United States v. Kelley

• Decision Date: 12 July 1972
• Docket Number: No. 71-1961.,71-1961.
• Citation: 462 F.2d 372
• Parties: UNITED STATES of America, Appellee, v. Albert Guy KELLEY, Jr. and Donald Grover Woody, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

462 F.2d 372 (1972)

UNITED STATES of America, Appellee, v. Albert Guy KELLEY, Jr. and Donald Grover Woody, Appellants.

No. 71-1961.

United States Court of Appeals, Fourth Circuit.

Argued April 11, 1972.

Decided July 12, 1972.

I. C. Crawford, Asheville, N. C., for appellants.

Keith S. Snyder, U. S. Atty. (Bruce B. Briggs, Asst. U. S. Atty., on brief), for appellee.

Before BOREMAN and BRYAN, Senior Circuit Judges, and WINTER, Circuit Judge.

WINTER, Circuit Judge:

Defendants were convicted of receiving and concealing stolen property, i. e., 163 rolls of upholstery material belonging to Lawson Manufacturing Co., Morristown, Tennessee, of a value in excess of $5,000.00, in violation of 18 U.S.C.A. § 2315. Each was sentenced to five years' imprisonment and each has appealed, assigning numerous errors. We find merit in the contention of defendant Albert Guy Kelley, Jr. that there was insufficient evidence to convict him, and so we reverse his conviction. We affirm with respect to defendant Donald Grover Woody.

I

On or about December 4, 1970, 163 rolls of upholstery material were unlawfully taken from the warehouse of Lawson Manufacturing Co., Morristown, Tennessee. The next day two state law enforcement officers went to a business establishment near Lenoir, North Carolina, to observe a rental truck which had been parked there for some period of time. They went as a result of a telephone conversation with an informant. They observed two people, later identified as defendants Kelley and Woody, get into the truck and drive onto a public highway. The officers pursued the truck and attempted to stop it by the use of a blue light and siren. The truck did not stop immediately, and the officers continued their attempt to stop it, whereupon the driver of the truck, two or three times, sought to drive the truck into the side of the officers' car.

When the truck was finally stopped, defendant Woody stepped out of the driver's side and defendant Kelley got out on the passenger's side. Both of the defendants were placed under arrest for violation of state laws and both were subsequently convicted of failing to stop for a siren and blue light, and assault with a deadly weapon, i. e., the truck. They were sentenced to imprisonment for four months, with service of the sentences suspended upon the payment of costs.

After the defendants were taken into custody, Officer Harold Land obtained a search warrant, searched the truck, and found 163 rolls of upholstery material contained therein. Part of the fabric was plainly labeled "Lawson Mfg. Co., Morristown, Tennessee." The truck contained a copy of the rental agreement, indicating that it had been rented on December 2 to Central Manufacturing Company, Lenoir City, Tennessee. There was testimony at the trial that the upholstery material recovered had a fair market value of approximately $10,000.00.

Prosecution ensued and defendants were convicted in a trial by jury. At trial, they offered no evidence in their own behalf.

II

The majority of defendants' contentions warrant only summary discussion:

(1) We think that the indictment, basically in the words of the statute, contained a sufficient statement of every essential element of the crime charged to enable defendants to present their defense. It is not necessary to allege the owner or owners of stolen property constituting interstate commerce allegedly received and concealed, or where, when or how it was stolen. If knowledge of these facts is needed to prepare defendants' defense, it can, upon a proper showing, be obtained by a motion for particulars. Defendants did not file such a motion in this case.

(2) Defendants' arrest was not improper. N.C.G.S. § 20-183 (1965 Repl.Vol.) authorizes state law enforcement officers "to stop any motor vehicle upon the highway of the State for the purpose of determining whether the same is being operated in violation of any of the provisions of the Motor Vehicles Code," including the provisions requiring registration of the vehicle, operation by a properly licensed driver, etc. See, State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955). Hence, the police were acting properly when they turned on their siren and light and requested the truck to stop even though they had no probable cause to believe that a crime had been committed. United States v. Turner, 442 F.2d 1146 (8 Cir. 1971); D'Argento v. United States, 353 F.2d 327 (9 Cir. 1965), cert. denied, 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966). When defendants failed to comply with the request to stop and, indeed, attempted to collide with the police car, or run it off the road, manifestly, they had committed a crime in the presence of the arresting officers and were subject to arrest.

(3) There was probable cause for the issuance of the search warrant so that the evidence of the stolen goods uncovered in its execution was admissible. The officers' tip, defendants' evasionary and criminal tactics when they were sought to be stopped, and the fact that the truck was leased to someone other than defendants...