United States v. Ellis

• Decision Date: 12 May 1972
• Docket Number: No. 515,Docket 71-1992.,515
• Citation: 461 F.2d 962
• Parties: UNITED STATES of America, Appellee, v. Robert W. ELLIS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

461 F.2d 962 (1972)

UNITED STATES of America, Appellee, v. Robert W. ELLIS, Appellant.

No. 515, Docket 71-1992.

United States Court of Appeals, Second Circuit.

Argued February 16, 1972.

Decided May 12, 1972.

R. David Broiles, Fort Worth, Tex., for appellant.

Richard J. Davis, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., and Peter F. Rient, Asst. U. S. Atty., New York City, on brief), for appellee.

Before FEINBERG and TIMBERS, Circuit Judges, and THOMSEN, District Judge.^*

TIMBERS, Circuit Judge:

Robert W. Ellis appeals from a judgment of conviction after a four day jury trial in the Southern District of New York, Constance Baker Motley, District Judge, finding him guilty of three counts of violating the federal bank robbery statute, 18 U.S.C. §§ 2113(a), (b) and (d) (1970), including armed bank robbery. Ellis was sentenced to concurrent five year terms of imprisonment. On appeal, he contends that the district court erred in admitting evidence seized in violation of his Fourth Amendment rights, in admitting hearsay evidence, and in not permitting him to exhibit his voice to the jury. Finding no error, we affirm.

I.

Viewing the evidence most favorably to the government, as we must at this juncture, United States v. D'Avanzo, 443 F.2d 1224, 1225 (2 Cir.), cert. denied, 404 U.S. 850 (1971), the proof at trial adequately supported Ellis' conviction.

At approximately 11:30 A.M. on March 1, 1968, three armed and masked men entered the County Trust Company in White Plains, New York, and robbed it of $7,000. While the three robbers were inside the bank, a fourth member of the gang parked a stolen 1965 Chevrolet next to the bank's drive-in window in such a way as to block the view into the bank. The two culprits who entered the bank through the rear door were arrested shortly after the robbery while fleeing from the scene of the crime. They subsequently were identified as John Havanick and Joseph D'Amico.¹ The person who parked the stolen automobile in such a way as to impede observation of the robbery was never identified.² The government produced evidence and the jury found that Ellis was the first robber into the bank, the one who entered through the front door.

The government's case against Ellis was based entirely upon circumstantial evidence, as the robbers' ski masks precluded any of the bank's employees or customers from identifying Ellis as one of the robbers.

Approximately ten minutes after the robbery, Patrolman Byrne arrested D'Amico a short distance from the bank. Byrne found keys to a Ford Thunderbird owned by Janet Cestaro, Ellis' girl friend, in D'Amico's pocket. Just minutes before arresting D'Amico, Byrne had seen someone who resembled Ellis walk past him.

At approximately noon on the day of the robbery, the stolen Chevrolet was found in a parking lot near the bank. Among the items found in the car was a suede jacket. In one pocket of the jacket was an address book inside of which was D'Amico's driver's license. The address book contained the name "Duke", which was Ellis' nickname. An address book with a similar listing also was found on Havanick at the time of his arrest.

Shortly after 2:00 P.M. on the day of the robbery, the police found Cestaro's Thunderbird, the keys to which had been in D'Amico's pocket, in the same parking lot where the Chevrolet had been located. A watch belonging to Ellis was found in the Thunderbird.

At trial Janet Cestaro testified that at the time of the robbery Ellis was virtually living with her in her apartment in West Haven, Connecticut, and that two of his friends were Havanick and D'Amico.

Late in the evening of February 29, 1968, the night before the robbery, Ellis, D'Amico and a third man, identified only as Mack, met at Cestaro's apartment. There, at Ellis' request, Cestaro agreed to lend her car to D'Amico and gave him the keys to it.

At approximately 7 A.M. on the day of the robbery, D'Amico called Cestaro's apartment and spoke to Ellis. At about 8 A.M., Ellis, who was then unemployed, left the apartment with Mack. Ellis wore a light tan trenchcoat, similar to the coat worn by the first robber to enter the bank and found near the bank moments after the robbery. Ellis took with him a revolver of the same color as that of the .32 caliber revolver abandoned by the fleeing robbers near the scene of the crime.

