United States v. Blalock

• Decision Date: 13 May 1966
• Docket Number: Cr. No. 22244.
• Citation: 253 F. Supp. 860
• Parties: UNITED STATES of America v. Clarence Edward BLALOCK.
• Court: U.S. District Court — Eastern District of Pennsylvania

253 F. Supp. 860

UNITED STATES of America v. Clarence Edward BLALOCK.

Cr. No. 22244.

United States District Court E. D. Pennsylvania.

May 13, 1966.

Drew J. T. O'Keefe, U. S. Atty., Joseph R. Ritchie, Jr., Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Samuel Dashiell, Philadelphia, Pa., for defendant.

JOSEPH S. LORD, III, District Judge.

Defendant was convicted by a jury on all three counts of an indictment charging robbery of a federally insured bank and related crimes. At the trial, marked "bait money" taken from the bank in question and found by F.B.I. agents in defendant's hotel room was admitted in evidence over objection. Defendant now moves for a new trial, contending that this evidence should have been suppressed as the fruit of an unreasonable search and seizure.

The money was seized in a warrantless search which the Government contends was conducted with the consent of the defendant. Cf. United States v. Roche, 36 F.R.D. 413 (D.Conn., 1965). The testimony of F.B.I. Agent Strickland, who was in charge of the search, was that he and two other agents approached defendant and a companion, Miss Laverne Maxwell, in the hotel lobby, and that defendant agreed voluntarily to an interview in, and subsequently the search of, his room. N.T. 148-152. Before the evidence seized during the search was admitted, defense counsel objected on the ground that the search and seizure were illegal. No motion to suppress had been filed before trial, and I overruled the objection as untimely, adding parenthetically that the testimony showed that defendant had agreed to the search. N.T. 152-154.

Throughout the trial, defense counsel persisted in his objection to the evidence, and questioned the Government witnesses and the defendant vigorously on the circumstances surrounding the search and especially the possible existence of an arrest before the search was conducted. During the cross-examination of Agent Strickland, I explicitly permitted this line of inquiry, N.T. 172-173, and defense counsel explored the sequence of events preceding the search in his questioning of another of the three agents and of Miss Maxwell, both Government witnesses. The versions of the events differed significantly. Miss Maxwell related on cross-examination that the defendant had been searched in the hotel lobby and again in his room, and had been handcuffed before the entire party entered the elevator to go to his room. N.T. 226, 228. Serious legal and factual questions were presented about whether the search had been preceded by an arrest; whether there had been consent to the search; if so, whether the consent was sufficiently knowing and voluntary to be effective, see Commonwealth of Pa. ex rel. Whiting v. Cavell, 358 F.2d 132 (C.A.3, March 6, 1966), or whether the circumstances were so inherently coercive as to vitiate any consent given, see Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Martinez v. United States, 333 F.2d 405, 408 (C.A.9, 1964) (dissenting opinion), vacated and remanded, 380 U.S. 260, 85 S.Ct. 953, 13 L.Ed.2d 959 (1965); compare Note, 113 U.Pa.L.Rev. 260 (1964).

At the conclusion of the Government's case, defense counsel renewed his motion to suppress the evidence. I denied the motion, finding from the testimony that there had been consent to the search, N. T. 233, and that defendant had not sustained his "burden of proof * * * on the question of suppression," N.T. 232.¹ When defendant later testified in his own behalf, he gave his version of what transpired in the hotel. According to him, the agents "grabbed" him, told him not to move, displayed a weapon threateningly, searched and handcuffed him, ordered him to admit them to his room, and searched it without asking or receiving his permission. N.T. 259-261. When defendant had finished his direct examination and part of his cross-examination, I stated that since defendant had voluntarily testified about these matters notwithstanding his privilege not to do so, I was "in a position to make a factual ruling" once again, based on the testimony of all the participants except one of the three agents, who was not a witness at the trial. N.T. 305. I then reaffirmed my decision that the motion to suppress was tardy and, additionally—resolving the conflicts in the testimony—that there had been effective consent to the search. N.T. 310.

Taking the opportunity for reflection that a motion for a new trial affords the trial judge,² I now conclude that a proper procedure was not employed in hearing the motion to suppress. Inasmuch as that is so, and as the procedure adopted prejudiced the defendant, a new suppression hearing will be required. It is therefore unnecessary to reach the merits of the exclusion question now.

Rule 41(e) of the Federal Rules of Criminal Procedure provides in part that a motion to suppress "shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, at the trial or hearing." It seems plain that the course I adopted was to exercise my discretion to entertain the motion at the trial. Any question of timeliness thereupon became moot or irrelevant, for denying the motion for tardiness and deciding it on its merits are incompatible alternatives under Rule 41(e).

Once I undertook to entertain the motion, the suppression hearing should have been held out of the presence of the jury. Rule 41(e) "is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt." Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960). The interruption of "the trial for such auxiliary inquiries impedes the momentum of the main proceeding and breaks the continuity of the jury's attention." Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). A separate hearing also enables the defendant to testify on the collateral issue of suppression without waiving his privilege against self-incrimination on the merits of the charge or creating the possibility, if he were to testify on the suppression issue before the jury but stand mute on the merits of the charge, that the jury would draw the prohibited adverse inference from his conduct.

The consequences of not holding such a hearing here were to deprive defendant of a full opportunity to carry the burden that I found he had not sustained³ and inadvertently to infringe his privilege against self-incrimination. Had a suppression hearing been held, defendant could have called witnesses to substantiate, if he could, his allegations of illegal search and seizure. He would not have been bound by the Government's choice of witnesses, as he was here, in order to get a determination on the exclusion question before his own case began.

One of the witnesses he might have called was himself. Had he been able to testify on the suppression issue at the time the evidence he challenged was introduced, he would not have had to decide whether to take the stand in his own behalf without the benefit of a final ruling on the suppression issue. While I had at least twice before defendant opened his case denied the ...