United States v. Brumley, 72-1044 to 72-1046.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation466 F.2d 911
Docket NumberNo. 72-1044 to 72-1046.,72-1044 to 72-1046.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Timmy Lee BRUMLEY et al., Defendants-Appellants.
Decision Date01 September 1972

Stephen K. Lester, Asst. U. S. Atty., Wichita, Kan. (Robert J. Roth, U. S. Atty., Wichita, Kan., on the brief) for appellee.

Alvin D. Herrington, Wichita, Kan., for appellants.

Before HILL, SETH, and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Timmy Lee Brumley, Edward Dean Chill, and Charles Edward Drane were convicted of burglary of the Wilmore State Bank (Bank), of Wilmore, Kansas, in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2. Brumley and Drane were sentenced to the custody of the Attorney General in accordance with the Youth Correction Act. Chill received an eight year indeterminate sentence.

The Bank is located in Comanche County, Kansas, a small, sparsely populated county of 3,200, which abuts the Kansas-Oklahoma line. The three major communities within the county include Wilmore, Coldwater, and Protection. Wilmore has a population of 150 and Coldwater and Protection have populations of 1,275 and 900, respectively.

On December 17, 1970 the Bank was burglarized at about 3:15 a. m. Al Eckert, who lived across the street from the Bank, was awakened by the Bank's burglar alarm. Eckert got up, looked out his window and saw a car pulling out of the driveway of a grain elevator near the Bank. The car was headed north out of Wilmore. Mr. Eckert described the car as an older model, dark in color, with a sloping back. Eckert called Lester Fry, a cashier at the Bank. Upon Fry's arrival, Eckert and Fry entered the Bank. They found a broken window and miscellaneous tools scattered on the floor. The vault was closed but the combination knob of the vault had been noticeably damaged. This apparently activated the alarm.

Fry opened the vault and turned off the alarm. A cursory inventory of the vault and the Bank proper indicated that the only missing item was a small plastic container in which the Bank kept a small amount of petty cash. This container usually consisted of change. Fry called Sheriff Hackney who lived nearby in Coldwater, and reported the burglary. He related what Eckert had seen.

Sheriff Hackney immediately radioed several law enforcement officials including Nolan Spreier, City Marshal of Coldwater. He informed them of the bank robbery and specifically requested that they be alert for a dark colored car.

Sheriff Hackney then left Coldwater and drove to Wilmore. Shortly after leaving Coldwater, Hackney observed an older, dark-colored car driving toward Coldwater. He called Spreier and asked him to check it out. Pursuant to Sheriff Hackney's call, Spreier stopped a black 1965 Chevrolet occupied by the appellants. Spreier asked the appellants to exit the car and wait until the deputy sheriff arrived.

Within several minutes Mayor Bransom, a deputy sheriff, and Undersheriff Sherman arrived. Sherman talked briefly with Spreier and then asked the appellants, "What's going on?" The appellants related that they had been on their way to Hutchinson to play pool but had decided to return to Woodward when it got late. Sherman then asked the appellants if he could look in the trunk of the car, and after each indicated he could, Chill opened the trunk. Sherman observed a pair of coveralls, a pair of leather gloves and "a cardbox full of burglary tools" in the trunk.

Undersheriff Sherman then lined the appellants up next to their car, frisked them, and then, with the help of Marshal Spreier and Mayor Bransom, took them to the Courthouse. Upon reaching the Courthouse, Sherman advised the appellants of their rights. He then asked them to empty their pockets. Drane and Brumley each had about $15 in change and loose bills in their pockets. The appellants were then jailed.

Glen Dillinger, an employee at the elevator across the street from the Bank, testified that the elevator had been broken into and that eight packs of Pall Mall cigarettes, two pairs of work gloves, one leather and one cotton, along with $35.39 in cash, had been stolen from the elevator sometime between closing on December 16, 1970 and opening on December 17, 1970. Special Agent James F. Miller of the F.B.I. drove along the getaway route and found five packages of Pall Mall cigarettes, some white cotton work gloves, two Coors beer cans (with Oklahoma stamped on the top of each), and a small plastic container similar to the one taken from the Bank.

On the morning of the 17th, Special Agent James B. Kelly searched the 1965 Chevrolet after obtaining a written consent to search it from the owner, Brumley. Kelly found, among other things, a package of Pall Mall cigarettes, which bore the same Kansas tax stamp number as the cigarettes stolen from Mr. Dillinger, and the same number as the cigarettes found along the getaway route, and three Coors beer cans, each of which had "Oklahoma" stamped on the top.

Additional evidence was also introduced at the trial based upon the scientific testing of evidence by the F.B.I. Microscopic leather fibers on one of the beer cans found along the getaway route were the same as and could have originated from the leather gloves found in the car. Synthetic fibers were found on another beer can that microscopically matched the synthetic fibers taken from the floor of the car. The composition, design, and sewing threads of two white cotton gloves, one found in the car and the other along the getaway route, were the same.

Also, glass particles found in the cuff of Chill's pants matched the physical and optical properties of the glass fragments from the broken window of the Bank. Paint particles found in the coveralls recovered from the trunk of the car could have had a common source with the paint particles on the tools in the Bank.

The appellants contend that: (1) the searches of Brumley's automobile were illegal and in violation of their constitutional rights and that all evidence seized and admitted pursuant to such searches should have been excluded by the trial court; (2) the grand jury indictment under which they were tried should have been dismissed by the trial court because of their uninformed waiver of the right to a preliminary hearing; and (3) they were denied a fair trial by the cumulative prejudice to "substantial rights" resulting from the Government's refusal to produce evidence, from the speculative and conjectural reasoning of expert witnesses, and from expert testimony based upon evidence that was destroyed during the course of the testing.

I.

Taking the allegations of error in the order presented, we must first determine whether the searches of the automobile were lawful. The appellants contend that their case is controlled by Dyke v. Taylor Implement Manufacturing Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and that since the vehicle was subjected to warrantless searches without "probable cause" they are entitled to a new trial with all the "tainted" evidence excluded. We hold that this contention is without merit.

Dyke is not controlling herein because it is distinguishable from our case. In Dyke, the defendants were apprehended, arrested and taken back to the jail. The arresting officers searched the defendants' car while they were waiting inside the jail. In our case, the defendants were not arrested and taken to jail prior to their car being searched. Rather, they were merely detained by Marshal Spreier for a reasonable investigative inquiry and upon consenting to a search of their car, Chill opened the trunk for Undersheriff Sherman to conduct the search.

Marshal Spreier was not acting improperly in stopping the Brumley car, since "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Temporary detention and questioning of persons by police officers in the course of their duties is proper even though there are insufficient grounds for arrest. United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971). See alsoUnited States v. Troutman, 458 F.2d 217 (10th Cir. 1972).

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., 392 U.S. at 23 88 S.Ct. at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams, Warden v. Williams, 407 U.S. 143, p. 145-146, 92 S.Ct. 1921, p. 1923, 32 L. Ed.2d 612 (1972). (Emphasis ours).

Given the description of the car although sketchy, Marshal Spreier acted properly in stopping the car, in a town such as Coldwater, a small Kansas hamlet where often times not a single car will pass through town during an entire evening.

The Government has the burden of proving consent for the warrantless search. United States v. Miles, 449 F.2d 1272 (10th Cir. 1971). The Government met its burden of establishing the voluntariness and validity of the consent. The admission of evidence lies largely within the trial court's discretion and will not be set aside on appeal except for a clear abuse of that discretion. United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970). Also, since jurors are charged with the duty of weighing and assessing the credibility of witnesses, a re-evaluation of...

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