United States v. Johnson

• Decision Date: 11 August 1972
• Docket Number: No. 882,Dockets 72-1308,72-1309 and 72-1449.,887 and 893,882
• Citation: 467 F.2d 630
• Parties: UNITED STATES of America, Appellee, v. Alphonse JOHNSON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

467 F.2d 630 (1972)

UNITED STATES of America, Appellee, v. Alphonse JOHNSON et al., Defendants-Appellants.

Nos. 882, 887 and 893, Dockets 72-1308, 72-1309 and 72-1449.

United States Court of Appeals, Second Circuit.

Argued June 29, 1972.

Decided August 11, 1972.

COPYRIGHT MATERIAL OMITTED

Gerald E. Farrell, Wallingford, Conn., for appellant Alphonse Johnson.

James C. Whitney, New Haven, Conn. (Sosnoff, Cooper & Whitney, New Haven, Conn.), for appellant Rufus Higley.

Robert C. Mirto, West Haven, Conn., for appellant David White.

Thomas F. Maxwell, Jr., Asst. U. S. Atty., New Haven, Conn. (Stewart H. Jones, U. S. Atty., D. Conn., New Haven, Conn.), for appellee.

Before MOORE, SMITH and TIMBERS, Circuit Judges.

MOORE, Circuit Judge.

Alphonse Johnson, Rufus Higley and David White appeal from judgments of conviction entered after a jury trial in the District of Connecticut. Appellants were each charged with having conspired to rob a bank and with having robbed a bank in violation of 18 U.S.C. §§ 2113(a), (b),(d); 2 and 371, and with having possessed an unregistered firearm in violation of 26 U.S.C. §§ 5861 and 5871. At trial, after the Government rested, the conspiracy count and the count charging Alphonse Johnson with possession of an unregistered firearm were withdrawn. Before the case was submitted to the jury, the count charging Rufus Higley with possession of an unregistered firearm was dismissed. The jury returned verdicts of guilty on the remaining counts.

In their appeals, appellants have asked us to consider a total of six alleged trial court errors which they claim require reversals of their respective judgments of conviction. Alphonse Johnson claims that his confession to an F.B.I. Agent should have been suppressed because it was the result of an unnecessary delay in presenting him before a magistrate. Alternatively, he contends that he was not adequately warned of his rights. Lastly, he asserts that he was entitled to the presence of an attorney at a pre-trial photographic identification. Rufus Higley claims that the trial court erred in admitting items of evidence seized without a warrant at his residence at the time of his arrest. Both Rufus Higley and David White challenge the admissibility of a suitcase and its contents found near the back door of an apartment house shortly after David White was arrested in one of the apartments. David White also claims that the trial court erred in failing to order the disclosure of the identity of the informant who told the police where the suitcase could be found. As answers to these contentions rest on an analysis of the evidence presented at the trial and the suppression hearing, a somewhat detailed exposition of this evidence is required.

I.

At approximately 1:20 P.M. on March 24, 1971, three black males with stocking caps over their heads entered the Dixwell Plaza Branch of the New Haven Savings Bank. Two carried weapons, including a sawed-off shotgun, and ordered those present not to move. The third removed approximately $4,300 from the teller's drawers including "bait" money (currency which can be easily traced). As the three exited, Mr. Spence, the bank manager, set off an alarm to notify the New Haven Police Department.

In response to the alarm, police officers promptly appeared at the bank. They questioned the bank employees and discovered that moments before the robbery three black males entered the bank and quickly left. According to those questioned, those three robbed the bank. The police were therefore able to obtain descriptions of the robbers. Within minutes, police officers on foot and in patrol cars were searching for the robbers in the streets surrounding the bank.

In a school yard near the bank, Detective Granger, in the company of other police officers, discovered a trail of blood. On foot, they followed the trail to 162 Ashmun Street, a residence located approximately 1,350 feet from the bank. As the officers approached the residence, they met Detective Buffalo and other officers at the front door.

Detective Buffalo had been in a patrol car searching for the armed robbers when he received a report that there was a request for an ambulance at 162 Ashmun Street. It was this report that caused the convergence of the police officers at that address, Rufus Higley's residence.

With guns drawn, the officers entered the residence and discovered Rufus Higley lying on the kitchen floor suffering from a shotgun wound in his leg. Another black male, Chester Bordeaux, was standing near him. Both were placed under arrest.

