United States v. Johnson

• Citation: 495 F.2d 378
• Decision Date: 05 April 1974
• Docket Number: No. 73-1308 to 73-1310.,73-1308 to 73-1310.
• Parties: UNITED STATES of America, Appellee, v. Ted Lewis JOHNSON, Jr., Appellant. UNITED STATES of America, Appellee, v. Marvin Thomas LESTER, Appellant. UNITED STATES of America, Appellee, v. John Edward LEE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

495 F.2d 378 (1974)

UNITED STATES of America, Appellee, v. Ted Lewis JOHNSON, Jr., Appellant.

UNITED STATES of America, Appellee, v. Marvin Thomas LESTER, Appellant.

UNITED STATES of America, Appellee, v. John Edward LEE, Appellant.

Nos. 73-1308 to 73-1310.

United States Court of Appeals, Fourth Circuit.

Argued December 7, 1973.

Decided April 5, 1974.

Fred Warren Bennett, Washington, D. C. (Court-appointed counsel), for appellants.

Oscar W. Bannister, Jr., Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellee.

Before WINTER, FIELD and WIDENER, Circuit Judges.

FIELD, Circuit Judge:

Ted Lewis Johnson, Jr., Marvin Thomas Lester and John Edward Lee appeal from their convictions for armed bank robbery. 18 U.S.C. § 2113(d).

At about 9:00 a. m. on September 22, 1972, four individuals wearing green jump suits and ski masks and carrying pillow cases robbed the Lewis Plaza Branch of the South Carolina National Bank in Greenville, South Carolina, of $15,904. The robbers fled from the bank in a 1967 Plymouth automobile which they abandoned about one-half mile from the bank and transferred to another getaway car. A short time later a man and a woman companion left the second car at a rental lot at the Greenville airport and boarded a flight for Atlanta.

FBI agents investigating the robbery quickly found the abandoned Plymouth and witnesses put them on the trail of the second car, a red Toyota. Phillip N. Enlow, Assistant Special Agent in charge of the Columbia, South Carolina, FBI office recalled a similar robbery in the Charlotte, North Carolina, area where the robbers, including a woman, effected an escape by a flight from Charlotte to Atlanta. At Enlow's direction, the FBI agents went to the Greenville airport where they found the Toyota which contained a ski mask and green coveralls. The agents also discovered in a trash can near the Toyota a white pillow case stamped with a Golden Eagle Motel mark with a bank teller's tabulation on the inside. Upon inquiry at the motel, the agents learned that five reservations for an Atlanta flight had been made that morning in the names of Mr. and Mrs. B. Kelly, R. P. Deskin, W. Bell and J. Hart. The agents also obtained descriptions of the male and female occupants of the Toyota from employees of the car rental agency and the airline. The woman was described as wearing a white uniform with a white hat and carrying a large handbag, while the man wore white pants and a white shirt. All of this information was relayed to the Atlanta FBI office by Enlow who offered the opinion that based upon the modus operandi of the Charlotte robbery the woman would be carrying the money. The Atlanta FBI office ordered the plane to circle the airport until agents could be dispatched to the terminal.

The FBI agents met the couple traveling as Mr. and Mrs. B. Kelly about 10:50 a. m. as they deplaned and escorted them to a room at the airport for questioning. Kelly told the agents that his name was James Leroy Green, while Mrs. Kelly maintained that she was Velma Kelly but offered no identification to that effect. During the questioning Mrs. Kelly's handbag was taken from her by the agents. The agents then took the couple to the FBI field office in Atlanta where they were interrogated in separate rooms. During the course of questioning Mrs. Kelly about her identification she indicated that she had identification in her handbag. Thereupon, an agent opened the handbag which disclosed a white pillow case containing a large amount of money and at the bottom of the handbag were identification cards which disclosed that Mrs. B. Kelly was in fact Eldrena Stewart. Upon further questioning Miss Stewart took from her undergarments approximately $2200 contained in wrappers bearing the inscription "South Carolina National Bank." The agent determined that the money taken from Stewart included "bait money" from the Greenville bank and also learned that the true identification of Kelly was Ted Lewis Johnson, Jr. Shortly thereafter, formal arrest warrants for Stewart and Johnson were procured.

