United States v. Berryhill, 72-1094.
| Decision Date | 30 August 1972 |
| Docket Number | No. 72-1094.,72-1094. |
| Citation | 466 F.2d 621 |
| Parties | UNITED STATES of America, Appellee, v. Raymond BERRYHILL, Appellant, and Carolyn Denise Holley, a/k/a Linda Adams. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roy W. Meadows, Des Moines, Iowa, for appellant.
John B. Grier, Asst. U. S. Atty., Des Moines, Iowa, for appellee.
Before LAY and BRIGHT, Circuit Judges, and DEVITT, District Judge.*
Certiorari Denied December 4, 1972. See 93 S.Ct. 547.
A jury found Raymond Berryhill guilty on two counts of breaking open mailboxes, violations of 18 U.S.C. § 1705, and on three counts of possessing stolen mail, violations of 18 U.S.C. § 1708. Berryhill appeals, contending that the district court erred: 1) in denying a motion to suppress evidence seized incident to Berryhill's allegedly illegal arrest; 2) in admitting testimony showing that Berryhill's codefendant had committed a crime not charged in the indictment; and 3) in failing to strike expert testimony indicating that paint particles found on a prybar in Berryhill's possession matched the paint from two mailboxes introduced into evidence showing damage from forcible entry. We reject these contentions and affirm.
At approximately 1:10 P.M. on October 21, 1971, Carolyn Denise Holley, a young white female,1 appeared at the drive-in window of the Plaza State Bank, 2524 Post Street, Des Moines, Iowa. Holley presented the teller a check purportedly drawn by the Midland Casualty Insurance Company in the amount of $1,479.50. She asked the teller to deposit the proceeds, less $975 in cash, to the account of John M. Foley, and she supplied the teller with the correct number for that account. The teller processed the check and returned $975 to Holley. Shortly after Holley left the bank, the teller noted a discrepancy between the amount stamped on the check by a check protector and the amount in figures typed on the check. The teller asked another bank employee to verify the correct amount with the drawer-insurance company. When this employee was unable to find a listing in the Des Moines telephone directory for either the company or its agent, the teller called the Foley residence. Mrs. Foley told the teller she had not made a deposit that day and that she had not received, and did not expect to receive, a check from the Midland Casualty Insurance Company. Mrs. Foley also said that one of her own checks had recently disappeared from her mailbox.
The teller then telephoned the police, relating information supplied by Mrs. Foley, and noting that Holley was a young woman with long, black hair, and was wearing a plaid or checked outfit. The teller further stated that Holley was driving a late model, gold-colored Cadillac bearing Oklahoma license plates, and that the first four digits on the plates were XX20.
Less than fifteen minutes after the check-cashing incident, Des Moines police broadcast a radio bulletin relating the information supplied by the teller, and directing officers on patrol to stop and hold the driver. Kenneth Moon, a traffic control officer, spotted a car fitting the broadcast description at approximately 1:25 P.M. in the Des Moines loop area. He noted that the vehicle carried two persons, a woman driver similarly fitting the broadcast description, and a black, male passenger. These later were identified, respectively, as Holley and Berryhill.
At the time, Officer Moon was driving a three-wheel motorcycle incapable of rapid pursuit. Its siren furthermore was not in working order. He, nevertheless, followed the Cadillac, signaling the driver to halt by waving his arm and sounding his horn. Although the driver was not speeding, Officer Moon could not overtake the Cadillac. After following the vehicle in a westerly direction for about four blocks, he observed the driver signal for a left turn at 17th Avenue and Grand, and then, suddenly, continue for another block, finally turning left toward what is known as Fleur Drive Bridge. Officer Moon concluded that the occupants of the vehicle had seen his signal, and, ignoring it, had refused to stop. He radioed a patrol car for assistance. As a consequence, Officer Blaylock, operating a marked Des Moines Police patrol car, joined the chase and caught up with Officer Moon and the Cadillac on Fleur Drive Bridge. Officer Moon radioed Officer Blaylock that the Cadillac was not going to stop. Red lights flashing and siren wailing, Officer Blaylock pulled alongside the Cadillac and motioned to the occupants to pull over. The driver did not acknowledge the signal and continued down the street. Finally, Officer Blaylock cut in front of the Cadillac and forced it to stop.
Both Holley and Berryhill were placed under arrest. The officers handcuffed Berryhill as he emerged from the Cadillac and took him to the patrol car where he was given his Miranda warning. One of the officers questioned Holley. She stated that the proceeds of the check she had cashed could be found in the right front pocket of Berryhill's shirt. The officers then searched Berryhill and found $975, precisely the amount received by Holley from the teller at the Plaza State Bank. Thereafter, Berryhill was taken to the police station where he underwent further questioning and a further search. This search revealed an additional $13,000 on Berryhill's person, and a letter which had been stolen from a mailbox in Des Moines.
We turn first to Berryhill's contention that the trial court erred in denying his motion to suppress the $975 seized by the police at the scene and the items discovered in his possession at the police station. Appellant contends that he was placed under arrest before Holley told the police where the money could be found. Appellant argues that, prior to acquiring this information, the police lacked probable cause to arrest him. Therefore, the $975 and the other items seized constituted the fruits of an illegal arrest.
The government responds with two alternative arguments. First, it argues that appellant was not arrested until after Holley informed the police about the location of the money, and that this information provided probable cause for the arrest and a search of Berryhill's person incident to the arrest. Second, the government argues that even if Berryhill was arrested at the moment he emerged from the Cadillac, there was probable cause to support such action. The searches, therefore, did not taint the evidence seized therein, since they occurred while Berryhill was in lawful custody of the police.
We reject the government's contention that police had not placed Berryhill under arrest until after Holley's disclosure of the location of the money in question. The record shows clearly...
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...have been "equated with the federal constitutional standard of probable cause necessary to a warrantless arrest." U.S. v. Berryhill, 466 F.2d 621 (8th Cir., 1972); See also Kraft v. City of Bettendorf, 359 N.W.2d 466 (1984); Children v. Burton, 331 N.W.2d 673 (1983). An evaluation of the el......
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