United States v. Ganter

• Decision Date: 23 December 1970
• Docket Number: No. 17912.,17912.
• Citation: 436 F.2d 364
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven GANTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

436 F.2d 364 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Steven GANTER, Defendant-Appellant.

No. 17912.

United States Court of Appeals, Seventh Circuit.

December 23, 1970.

Ronald P. Alwin, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Michael P. Siavelis, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel, assisted by Arnold Kanter, Legal Intern.

Before KNOCH, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.

PELL, Circuit Judge.

Steven Ganter was convicted on a one count indictment charging him with violation of Title 18, United States Code, Section 111.¹

The evidence presented at the trial below established the following factual situation. On April 25, 1969, at approximately 2:00 p. m., Special Agent Craig of the Federal Bureau of Investigation was in the area of Kedzie Avenue and Fulton Street, Chicago, Illinois, conducting an official investigation of a selective service subject. As the agent walked north on the sidewalk adjacent to Kedzie, he spoke to a youth he passed. Craig then went into a building on Kedzie. While he was looking at the mail boxes, the outside door burst open and a man ran in and struck Craig in the face. In the ensuing struggle, which lasted for two or three minutes, Agent Craig recognized his assailant to be the youth he had passed on the street. When the agent felt the assailant trying to gain control of his gun, he identified himself as a federal officer.

The young man gained control of the gun, however, and pointed it at the agent while stating, "I ought to kill you." He then took the agent's money and credentials and struck him in the face with the gun before fleeing the scene. Craig pursued the assailant into an alley behind the building in which the attack took place. At this point the man threatened to shoot Craig, then he ran south through a gangway toward Fulton Street, at which point the agent lost sight of him.

Agent Craig, who was bleeding from facial wounds, then encountered the resident of the house adjacent to the gangway. The resident, at the instructions of Craig, called the police. Craig then went into the house to call his office. When he went back to the street the police had arrived.

Furnished with a description of the youth by the FBI agent, including information that the youth might be bleeding, the Chicago police made a search of the alleys and gangways and interviewed people in the area. Approximately one-half hour after the assault, the police obtained information which resulted in the arrest here in question. An "elderly male Negro" who told the police officers that "he didn't want to get involved" said that "he thought the offender could possibly be on the second floor of 3216 West Fulton." The anonymous informant did not state to the police that he had seen the offense being committed, nor that he had seen the youth fleeing the scene.

The police officers proceeded to the rear stairway of the building mentioned by the informant where they noticed what appeared to them to be fresh blood drippings on the stairs leading to the second floor. There were also similar blood drippings on the porch itself and what appeared to be blood was observed on the door of the second floor apartment. The officers knocked on the door, identified themselves as police officers and requested that the door be opened. When they received no response, the police kicked open the door and entered the apartment. As they entered, they sighted the defendant, Steven Ganter, standing in the hallway wearing bloodstained underwear.

Ganter was immediately placed under arrest and apprised of his Miranda rights. Other Chicago police officers at this time appeared at the front door and were let into the apartment. The defendant was asked where the gun was and responded by telling the officers it was under the couch, where it was in fact found. The defendant was placed in a police vehicle in order to be taken to the hospital where Agent Craig was being treated.

When they arrived at the hospital at approximately 3:00 p. m., the police went inside to tell Craig that they had a suspect in the wagon and would like Craig to make an identification. Agent Craig went outside and identified the defendant as the person who had assaulted him. At this time the defendant was alone in the back of a police wagon.

From the hospital, the defendant was transported to the 11th District police station for processing. At about 4:20 p. m. this was completed and Ganter was released to FBI agents, who advised him of his Miranda rights. The defendant was then taken to the FBI office and was processed there. At approximately 5:20 p. m. Ganter began an interview with three FBI agents. Before proceeding, the agents inquired as to whether Ganter could read or write, and when he answered affirmatively he was furnished with a printed "Interrogation Advice of Rights Form." The defendant told the agents that he had read the form and understood his rights. After signing the waiver of rights form, Ganter declined the opportunity offered to confer with an attorney and proceeded to give the agents an oral statement. His statement admitted the alleged assault. The interview ended at about 6:45 p. m., at which time the defendant decided not to sign the statement which had been prepared.

NECESSITY OF PROOF OF SCIENTER

Ganter contends that his motion for judgment of acquittal should have been granted because the government failed to prove the element of scienter as to the identity of the federal officer.

There is a split of authority as to the necessity of this proof. However, we find no direct authority on the point in this circuit. Annot., 10 A.L.R.3d 833 (1966). We believe the better rule applicable in the particular situation before us is that which was recently expressed in United States v. Kartman, 417 F.2d 893 (9th Cir. 1969), where the court stated at page 894:

"Knowledge of the official status of the victim of a forcible assault is not an element of that offense under 18 U.S.C. § 111. McEwen v. United States, 390 F.2d 47 (9th Cir. 1968). * * *

"Defendant argues that the interpretation given section 111 in McEwen violates the holding of Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 96 L.Ed. 288 (1952), that legislative silence does not eliminate criminal intent from a statutory codification of a common-law crime which required mens rea. But McEwen holds only that specific knowledge that the victim is a federal officer is not an essential element of forcible assault under section 111. McEwen does not hold that the statute eliminates mens rea — the evil purpose or mental culpability which was the essential mental component of common-law assault and battery.

"This interpretation of the forcible assault prohibition in section 111 as requiring only mens rea, and not also specific knowledge of the victim\'s official status, comports with the legislative purpose, which was simply to provide a federal forum when the enumerated offenses were committed against federal officers engaged in the performance of federal duties. United States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966); United States v. Lomardozzi, 335 F.2d 414, 416, 10 A.L. R.3d 826 (2nd Cir. 1964); see also Burke v. United States, 400 F.2d 866, 868 (5th Cir. 1968)." (Footnotes omitted).

It must also be noted that while Ganter apparently had no knowledge of the identity of Craig as a federal officer at the time he initiated the attack, he learned shortly thereafter of the agent's federal identity. Notwithstanding the information having been communicated to him, he did thereafter point a gun at Craig.

In the state of Illinois one who points a loaded revolver at another, withing shooting distance, in a threatening manner, is guilty of an assault. People v. Preis, 27 Ill.2d 315, 318-319, 189 N.E. 2d 354 (1963). Ganter clearly committed assault with scienter.

For the foregoing reasons we conclude that Ganter's motion for judgment of acquittal was properly denied.

MOTION TO SUPPRESS PHYSICAL EVIDENCE

Prior to trial, Ganter filed, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, a motion to suppress as evidence at the trial certain physical property, including the gun and various articles of clothing, which were seized at the apartment at the time of the arrest. The police, who had not obtained an arrest warrant, likewise did not have a search warrant when they took the items in question. Defendant maintains that there was no probable cause for the arrest, and therefore a warrantless search pursuant thereto was a violation of his Fourth Amendment rights. In this respect, Ganter contends that the tip of the unidentified informant did not provide probable cause.

An arrest is not constitutionally valid unless probable cause exists to make it. The determination of probable cause does not rest upon a technical framework; instead it depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Thornton v. Buchmann, 392 F.2d 870, 872-873 (7th Cir. 1968).

The officers who made the arrest in the present case were aware that the assailant was armed with the agent's gun and could be considered dangerous. Furthermore, because of the short time span since the assault, they could reasonably believe that he was still in the area and that the time it would take to get a warrant might allow him to escape from the neighborhood. Therefore, under the circumstances of this case, the exigencies of the situation made the arrest without...