United States v. Impson, 73-1500.

Decision Date12 July 1973
Docket NumberNo. 73-1500.,73-1500.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Bobby IMPSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Melvyn Carson Bruder, Bennie R. Juarez, Dallas, Tex., for defendant-appellant.

Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.

PER CURIAM:

This is an appeal from a conviction for possession of counterfeit currency in violation of 18 U.S.C.A. § 472. No issue other than the validity of the search and seizure of the incriminating evidence either warrants or requires any discussion. On the merits these other contentions are all rejected. Whether the conviction stands affirmed or has to be vacated for a retrial depends upon the hearing which we require incident to the search and seizure.

Sometime on the 16th day of July, 1971, Secret Service Agent Gary Wistrand reported to the police authorities in Wichita Falls, Texas that James Bobby Impson and Robert Donald Annett would be in the vicinity of Wichita Falls, possibly en route to Sheppard Air Force Base, in a gold-colored 1965 Thunderbird automobile and would be carrying counterfeit money wrapped in a Kentucky Fried Chicken container. At about 11:20 P.M. Officer Jack Cox of the Wichita Falls police, who had been briefed on this information prior to going on duty that day, spotted the car and ordered it to pull over and once halted, asked the occupants to step out. The only basis for stopping the vehicle was the report received. The officer asked for identification and each showed identification indicating that they were the persons named in the Secret Service Agent's telephonic alert. Cox then looked into the car and saw in plain view on the rear seat the Colonel Sanders Kentucky Fried Chicken container. In the forward section of the car he noticed "some loose change and cash (bills) laying in the console."1 Presumably expecting to find the booty, not a thigh, the officer opened up the package and there, of course, was the bogus money.

The difficulty in the case arose from the procedural handling of the suppression hearing prior to the first trial of defendant Impson and the stipulated use made at that time of transcripts from an earlier hearing for co-defendant Annett. The chronological sequence reveals how the district judge was inadvertently misled.2 Given the confused state of the record, it is understandable that the trial court thought the stipulation in effect adopted for Impson a wavier of the probable cause issue by Annett's counsel.

We do not question in the least the correctness of the principle that the searching-arresting officer can act on the basis of information of which he has no personal knowledge which has been relayed to him by police transmission facilities. But if that is the sole cause for the detention and resulting search — as it apparently was here — then the government has the burden of showing that the information on which the action was based itself had a reasonable foundation. Whitely v. Warden of Wyoming Penitentiary, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306.

But here the government — perhaps also a victim of the inadvertent confusion — made no effort whatsoever to show the nature or source of the information that Secret Service Agent Wistrand relied upon or which led him to issue this pickup alert. Although the Court has wide latitude in determining whether under F.R.Crim.P. 41(e) a belated motion to suppress can be entertained where it might likely interfere with the course of the trial, we do not believe the Judge rejected it on this basis. Rather, we think that probably out of inadvertent confusion on the part of the prosecutor and the Judge there was a feeling that, as an afterthought and a last ditch effort, counsel for Impson was trying to drag in probable cause when up to that time it was a search warrant issue only.

Nevertheless, whatever the origin of the error, the record demonstrates that the issue was squarely posed and there was no effort by the government to fill this critical void.

At the same time, however, this omission does not go to the validity of the conviction. Whether there is probable cause for the search is not a matter with which the jury is concerned or which could in any way influence its decision. The evidence either is, or is not, admissible and that is a determination in the first instance to be made by the trial Judge. Consequently this is an appropriate place for the application of a Jackson v. Denno,3 type of post-trial hearing4 for the Court to determine whether there was probable cause, Turk v. United States, 8 Cir., 1970, 429 F.2d 1327, 1332, for the...

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    ...for warrantless police activity, see, e.g., Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); United States v. Impson, 482 F.2d 197, 199 (5th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 246 (1973); and (3) with respect to the relationship between a fo......
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