United States v. Holiday

• Decision Date: 24 March 1972
• Docket Number: No. 71-1456,71-1457.,71-1456
• Citation: 457 F.2d 912
• Parties: UNITED STATES of America, Appellee v. Clarence HOLIDAY et al., Appellant in No. 71-1456. Appeal of William HOLIDAY.
• Court: U.S. Court of Appeals — Third Circuit

457 F.2d 912 (1972)

UNITED STATES of America, Appellee v. Clarence HOLIDAY et al., Appellant in No. 71-1456 Appeal of William HOLIDAY.

Nos. 71-1456, 71-1457.

United States Court of Appeals, Third Circuit.

Argued January 27, 1972.

Decided March 24, 1972.

James S. Carroll, New York City, for appellant.

James D. Fornari, U. S. Atty., Newark, N. J., for appellee.

Before McLAUGHLIN, VAN DUSEN and ADAMS, Circuit Judges.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

Appellants, Clarence and William Holiday, appeal from their conviction of robbing a federally insured New Jersey bank of $6,800.59 in violation of 18 U.S. C. § 2113(a). Clarence Holiday was also convicted of violating 18 U.S.C. 2113(d) by using a dangerous weapon and putting the lives of several bank employees and customers in jeopardy. It is from these convictions that appellants appeal.

Appellants allege that there was insufficient probable cause for the F.B. I. agents to enter the house located at 68 Cypress Street, Newark, New Jersey, and therefore any evidence found in said house was inadmissible at the trial. In reviewing these appeals and keeping the totality of all the surrounding circumstances in mind, we find there was ample cause to enter said house and that items in the latter which were within plain view of the agents were correctly admitted into evidence.

On January 8, 1970, at approximately 10:30 in the morning, a Newark branch of the First Jersey National Bank was robbed by three armed men. The Newark Police Department and the F.B.I. promptly investigated the crimes. The facts developed at the scene of the robbery indicated that an additional two men had waited in a Cadillac limousine outside the bank and after the robbery drove the three actual robbers away. The license number of the getaway car was given to the investigators. Shortly thereafter the vehicle was located. One of the investigating agents had previously been informed that a bank robbery was being planned by William Holiday, Paul Simmons and a third individual. He knew that the brother of Paul Simmons lived at 68 Cypress Street which was in the nearby area, the search was therefore directed to that house.

Two F.B.I. agents proceeded to go to the front door of the house but before they could knock on the door, they heard shots and the cry "They are getting away. They're running out the back, they have guns, watch it." Believing there still might be someone in the house agents entered it and saw in plain view a pair of heavy shoes, water on the floor from the soles of the shoes, a ski mask, and other clothing including a sweat shirt similar to that worn during the robbery. Also, on the mantle was a set of two keys from a General Motors car.

The appellants contend that the police should have obtained a search warrant before going into the house. That course of action would have necessitated abandoning the pursuit of the armed men fleeing from the rear of the house, so that the house remained covered while the agents obtained a search warrant. Professional know how called for the two agents at the house to stay there while the remaining men pursued those who fled. It is obvious that at this time the officers had no way of knowing if the house was empty. Clearly the exigencies of the situation made the course of action taken, imperative and lawful. See McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L. Ed. 153 (1948); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

In a similar problem involving a warrantless arrest and search Judge (now Chief Justice) Burger said, "In the light of the facts known to the officers prior to their knocking on the door and the reasonable inferences from Miss Gainey's reply, a prudent and cautious police officer could reasonably have concluded that immediate entry to the apartment was imperative. . . . We find the totality of circumstances in the case reveals that the police entry here was made in `necessitous haste' after a proper manifestation of authority and purpose. Consequently the pursuant arrest and search were valid." See Chappell v. United States, 119 U.S.App.D.C. 356, 342 F.2d 935, 938-939 (1965). Also United States v. Rose, 440 F.2d 832 (6 Cir. 1971). In the light of the unmistakable circumstances surrounding the situation before us we are satisfied that the F.B.I. had probable cause to enter the 68 Cypress Street premises. Once inside the house strong evidence was in plain view and thus lawfully seized. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651 (1968).

Appellants argue that the circumstances surrounding the pre-trial photographic identification were so suggestive as to give rise to a very substantial likelihood of misidentification and thereby a denial of due process of law. The evidence simply does not warrant such a finding. The witnesses were shown a selection of nine photographs, all black and white "mug" shots, one of which was of the appellant, Clarence Holiday. The remaining eight pictures were chosen because they were similar to appellant in race, age and facial characteristics. Each witness who identified Clarence Holiday...