Johnson was charged in a three count indictment with (1) bank robbery (18 U.S.C. § 2113(a)), (2) armed bank robbery (18 U.S.C. § 2113(d)), and (3) possession of stolen money (18 U.S.C. § 2113(c)). Stewart was charged in counts one and three and Lester and Lee in counts one and two. Stewart entered a guilty plea to possession of stolen money and count one was dismissed as to her. A jury found the appellants guilty of armed robbery, and they were sentenced to the custody of the attorney general for twenty years. All other counts were dismissed.

I.

The primary point on Johnson's appeal is his contention that the money taken from Stewart's handbag was the product of an illegal search and its use as evidence in the trial violated his Fourth Amendment rights. The district court conducted a suppression hearing and concluded that the agents had probable cause to arrest Johnson and Stewart at the Atlanta airport and that an arrest did, in fact, take place at that time. Accordingly, the district judge upheld the validity of the search on the ground that it was incident to a lawful arrest.

We agree with the district court. The Atlanta agents had the authority to make the arrest under 18 U.S.C. § 3052, and when they took Johnson and Stewart into custody at the airport and restricted their liberty of movement the arrest was complete. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). "No formal words are required, nor is a declaration necessary at the time of arrest." Moran v. United States, 404 F.2d 663, 666 (10 Cir. 1968); United States v. Baxter, 361 F.2d 116 (6 Cir. 1966). Whether the arrest at the airport was constitutionally valid depends, of course, on whether "the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that Stewart had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 70 S.Ct. 31, 94 L. Ed. 513 (1949). The record provides ample support for the finding of the district judge that the Atlanta agents had probable cause and reasonable grounds to believe that both Stewart and Johnson had committed an offense and that, accordingly, the arrest was constitutionally valid.

Aside from his challenge of the arrest, Johnson contends that the search of Stewart's handbag was unjustified since it was no longer within her "immediate control" as required by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We find this argument unpersuasive. When the investigative questioning focused on the handbag and required that it be opened to verify Stewart's identification it lost its innocuous character and became a legitimate subject of the officers' search. Assuredly this was not an unreasonable act on the part of the officers. To permit Stewart, a suspected participant in an armed bank robbery, to open the handbag would have been, to say the least, indiscreet. The answer to Johnson's argument is found in Chimel itself:

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. * * * And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee\'s person and the area "within his immediate control" — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." 395 U.S. at 762, 763, 89 S.Ct. at 2040.

Finally, Johnson urges that since the handbag was not searched at the time Stewart was taken into custody or shortly thereafter, it was not "substantially contemporaneous" with her arrest and was unreasonably remote under the principle of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963). We find no suggestion in Preston that the term "contemporaneous" contemplates immediacy; that case merely held that "once an accused is under arrest and in custody, then a search made at another place without a warrant is simply not incident to the arrest." 376 U.S. at 367, 84 S.Ct. at 883. That is a far cry from the present case where Stewart was undergoing custodial questioning with the handbag close at hand in the same room.¹

Since the search of Stewart's handbag was constitutionally permissible, the evidence was properly admitted at Johnson's trial.^1a

II.

Appellant Marvin Thomas Lester contends that a confession given by him to an FBI agent was coerced and that the district court employed an incorrect standard of proof in making the determination that the confession was voluntary.

Briefly stated, the facts bearing upon Lester's claim are as follows: After his arrest on the bank robbery charges Lester was placed in the Fulton County, Georgia, jail and on October 2, 1972, his wife visited him at the jail. Lester instructed her to arrange bail for Claude Franklin, a cell mate who was being held on shoplifting charges, and pursuant to these instructions Mrs. Lester engaged a person to post the bond. Thereafter, when Franklin's name was called for release Lester responded. However, when the officials checked the fingerprint card which had been made at the time of Franklin's arrest they discovered Lester's ruse...