United States v. Clark

• Decision Date: 03 September 1968
• Docket Number: Crim. A. No. 22960.
• Citation: 289 F. Supp. 610
• Parties: UNITED STATES of America v. Cassino CLARK.
• Court: U.S. District Court — Eastern District of Pennsylvania

289 F. Supp. 610

UNITED STATES of America v. Cassino CLARK.

Crim. A. No. 22960.

United States District Court E. D. Pennsylvania.

September 3, 1968.

Drew J. T. O'Keefe, John R. Galloway, Philadelphia, Pa., U. S. Attorney's Office, for plaintiff.

William P. Stewart, Philadelphia, Pa., for defendant.

OPINION

MASTERSON, District Judge.

The defendant, Cassino Clark, has been charged in an indictment filed August 1, 1967, with one count of robbery of a post office using a dangerous weapon in violation of Title 18 U.S.C. § 2114. He now moves both to suppress material evidence, taken from his person and from his residence, and to suppress at trial the identification testimony of five government witnesses. A full hearing on these two motions was conducted between January 2 and January 5, 1968, and subsequently counsel briefed and argued the relevant legal issues. At the hearing the following relevant facts were established.

At approximately 3:25 P.M. on June 29, 1967, a lone Negro male entered the United States Post Office at 5848 Market Street in Philadelphia, Pennsylvania. He walked over to the service counter and, while brandishing a sawed-off shot gun, he vaulted over the counter into the private work area of the Post Office. At this time he ordered the Post Office employees to lie on the ground and not to look at him. He also ordered one of them, Mr. Harry White, to fill an overnight bag with money. After getting approximately $1200.00 he dashed out of the Post Office.

A short time after the robbery two members of the Philadelphia Police Department, Detective Ralph Geary and Detective George Busch, arrived at the Post Office and interviewed the employees who had witnessed the robbery. N.T. pp. 19-20. A member of the Philadelphia Mobile Crime Detection Unit, Mr. Harry Gratman, accompanied them, and, after sealing off an area of the Post Office including the service-counter, he "lifted" several palm prints from the counter. N.T. p. 25.

Earlier the same day a Special Investigator for the United States Treasury Department, Mr. J. H. Pearson, had received information from an unidentified informant, whom he considered reliable, that a robbery was to be committed in West Philadelphia. N.T. pp. 223-224.¹ After 5:00 P.M. this informer notified Pearson that the defendant had robbed the Post Office, N.T. p. 225, and Pearson immediately relayed this information to the investigating police, telling them also that he considered his source to be reliable. N.T. pp. 174-175. Acting upon this information, another investigating officer, Sergeant Fencl from the Major Crimes Division, some time between 5:30 and 6:30 P.M. asked the Mobile Crime Laboratory to compare the palm prints found on the Post Office counter with those of Cassino Clark. N.T. p. 83.

At approximately 6:45 P.M. an officer from the Laboratory informed Detective Busch that a comparison of the palm prints indicated that the defendant was the person whose prints had been lifted from the Post Office counter. Shortly thereafter Busch obtained a warrant for the arrest of the defendant from a Philadelphia magistrate. N.T. p. 28. Busch's affidavit in support of the warrant, which was introduced into evidence at the hearing, contained only the simple statement that the defendant had committed the Post Office robbery.²

That evening at 9:00 P.M. Captain Gregore Sambor of the Philadelphia Police, apprised of Clark's implication by both the palm print comparison and the report from the informer, directed a prowl car officer, Sergeant Clark Rich, to be on the lookout for a pink and white Rambler in which the informer had said Clark would be riding. N.T. pp. 128, 186. Sergeant Rich sighted the car making an improper turn at an intersection, but the car eluded his chase. This officer then sent out a "wanted message", based upon the traffic violations he had observed, and at 9:50 P.M. the car was apprehended. The arresting officers, Patrolmen Howard Bradway, Carl Richards, and Robert McBride, who had not been told why the car was to be stopped, were told to take the two occupants of the car, the defendant and the driver, to the West Detective Division at 5500 Pine Street in Philadelphia. Detective Busch was at the police station when they arrived and he searched the defendant, removing a key and $287.00 in cash from him. N.T. pp. 18-19.

