United States v. Goldenstein

• Decision Date: 17 May 1972
• Docket Number: 71-1342.,No. 71-1294,71-1294
• Citation: 456 F.2d 1006
• Parties: UNITED STATES of America, Appellee, v. Ronald Seibelt GOLDENSTEIN, Appellant. UNITED STATES of America, Appellee, v. John Larry RAY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.2d 1006 (1972)

UNITED STATES of America, Appellee, v. Ronald Seibelt GOLDENSTEIN, Appellant.

UNITED STATES of America, Appellee, v. John Larry RAY, Appellant.

Nos. 71-1294, 71-1342.

United States Court of Appeals, Eighth Circuit.

March 23, 1972.

Rehearing and Rehearing Denied May 17, 1972.

COPYRIGHT MATERIAL OMITTED

Gary T. Sacks, St. Louis, Mo., for appellant, Goldenstein.

Robert Hampe, St. Louis, Mo., for appellant, Ray.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and STEPHENSON, Circuit Judges, and REGISTER, Senior District Judge.

Rehearing and Rehearing En Banc Denied May 17, 1972.

VAN OOSTERHOUT, Circuit Judge.

Defendants Goldenstein and Ray, with Jerry Miller and James Benny, were indicted on a charge of aggravated bank robbery of the Bank of St. Peters, Missouri, in violation of 18 U.S.C.A. § 2113 (a), (d). Goldenstein and Ray entered pleas of not guilty and were jointly tried to a jury. Each was found guilty as charged. Ray was sentenced to eighteen years imprisonment. Goldenstein was sentenced to thirteen years. Each defendant has appealed in forma pauperis from his conviction. Defendants are represented by separate court-appointed counsel.

Defendants conceded that the Bank of St. Peters was robbed of some $53,000 at approximately 1:25 p. m. on October 26, 1970, and that the deposits of the bank were insured by the Federal Deposit Insurance Corporation. It is firmly established that the robbery was accomplished by three armed men who wore masks, hats and gloves. The robbery took about three minutes. None of the bank employees were able to positively identify any of the robbers. Other evidence to the extent necessary will be set forth in the course of the opinion.

Defendants raise some common issues. Each defendant also raises separate issues. We will deal with the appeals separately, treating the common issues in the Goldenstein appeal.

GOLDENSTEIN APPEAL.

Goldenstein as a basis for reversal urges the court erred in the following respects:

I. Overuling the motion to suppress evidence seized in violation of Fourth Amendment rights.

II. Denial of motion for acquittal.

III. Admitting testimony of Goldenstein's attorney with respect to large sums of money taken from Goldenstein's hotel room subsequent to his arrest.

IV. Denial of motion for separate trial.

V. Prejudicial argument.

Each of such contentions will be considered separately.

I.

The Portland, Oregon, police in a search of Goldenstein's hotel room at the Cornelius Hotel on November 28, 1970, found and seized $12,900 in currency which included fifty $20 bills identified by officers of the Bank of St. Peters as bait money stolen from the bank. There is substantial evidence that the particular money was in the bank immediately prior to the robbery and that it was no longer in the bank after the robbery. Goldenstein filed a motion to suppress the use of all of the seized money as evidence on the ground that it had been obtained as a result of an unlawful search and seizure in violation of his Fourth Amendment rights.

An evidentiary hearing was held. The motion to suppress was denied. The motion to suppress was renewed during the course of the trial. An additional evidentiary hearing was held out of the presence of the jury. The motion to suppress was again denied. The money seized was introduced and received in evidence.

Goldenstein at the time of the search of room 728 at the Cornelius Hotel was a registered guest of the hotel entitled to possession of room 728. The search of the room was made by Officer Ueland of the Portland police. It is conceded that he had no warrant authorizing the search.

Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 656, involved the search of defendant's hotel room without a warrant. The Court holds:

"The search of the petitioner\'s room by the police officers was conducted without a warrant of any kind, and it therefore `can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. . . .\'" 376 U.S. 483, 486, 84 S.Ct. 889, 891.

See Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685.

Recognized exceptions to the search warrant rule are: (1) Consent to the search. (2) Search incident to a lawful arrest. (3) The emergency and hot pursuit doctrine.

The consent exception does not apply here. Neither defendant nor any one authorized by him so to do consented to the search. The Government does not claim otherwise. A hotel clerk cannot validly consent to the search of a guest's room. Stoner v. California, supra.

The search was not incident to a lawful arrest. No probable cause for arrest is established as of the time of the search. Moreover, defendant was not found or arrested in his room. Thus the search could not be incident to an arrest. In any event, the scope of the search was beyond that permitted as an incident to a lawful arrest as established by Chimel.

The real issue is whether the emergency or hot pursuit doctrine exception is established. This court recently considered the emergency doctrine in Root v. Gauper, 8 Cir., 438 F.2d 361. We cited the relevant cases and then stated:

"For purposes of the instant case, the emergency or exigency doctrine may be stated as follows: police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. In applying this doctrine, two principles must be kept in mind. (1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof is on the state to show that the warrantless entry fell within the exception. McDonald v. United States, 335 U.S. 451 at 456, 69 S.Ct. 191, 93 L.Ed. 153; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). (2) An objective standard as to the reasonableness of the officer\'s belief must be applied.

`* * * In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * * And in making that assessment it is imperative that the facts be judged against an objective standard:

would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?\' Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)." 438 F.2d 361, 364-365.

We find substantial evidentiary support for the trial court's determination that the officer was justified in entering the defendant's room under the emergency doctrine for the purpose of rendering any aid that might be necessary and possibly to interrogate the defendant. The police had been called to the hotel by reason of a severe fight. They arrived a few minutes later. Upon arrival, Officer Ueland found a victim of a shooting lying on the floor in the hotel with a gunshot wound which caused his death shortly thereafter. Ueland's testimony credited by the trial court, is to the effect that the desk clerk advised him that Goldenstein had gone upstairs just after the fight, carrying a gun and appearing to be wounded. He was told that the defendant was registered in room 728 and that he registered at the same time as the shooting victim in the lobby. The officer went to room 728, knocked at the door and received no answer. At the officer's request, the hotel clerk opened the door. A thorough search of the room was made for Goldenstein, including looking in the bathroom, the closet and under the bed. A bloody shirt was observed on the bed. The officer was satisfied that the defendant was not in his room. Up to this point we believe that the intrusion was reasonable and falls within the emergency exception.

Thereafter, the officer conducted a thorough search of the room. He discovered in defendant's closed suitcase on the dresser, under some clothing therein, the currency above described which is subject to the motion to suppress. The money was not in plain sight and thus its taking was not authorized under the plain sight rule.

The right to search emergency doctrine would under the circumstances of this case be no greater than the right to search incident to a lawful arrest. The Supreme Court in Chimel holds that a warrantless search is limited to the "arrestee's person and the area `within his immediate control.'" The Court goes on to say:

"There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The `adherence to judicial processes\' mandated by the Fourth Amendment requires no less." 395 U.S. 752, 763, 89 S.Ct. 2034, 2040.

See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

Since the officer had satisfied himself that Goldenstein was not in his room, the officer's safety did not require a search for weapons or evidence which defendant might immediately destroy. The officer concedes that the room could have been sealed off or posted to prevent defendant from making entrance until a warrant could be obtained. See United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 96 L.Ed. 59. While Ueland was the only officer involved in the search, other officers were available in the hotel lobby.

The search occurred early on Saturday morning. The Government's contention that it was unlikely that an officer authorized to issue a warrant would be available prior to Monday in a city like Portland in an...