from unexplained possession of recently stolen property, and (4) overruling defendant's motion for directed verdict of acquittal.

Not only does Baty argue that the warrantless search of the automobile was unreasonable, but also that the officers' failure to provide him with an inventory of items seized during the search, as required by Ga. Code Ann. § 27-302 (1972), rendered such fruits inadmissible at trial. In view of the burglary report and the officers' personal observation of the automobile being driven from the reportedly burglarized premises by a driver meeting the general description of the burglars, the policemen were faced with the conditions precedent— probable cause and exigent circumstances—that validated and justified their subsequent actions in stopping the fleeing vehicle and investigating the suspicious circumstances. United States v. Allen, 472 F.2d 145 (5th Cir. 1973); United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972). Moreover, when confronted with the pistol barrel in plain view, Sgt. West was clearly warranted in entering the vehicle to retrieve the weapon. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Gulledge, 469 F.2d 713 (5th Cir. 1972); United States v. West, 460 F.2d 374 (5th Cir. 1972). Finally, the confirmed observation of the weapon supplied the officers with additional cause to suspect that the vehicle was linked to the reported crime and to conduct a more thorough search of its interior and trunk. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 41 (1970); United States v. Ragsdale, supra.

Assuming without deciding that a state fashioned exclusionary rule would bind a federal court to forestall the search for truth, there can be no error in admitting the subject evidence since Georgia courts have never held that a failure to furnish the defendant with the inventory required by Section 27-302 would operate to exclude the recovered evidence from the trial. Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123 (1972); Williams v. State, 125 Ga. App. 170, 186 S.E.2d 756 (1971). Such an after-the-search procedural deficit is certainly not a violation of any Fourth Amendment right.

Baty next raises the incongruous contentions that the trial court erroneously found defendant's admissions to be voluntary and admissible as evidence, and that if such admissions were properly received, they rendered the trial court's jury charge improper. At a Jackson v. Denno hearing, Cumberworth testified that he advised Baty in detail as to his Miranda rights and that the defendant willingly entered into a discussion of the checks. Although Baty may have understandably been upset at his predicament, the trial court correctly determined from all the evidence that the admission was voluntary and that the jury should be allowed to hear the statements. United States v. Harvey, 483 F.2d 448 (5th...