United States v. Cox

• Decision Date: 29 June 1970
• Docket Number: No. 17484.,17484.
• Citation: 428 F.2d 683
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Layton COX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

428 F.2d 683 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Charles Layton COX, Defendant-Appellant.

No. 17484.

United States Court of Appeals, Seventh Circuit.

June 16, 1970.

Rehearings Denied June 29, 1970 and July 1, 1970.

Michael J. Zimmer, Milwaukee, Wis., Charles Layton Cox, for defendant-appellant.

David J. Cannon, U. S. Atty., Richard E. Reilly, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, CUMMINGS and KERNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Appellant Charles Layton Cox was indicted for the November 17, 1967, robbery of the Silver Lake State Bank in Silver Lake, Wisconsin, and for jeopardizing the lives of the employees of the bank by the use of a dangerous weapon. After a jury trial, he was found guilty of violating Sections 2113(a) and (d) of the Criminal Code (18 U.S.C. §§ 2113(a) and (d)) and sentenced to imprisonment for 24 years.¹

Appellant does not challenge the sufficiency of the evidence which discloses that on the morning of November 17, 1967, two men robbed the bank of approximately $13,000. They were both armed and wearing "halloween-type" masks of human faces. One of them, apparently Cox, placed the money he took from the tellers in a "Sentry" shopping bag while the other, Phillip Royale, accompanied two bank officers to the vault. Before the vault could be opened, the robbers fled the bank parking area in a maroon Buick with Illinois license plates.

Kenosha County Deputy Sheriff Gerald Van Patten heard of the robbery in a bulletin broadcast on the sheriff's radio. He saw the getaway car approach on Highway 50 leading from Silver Lake and blocked its path with his police car. The Buick swerved past him, and a pistol shot from the passenger side of the Buick injured him slightly by grazing the back of his head. Van Patten then chased the Buick at high speeds until it hit a telephone pole. As he approached the Buick, he observed two unmasked men alongside. The man who had been on the passenger side of the car fled east, while his accomplice ran north. The man running east stopped and turned at least three-quarter face toward Van Patten for a number of seconds at a distance of 45 to 60 feet. Van Patten testified this was Cox. Van Patten said the runaway was bareheaded, wearing a shiny red or maroon jacket, dark pants, light socks, and carrying a dark jacket in his right hand. He had a fairly large nose and thin mouth. Van Patten did not notice that Cox had a deformed or missing right ear.

Van Patten abandoned Cox and proceeded in pursuit of the accomplice, Phillip Royale, whom he killed with one shot at a distance of over 85 feet. Although astigmatic, Van Patten does not need his glasses to see well and shoots almost equally well without his glasses. One of the guns taken from Royale was later identified as having been used in the bank robbery.

A few minutes after the exchange of gunfire between Van Patten and Royale, Paul Breski, a farmer in the vicinity, observed Cox in his apple orchard. Cox, who appeared excited, told Breski that he had been stealing gravel from a mound nearby and that there had been an accident with somebody hurt or killed. Cox said he wanted to call an ambulance. He said his car was at a spot 600 yards from Breski's farm. However, Cox offered Breski's hired man $5 to take him from the farm to the nearest town.

Later in the afternoon on November 17, Cox persuaded two reporters to drive him to his Ford Mustang, which was actually four and one-half miles from the Breski farm. He told the reporters that he had come into the area with a "buddy" to get some gravel, and that his buddy was deputized to search for the bank robber. Cox explained that he himself was not deputized because he was afraid of guns.

When the Buick and immediately surrounding area were searched, another gun used in the robbery was found, along with the "Sentry" shopping bag filled with bank loot and the two masks. A hair sample was removed from the cracked windshield of the Buick and sent to the Federal Bureau of Investigation laboratory. An expert witness testified that he compared that sample with a sample of Cox's hair and found that they had the same characteristics.

At a conference between law enforcement officers on the night of November 17th, Cox became one of the possible suspects. On the following morning, Van Patten viewed four photographs of Cox and instantly identified him as the passenger who ran east from the Buick on the previous morning. Cox was arrested later that day and charged with the robbery of the Silver Lake State Bank.