Knowing that a shotgun, among other weapons, had been used in the robbery, that one robbery suspect was already wounded, that no weapons had as yet been discovered and that there were at least three robbers, Detective Buffalo and four other officers, with their guns drawn, proceeded to search the upstairs bedrooms. While searching the first bedroom, Detective Buffalo opened a closet and noticed a "grip" protruding from a bag which was lying on the closet shelf. As the "grip" appeared to be similar to one that might be part of a weapon, the bag was opened. The "grip" proved to be the blue handle of a hacksaw. In addition, a block of wood from a sawed-off shotgun was in the bag. After the contents of the bag were examined, Detective Buffalo noticed a black cashmere coat in the closet which he had seen Higley wearing on numerous occasions. He searched the pockets of the coat and found a shotgun shell. No other articles of clothing were searched. Then, having satisfied themselves that this first bedroom was secure, the officers proceeded to search another upstairs bedroom and bathroom. Nothing suspicious was found in these rooms.

Subsequently, Higley and Bordeaux were taken from the house; Higley to a hospital and Bordeaux to police headquarters. At police headquarters, Bordeaux was questioned as to his possible involvement in the bank robbery. During the course of this interview the police learned that moments after the robbery Bordeaux observed Higley (whom he knew well) leaning over a fence. As Bordeaux approached Higley, he noticed that Higley's leg was covered with blood. Bordeaux then assisted him to the back door of the Higley residence and left. Upon returning a few minutes later, he observed Johnson and White leaving the Higley residence together. When he entered the house, Higley asked him to call an ambulance. The police arrived as they waited for the arrival of the ambulance. Armed with this information, the police concluded that Bordeaux was probably not involved in the robbery and that their investigation should focus upon locating Johnson and White.

Several days later, on March 31 at approximately 9:00 A.M., Johnson was arrested on a federal warrant in Paterson, New Jersey, by detectives from the Paterson Police Department. Upon arrest, he was advised of the charges against him and warned of his constitutional rights.¹ Minutes later, at the Paterson Police Station, he read these same rights aloud from a poster on a wall and stated that he understood each one of them. Then an inventory of his possessions was made. During the course of this inventory Johnson removed currency from his pockets which proved to be part of the "bait" money. Shortly thereafter, Johnson orally admitted his participation in the bank robbery.

After Johnson's arrest, the F.B.I. was notified that the warrant had been executed. Between 12:00 and 1:00 P.M., F.B.I. Agents arrived at the Paterson Police Station. The appropriate forms were completed and Johnson was placed in the custody of the Agents. After the transfer, Agent Lyons orally warned Johnson of his constitutional rights and then presented him with a Waiver of Rights Form which he signed. Then, between 2:18 and 3:18 P.M., Johnson was interviewed by Agent Lyons and again he confessed. Throughout these proceedings, Johnson was generally co-operative and gave no indication that he wished to terminate the questioning. At approximately 3:55 P.M. Johnson was presented before a magistrate in Newark, New Jersey.

The following day a reliable informant notified the Paterson police of David White's whereabouts. At approximately 9:45 A.M. White was arrested in an apartment at 221a Van Houten Street in Paterson. He was taken to the police station where he was questioned as to his possible involvement in the robbery. During this interview, the informant again telephoned to advise the police that two suitcases belonging to White could be found outside the building at 221a Van Houten Street near the rear door. The informant also advised the police that one suitcase contained a shotgun. Knowing that the building was located in a transient and high crime area and that the suitcases were possibly visible to passers-by, the police, without a warrant, rushed to the building and discovered the suitcases. Upon immediate examination, one suitcase was found to contain a loaded sawed-off shotgun.

With the three suspects in custody, the police proceeded with their investigation of the bank robbery. They discovered that Sanders Boomer, David White's step-father, owned two shotguns and a pistol and that these items, in addition to a blue handled hacksaw were removed from his home in the course of burglary on March 22, 1971. According to Boomer, his step-son knew of the existence of the weapons. Upon examination of pertinent Government records, no shotguns were found to be registered to David White. The police also discovered that for two days prior to the robbery Higley, Johnson and White had been meeting at the Higley residence. Lastly, it was learned that White, in the company of Johnson, made several substantial purchases of clothes a few days after the robbery.

In due course, the above evidence was presented to a jury. It is clear that the jury was amply justified in returning verdicts of guilty. Appellants, individually and jointly, claim that certain information was improperly withheld from...