United States v. Holsey, 165-68.

• Decision Date: 27 August 1969
• Docket Number: No. 165-68.,165-68.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Oren HOLSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

414 F.2d 458 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Oren HOLSEY, Defendant-Appellant.

No. 165-68.

United States Court of Appeals Tenth Circuit.

August 27, 1969.

Donald E. Cordova, Denver, Colo., for defendant-appellant.

Guy L. Goodwin, Asst. U. S. Atty. (Benjamin E. Franklin, U. S. Atty., on the brief), for plaintiff-appellee.

Before BREITENSTEIN, HILL and HICKEY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

After a jury trial, the defendant-appellant Holsey was found guilty of bank robbery with a firearm in violation of 18 U.S.C. § 2113(a), (d). He appeals from the judgment imposing sentence.

The National Bank of Wichita, in Wichita, Kansas, was robbed on July 5, 1967, by a man who used a pistol to intimidate a teller. On October 28, 1967, Holsey was stopped by a Kansas highway patrolman for speeding. At the time, he was driving a 1961 Thunderbird, said his name was Jack Weber, and gave a residence address in Hutchinson, Kansas. The patrolman later learned that the Thunderbird belonged to a Lloyd Holsey. This information was given to agents of the F.B.I. who knew that Holsey was wanted on a federal warrant for unlawful flight to avoid a Kansas prosecution for burglary and that Holsey had been identified as the robber of the Wichita bank. On November 1, agents observed the Hutchinson address and the Thunderbird parked in the driveway. About 2:30 P. M., they surrounded the house and with the use of a bull horn commanded Holsey to come out. He did so and was arrested. The house and the Thunderbird were searched immediately and various guns, documents, and other property were seized. The defendant's motion to suppress the evidence so seized was overruled as were his objections to its admission at the trial.

The arrest of the defendant was lawful and is not challenged. The question is whether the search of the house and automobile, and the subsequent seizures, were permissible as incidental to the arrest. The record establishes that the arrest was made outside of the house but does not further define the point where it occurred. The items seized as a result of the house search were found beneath the back porch and in a bedroom.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Court considered an arrest in a house and a search of the entire house. The Court limited the area which might be searched to that "from within which he the person arrested might have obtained either a weapon or something which could be used as evidence against him." On the same day that the Chimel decision was announced, the Court decided Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728, and Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732. In those decisions, the Court made clear that the question of the retroactivity of Chimel would await future action. For reasons hereafter stated, we find that consideration of retroactivity is unnecessary.

In Shipley the officers had information that the defendant was involved in a robbery. They went to his home and were permitted by his wife to enter and search. After finding rings taken in the robbery, they staked out the house and waited for the defendant. They arrested him that evening when he returned and alighted from his car. The house was then searched a second time and a jewelry case stolen in the robbery was found under a couch. The Court held that the second search was unlawful under pre-Chimel standards.

In the case at bar the defendant came out of the house and was arrested. In Shipley the defendant alighted from his car and was arrested. In each case the arrest was outside of the house and the house was immediately searched. We find no distinction between the two searches. The Court held that the Shipley search was bad under pre-Chimel standards. That is enough to dispose of our case. The search of the house was unlawful and the evidence seized should have been suppressed.

The question of whether the search of the automobile was permissible under pre-Chimel standards requires separate consideration. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, the Court distinguished between the search of a building and the search of a conveyance. In each of those cases the officers had probable cause to believe that the car stopped and searched was carrying contraband. In our case the automobile was not moving and the officers had no reason to suspect contraband.

Preston v. United States, 376 U.S. 364, 366-367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, also distinguishes between a search of a vehicle and the search of a house and says that the right to search incident to a lawful arrest "extends to things under the accused's immediate control, * * and, to an extent depending on the circumstances of the case, to the place where he is arrested." In Preston the Court rejected evidence obtained by a search of a car which, after the arrest, had been towed to a garage. In the case before us, the car was searched at the spot where it was found.

Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 says that the right to search covers the "place" where the arrest was made. Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856, permits a search of "the immediate vicinity of the arrest." Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, upheld the search of a 4-room apartment after an arrest in the living room thereof. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, approved the search of a one-room business office after an arrest therein. Harris and Rabinowitz, were expressly overruled by Chimel.

United States v. Francolino, 2nd Cir., 367 F.2d 1013, 1016-1018, cert. denied 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110, was decided before Chimel and discusses the standards then applicable. In that case the arrest was made in the house and subsequently a car in the driveway was...