United States v. DeLeo, No. 7356.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: ALDRICH, , McENTEE and COFFIN, Circuit
• Citation: 422 F.2d 487
• Parties: UNITED STATES of America, Appellee, v. Ralph F. DeLEO, Defendant, Appellant.
• Docket Number: No. 7356.
• Decision Date: 20 April 1970

422 F.2d 487 (1970)

UNITED STATES of America, Appellee,
v.
Ralph F. DeLEO, Defendant, Appellant.

No. 7356.

United States Court of Appeals First Circuit.

January 21, 1970.

Certiorari Denied April 20, 1970.

422 F.2d 488

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422 F.2d 489

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Paul T. Smith, Boston, Mass., with whom Manuel Katz, Boston, Mass., was on brief, for appellant

Edward J. Lee, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on the brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied April 20, 1970. See 90 S.Ct. 1355.

COFFIN, Circuit Judge.

This case involves a federal bank robbery, with indictments under 18 U.S.C. § 2113(a) and (d) leading to conviction after jury trial. A spirited and able defense has raised a number of issues, none of which we feel is adequate to command reversal. The facts are best marshalled in connection with each issue.

I

The first issue, raised by a motion to dismiss, is whether the indictment was fatally defective for failure to allege that the forceful and violent taking of a bank's money, by intimidation and by putting the lives of various persons in jeopardy, had been done knowingly and with felonious intent. Appellant argues that the crime is of the common law larceny genus and thus an essential element of allegation and proof is felonious intent, even though such requirement is not expressed in the statute.¹

The offense described in the first paragraph of section 2113(a) — "analogous" to common law robbery, Prince v. United States, 352 U.S. 322, 324, 77 S.Ct. 403, 1 L.Ed.2d 370 n. 2 (1957), or "in the nature of robbery", Rawls v. United States, 162 F.2d 798, 799 (10th Cir. 1947) — is part of the statutory pattern to protect institutions whose deposits are federally insured. Six specific crimes are set out in section 2113. Felonious intent is specifically incorporated in the definition of two of them: entering a federally insured institution with intent to commit a felony (a — second paragraph), and taking property with intent to steal or purloin (b). However, it is not made part of the crimes of taking by force and violence or by intimidation (a — first paragraph); knowingly receiving stolen property (c); assaulting or putting in jeopardy the life of a person by a dangerous weapon (d); or killing a person, or forcing a person to accompany him, while in the course of committing one of the other offenses or avoiding apprehension or confinement for any of them (e).

This differentiation shows careful draftsmanship. Entering and taking can be innocent acts, and therefore require felonious intent to constitute crimes²;

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receiving stolen property can be innocent, unless done knowingly. However, the other offenses describe acts which, when performed, are so unambiguously dangerous to others that the requisite mental element is necessarily implicit in the description.³ Contra: United States v. Margeson, Cr. No. 64-26 (D.Me.1964). It therefore is immaterial for sections 2113(a) and (d) whether the subjective intent of a bank robber is to steal that to which he has no claim or to recover his own deposit; the crime is his resort to force and violence, or intimidation, in the presence of another person to accomplish his purposes. United States v. Lester, 287 F.Supp. 870 (E.D.Pa.1967), aff'd. 399 F.2d 161 (3d Cir. 1968); Pitman v. United States, 380 F.2d 368 (9th Cir. 1967)

II

A second issue is directed to the admission in evidence of the incriminating contents of appellant's safe deposit box. Appellant was arrested under the authority of a warrant at 9:30 p. m. on September 29, 1966, the day after the bank robbery. The arrest took place in a drug store, on which occasion an F.B.I. agent searched appellant for a weapon. No question is raised concerning the arrest or this search. Forty minutes later, at local F.B.I. headquarters, agents again searched appellant and found a bank safe deposit envelope and signature card, bearing the date of the day, September 29, and a key. These led to information from a vault attendant in the specified bank that appellant had, on the morning following the robbery, rented a safe deposit box in the bank and had "put something heavy" into it. A search warrant based on this information was issued and under its authority agents opened the box, finding a gun and sunglasses later introduced at the trial over objection and identified as those wielded and worn by appellant during the robbery.

Appellant argues that the search at F.B.I. headquarters was too remote in time and place to be incident to his arrest; that there was no probable cause to seize the envelope, card, and key; and that there was no probable cause for the issuance of the search warrant.

Concerning the propriety of the search, appellant properly recognizes the ominous relevance of such cases as United States v. Frankenberry, 387 F.2d 337 (2d Cir. 1967); Malone v. Crouse, 380

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F.2d 741 (10th Cir. 1967), cert. denied, 390 U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174 (1968); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967); and Grillo v. United States, 336 F.2d 211 (1st Cir. 1964), cert. denied, 379 U.S. 971, 85 S. Ct. 669, 13 L.Ed.2d 563 (1965). We would add United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966); Rodgers v. United States, 362 F.2d 358 (8th Cir. 1966), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966); Charles v. United States, 278 F.2d 386, 389 n. 2 (9th Cir. 1960), cert. denied, 364 U.S. 831, 81 S.Ct. 46, 5 L.Ed.2d 59 (1960); and Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955)

Appellant asserts, however, that the teaching of these cases has been overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which he further asserts is the first occasion the Court has had to consider whether a search at a police station following an earlier arrest is valid. He points to Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), where the Court merely proceeded "on the premise that, if the arrest itself was lawful, permissible limits were not exceeded" by such a search. We recognize that the range of Fourth Amendment cases and the pertinent language of the Court, from Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), to Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), have generally dealt with searches of cars, rooms, offices, and homes, but not of a person shortly after being arrested and conducted to a police station. Nevertheless, the Court was, in Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), required to deal with a search of an alien after being arrested and taken to Immigration and Naturalization Service headquarters. The Court, speaking through Mr. Justice Frankfurter, said, at p. 239, 80 S.Ct. at p. 697:

"The property taken by petitioner to I.N.S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention had additional justifications, similar to those which justify a search of the person of one who is arrested."

Although four Justices dissented vigorously from the major holding validating a search of petitioner's hotel room, not one commented on the holding to which the above quoted language refers.

We disagree that Chimel v. California, supra, has overruled these cases. We are disinclined to read Chimel as teaching new doctrine on the subject of search of an accused shortly after his arrest at the first place of detention; the rationale of Chimel does not require its extension to cases like that at bar, for the evil sought to be rooted out is not present.

We read Chimel as being acutely concerned about the increasing legitimation of wide-ranging warrantless searches of lodgings and buildings based on the fortuity of arrest on the premises, which had been ushered in by United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).⁴ That search of the person was not the evil addressed is apparent from the early references in

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Chimel, distinguishing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and from the Court's own language 395 U.S. at 766, 89 S.Ct. at 2042: "The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other."

The difference between the situation in Chimel and that in the case before us is this: the arrest of a suspect in a particular place — be it his apartment, office, or house — has no such nexus with that place as, without more (i. e., a valid search warrant), would justify searching the premises; but the fact that a suspect, arrested in a public place, has been subjected only to a hasty search for obvious weapons has a reasonable nexus with the necessity of conducting a more deliberate search for weapons or evidence just as soon as he is in a place where such a search can be performed with thoroughness and without public embarrassment to him.⁵ See 395 U.S. at 762-763, 89 S.Ct. 2034. While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.⁶ Were this not to be so, every person arrested for a serious crime would be subjected to thorough and possibly...