Before leaving the apartment, Ellis reminded Cestaro to tell anyone who asked about her car that she had lent it to D'Amico. When FBI agents came to see her after discovering her car, she told them that D'Amico was her boyfriend and that she had given him the car. While the agents were at her apartment, she received a phone call from Ellis who told her to say that her car had been stolen while she was shopping. When Cestaro told him she had company, Ellis replied "don't say who this is, don't give them my name."

On March 2, the day after the robbery, Cestaro gave the FBI Ellis' belongings which were in her apartment, including a half-filled box of .32 caliber bullets identical to the ones found in the .32 caliber revolver abandoned near the bank. The government also presented evidence to show that Barbara Colligan, another of Ellis' girl friends, later went to the New Haven YMCA and picked up Ellis' belongings, including some bullets identical to those found in Cestaro's apartment and in the abandoned revolver.

II.

Ellis' first contention is that the court erred in denying his pre-trial motion to suppress the admission of his watch seized from Janet Cestaro's automobile. While conceding that the police had probable cause to search the car, Ellis argues that no exigent circumstances justified a warrantless search. We disagree and hold that appellant's Fourth Amendment rights were not violated.

The facts surrounding the search and seizure of Cestaro's automobile are as follows. Shortly after the bank robbery, Detective Tricarico discovered the stolen Chevrolet with its motor running in a parking lot near the bank. When he returned to the police station and learned that a set of Ford keys had been found in D'Amico's possession at the time of his arrest, the detective returned to the parking lot. At about 2:00 P.M., he began trying to fit the keys in the doors of the Ford cars parked there. After approximately six unsuccessful attempts, he found that one of the keys opened the door of a white Thunderbird. Detective Tricarico looked into the glove compartment where he found a car registration in the name of Janet Cestaro. While inside the car, he saw a watch, bearing Ellis' initials, lying on top of the console between the two front seats. Tricarico then examined the trunk of the car. At approximately 5:00 P.M., after the car had been towed from the scene and taken into police custody, an FBI agent checking the car for fingerprints found and seized the watch.

The legality of the warrantless search and seizure of Cestaro's car turns on the validity of the initial search and seizure of the car at 2:00 P.M. If that initial warrantless intrusion was proper, the deferred search of the car three hours later by the FBI also was lawful. Chambers v. Maroney, 399 U.S. 42, 52 (1970); United States v. Castaldi, 453 F.2d 506, 510-11 (7 Cir. 1971); United States ex rel. Spero v. McKendrick, 409 F.2d 181, 184 (2 Cir. 1969).

As for the legality of the initial search, the general rule is that all warrantless searches, even when based on probable cause, are "per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Here we believe the facts surrounding the search of Cestaro's Thunderbird bring this search within the "automobile exception" to the warrant requirement.

In Carroll v. United States, 267 U.S. 132, 153 (1925), the Supreme Court recognized that there is

"a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

The Supreme Court has repeatedly reaffirmed Carroll and upheld warrantless searches of automobiles when probable cause exists.³ It is of course true that Carroll and its progeny do not authorize in every conceivable situation the search of an automobile even with probable cause without the extra protection afforded by a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62 (1971); Chambers v. Maroney, supra, 399 U.S. at 50. Rather, the underlying rationale of the "automobile exception" is that exigent circumstances justify the warrantless search of an automobile, when there is probable cause, where "the opportunity to search is fleeting. . . ." Chambers v. Maroney, supra, 399 U.S. at 51.

In the instant case, the opportunity to search Cestaro's automobile was fleeting. It is true that, unlike the cases in which the Supreme Court has upheld warrantless searches of automobiles, Cestaro's Thunderbird was not stopped while in motion on a public highway. See Coolidge v. New Hampshire, supra, 403 U.S. at 458-60. Nevertheless, at the time Detective Tricarico searched the automobile two of the robbers were still at large. If Tricarico had waited for a warrant, it is not inconceivable that the unapprehended culprits could have driven away in the automobile, using a second key, thus preventing the police from recovering potentially valuable evidence.⁴ Moreover, an additional factor indicating that the opportunity to search was fleeting is the possibility that the automobile could have been taken or ransacked by vandals or persons acting for the defendants while the police were securing a warrant. While the police could have avoided these problems by placing the...