United States v. Jones
Decision Date | 12 April 1973 |
Docket Number | No. 72-2261.,72-2261. |
Citation | 475 F.2d 723 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Nelson JONES, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Robert Glass, New Orleans, La., (court appointed) for defendant-appellant.
Gerald J. Gallinghouse, U. S. Atty., Harry R. Hull, Jr., Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
Before MORGAN, CLARK and INGRAHAM, Circuit Judges.
Lloyd Nelson Jones appeals from his conviction by a jury of robbing a federally insured bank. 18 U.S.C. § 2113. We affirm.
On January 9, 1970, the National American Bank in New Orleans was robbed by three men. After two of the alleged robbers had been arrested and were in custody, FBI agents investigating the case concluded that Lloyd Nelson Jones was the third member of the robbery team. A warrant for his arrest was accordingly obtained by the FBI office in New Orleans. Jones was subsequently traced to Cleveland, Ohio. The agents in New Orleans then notified the FBI office in Cleveland that Jones was probably at his wife's residence in Cleveland.
Agent Thomas H. Kirk appeared before a United States Magistrate in Cleveland on January 19, 1970, and on the basis of his affidavit was issued a warrant authorizing the search of the residence in which Jones was supposedly located. The following morning at 8 A.M. approximately ten FBI agents went to 11506 Whitmore Street in Cleveland to search the residence and to arrest Jones if he were there. Mrs. Jones answered the agents' knock at the door and was told that they had a search warrant authorizing a search of her home and were going to arrest Jones. She replied that her husband was not there. The agents entered the apartment, and while Agent Kirk talked with Mrs. Jones the other agents looked for the defendant and found him asleep in a back bedroom. The agents recovered a pistol from beneath his pillow, told him he was under arrest for the New Orleans bank robbery, gave him Miranda warnings, and placed him in handcuffs. By the time Agent Kirk reached the bedroom, Jones had already been given his warnings, was under arrest and in handcuffs. Agent Don Gordon then asked Jones where the money was, and Jones answered that it was in the suitcase, indicating a suitcase located about a foot and onehalf away from the head of the bed.
When the agents opened the suitcase, they found $1,190 in a cigarette carton. The serial numbers of three $20 bills matched those of the stolen money. A used airline ticket bearing the name of I. Levy and showing that it was purchased in Houston for a flight to Cleveland was also found in the suitcase. At the trial the money recovered from the suitcase, including the marked $20 bills and the airline ticket, were admitted into evidence over defendant's objections. Jones's signed confession, as well as diagrams of the robbery and several oral statements not reduced to writing, were also admitted.
As usual, the issues on appeal turn on the legality of the search and seizure of the physical evidence and on the admissibility of defendant's statements, which allegedly flowed from the illegal search. Jones contends: (1) that the search warrant was invalid; (2) that the search of the suitcase was not incident to his arrest; (3) that he did not consent to the search; and (4) that his statements were fruits of the illegal search and thus inadmissible.
We turn first to the validity of the search warrant, because if it is good then we do not need to consider defendant's other allegations of error.
The warrant was issued on the basis of an affidavit prepared by Thomas H. Kirk, an FBI agent in Cleveland. The entirety of Kirk's affidavit is as follows:
Thomas H. Kirk Signature of Affiant, S/A FBI Official Title, if any.
On its face this affidavit appears to support the issuance of the warrant. The problem is that testimony developed at the suppression hearing conclusively established that Lloyd Nelson Jones was not identified by bank employees as the affidavit states.1 On the contrary, no one at the bank was able to identify defendant Jones as one of the robbers immediately after the robbery.
The government's brief is devoted almost exclusively to arguments in support of the warrant. It is unnecessary for us to comment on them because of this court's holding in United States v. Upshaw, 448 F.2d 1218 (5th Cir., 1971). Faced with the question of the validity of a search warrant procured under circumstances almost identical to those present in the instant case, the court held the warrant invalid. Judge Godbold's opinion in Upshaw more than adequately disposed of the validity issue, and it is therefore appropriate to quote at length from his opinion.
Gonzales v. Beto, 425 F.2d 963 (5th Cir. 1970).
As in Upshaw, when the affidavit in question here is purged of its erroneous statement, it consists of nothing more than Agent Kirk's bare statements of belief and cause to suspect that the fruits of the bank robbery were in the residence at 11506 Whitmore Street. "Mere affirmance of belief or suspicion is not enough." Nathanson v. United States, supra, 290 U.S. at 47, 54 S.Ct. at 13. We hold that the search warrant issued to Agent Kirk was invalid. Therefore, it cannot be used to justify the search and seizure of the evidence introduced at defendant's trial.
Having concluded that the search and seizure here cannot be sustained on the basis of a search warrant, we must determine if there is another theory upon which to uphold the search.
Because the search here must now be characterized as warrantless, the government must establish that it is within one of the exceptions to the warrant requirement. Defendant concedes that his arrest was lawful. The issue then is whether the search of the suitcase located a foot and one-half away from the head of his bed was incident thereto. Both the government and the defendant recognize that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) is dispositive of this issue.
In Chimel the Supreme Court clarified the standard applicable in the "search incident to arrest" situation.
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