1. Validity of the Pre-trial Identification

Defendant first objects to the denial of his pre-trial motion to suppress Officer Van Patten's identification of Cox as the individual who fled from the Buick. Defendant argues that he was denied due process under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, because the trial identification by Van Patten allegedly followed a "photographic identification procedure * * * so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" (390 U.S. at p. 384, 88 S.Ct. at p. 971). We agree with the district court that the hazards of a faulty initial identification in this case could be obviated by cross-examination as suggested in Simmons.

The validity of a photographic identification is to be decided upon the particular facts of the individual case. Simmons v. United States, supra, at p. 384, 88 S.Ct. 967. As the Court there recognized, complete insulation of identification procedures from all risk of error or incorrect suggestion is impossible. To be sure, dangers inherent in the use of photographic representations are increased when pictures of only a single individual resembling the suspect are viewed. Under certain circumstances, such a "highly suggestive photographic viewing" may be so improper as to call for suppression of any subsequent identification because of the risks of injustice. E. g., Young v. United States, 132 U.S.App.D.C. 257, 407 F.2d 720, 721 (1969), certiorari denied, 394 U.S. 1007, 89 S.Ct. 1608, 22 L.Ed.2d 786; Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1182 (1969). A flawed procedure, however, does not require suppression in every instance. In Simmons itself, the Court upheld the use of the photographic identification although the defendant was present in several of the pictures shown witnesses. Here too, additional facts warranted the submission of any questions of the accuracy of Van Patten's identification to the jury.

There is no indication that the FBI agents employed an unnecessary or intentionally suggestive procedure. As in Simmons, the photographic identification followed on the heels of a felony in which the suspects had attempted flight with the aid of violence. Immediate action was necessary to prevent escape of the remaining accomplice and "it was essential for the FBI agents swiftly to determine whether they were on the right track * * *." 390 U.S. at p. 385, 88 S.Ct. at 971. Risks of misidentification were lessened in this case by the number of photographs, taken at different times and angles, which were shown Van Patten.

In addition, the circumstances of the observation, as well as Officer Van Patten's police training, militate against substantial dangers of implanting erroneous identifications from the photographic viewing. Officer Van Patten testified that his view of the fleeing accomplice took place under conditions of good visibility at a reasonably short distance and for a period of several seconds. There is also additional circumstantial evidence which corroborates the identification of Cox made by the witness. Cox was clearly placed in the surrounding vicinity, and his own remarks to others on the day of the robbery connected him with the incident. Moreover, hair samples taken from the Buick bore the same characteristics as Cox's hair.

In United States v. Kilgore, 418 F.2d 225 (9th Cir. 1969), the defendant also objected to the in-court identification made by an Immigration Inspector who had viewed two photographs of the defendant five months before trial. Rejecting the challenge, the Court observed that

"the officer whose identifying testimony was challenged was a qualified observer with much experience. There is no indication that he was subjected to suggestive influence or that his identification of Kilgore\'s photographs was corrupted in any manner. In open court, he identified Kilgore as having been the driver of the automobile at the time in question, and this identification finds corroboration * * *. The appellant\'s counsel was afforded all reasonable latitude in his cross-examination of the identifying officer." 418 F.2d at p. 226.

We are in accord with those conclusions and find them equally applicable to the case before us. We therefore hold that no denial of due process resulted from the pre-trial identification procedure and from the admission of Officer Van Patten's in-court identification of defendant Cox.

2. The Seizure of Defendant's Hair

Defendant next contends that the Government violated his Fourth Amendment right to be free from unreasonable searches and seizures when the Federal Bureau of Investigation obtained a sample of defendant's hair and had it analyzed. Defendant argues that hair samples, no less than the blood samples taken by police in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed.2d 908, "plainly constitute searches of `persons,' and depend antecedently upon seizures of `persons,' within the meaning of that Amendment" (384 U.S. at p. 767, 86 S.Ct. at p. 1834). Moreover, Cox claims, the Court's opinion in Schmerber itself indicates that only the threatened bodily destruction of the evidence sought, which created an emergency, justified drawing the blood sample without prior recourse to an impartial magistrate for a search warrant: "Search warrants...