Some time prior to the defendant's arrest, Stephen Combs, an Inspector for the Post Office Department, pursuant to the directions of Captain Sambor requested five Post Office employees, Edmond Lederer, Harry White, Reuben Brachman, Hobart Maddox, and James J. Vaccaro, to come to the West Detective Division for the purpose of viewing photographs of suspects. N.T. pp. 127, 303. At the direction of Captain Sambor, six photographs, to be as "* * * similar as possible * * *", had been taken from the police files. N.T. pp. 271, 284. Because the defendant was then a strong suspect, based upon the palm print identification and the informer's information, his photograph was included among the group of six. The pictures were of six Negro males, all of about the same general height, weight, build, complexion and age. N.T. pp. 107, 127, 134.³ The police arranged the photographs two abreast in a line. N.T. p. 298.

Each witness individually examined the photographs, and the police neither mentioned the defendant's name nor suggested which of the pictures should be selected. N.T. pp. 106-110, 136, 295-296, 322-323, 354, 366, and 383. Two of the five employees, Hobart Maddox and Harry White, positively identified the defendant's photograph as representing the individual who had robbed the Post Office. N.T. pp. 105, 306-307, 323. Three employees, James Vaccaro, Reuben Brachman, and Edmond Lederer, identified the defendant's photograph but told the police that their identification was not positive. N.T. pp. 106, 160. During this time and later, after all the witnesses had examined the photographs, there was no conversation among them about their identification of the defendant. N. T. pp. 306-307.

Shortly after 10:00 P.M. Combs asked four of the employees who had remained at the station to look into a detention room. N.T. pp. 112, 287. The defendant was sitting in this room with five other Negro men, i. e. the driver of the Rambler, two Negro policemen dressed as civilians, and two other men who were brothers and suspects in connection with an unrelated crime. N.T. pp. 147-149. The men all were dressed similarly: all wore dark civilian slacks, none wore a tie, all were handcuffed, and all wore short-sleeve shirts—four of the men wore white shirts while the defendant and his companion wore Banlon shirts. N.T. pp. 119, 130. The men were not particularly similar, however, in regards to their physical characteristics.⁴

Inspector Combs led each of the four witnesses individually to a window in the door of the room for purposes of making the observation. Combs neither mentioned the defendant's name to these witnesses nor did he suggest that the defendant was a strong suspect. N.T. pp. 115, 301-302. Maddox and White again positively identified the defendant as the robber. N.T. pp. 114, 131, 154, 157. Lederer and Brachman also testified, however, that they had identified the defendant at that time. N.T. pp. 368, 354.

After all of the employees had looked into the detention room they remained at the station house for several minutes, during which time they saw the police take the defendant from the room. N.T. pp. 310, 311. At about this time, between 11:00 and 11:30 P.M., and after both the display of the photographs and the observation of the defendant in the detention room, Detective Geary interrogated the defendant and told him that he was being arrested. N.T. p. 245.⁵

Detective Busch then obtained a search warrant for the defendant's premises from the same Magistrate who had issued the arrest warrant earlier that day. N.T. pp. 32-35. Issuance of this warrant was based upon the witnesses' identification of the defendant. N.T. pp. 39, 43-44.⁶ Busch served the warrant at approximately 11:25 P.M. and at that time he seized from the defendant's premises the following articles: a sawed-off shotgun, two shotgun shells, a pair of sunglasses, adhesive tape, handcuffs with a key inserted in them, brown manilla paper, and miscellaneous papers including a probation card made out in the defendant's name. N.T. pp. 19, 46-47.

Finally, several weeks after the date of the robbery, the police asked Vaccaro, who had left the police station on the night of June 29th before any of the witnesses had looked into the detention room, to come to the West Detective Division to identify some money purportedly associated with the Post Office robbery. N.T. p. 385. At that time the police asked Vaccaro to walk by a cell in the station-house. N.T. pp. 385, 390-391. The evidence indicates that at that time Vaccaro observed the defendant confined in one of these cells and identified him as the robber. N.T. pp. 390-391.

I

The defendant relates each of his motions to suppress to several allegedly improper police procedures which took place during the early stages of the government's proceedings against him which are described above. His contentions, and the Court's disposition of them, may be understood best by chronologically outlining the alleged improprieties.

The defendant's initial contention is that his arrest was illegal. He argues that the arrest warrant obtained by Detective Busch was defective because Busch presented the magistrate with no factual information upon which the latter independently could have determined whether or not there was probable cause for the arrest. See, Aguilar, supra, 378 U.S. at p. 114, 84 S.Ct. 1509. The defendant maintains that, because his arrest was made subsequent to the time when the allegedly defective warrant was issued, it can not be considered as a valid arrest without a warrant based upon probable cause. Instead, he argues that if the...