United States v. Mitchell, 19798.

• Citation: 425 F.2d 1353
• Decision Date: 14 April 1970
• Docket Number: No. 19798.,19798.
• Parties: UNITED STATES of America, Appellant, v. James Dock MITCHELL, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

425 F.2d 1353 (1970)

UNITED STATES of America, Appellant, v. James Dock MITCHELL, Appellee.

No. 19798.

United States Court of Appeals, Eighth Circuit.

April 14, 1970.

Charles E. French, Asst. U. S. Atty., Kansas City, Mo., for appellant. Calvin K. Hamilton, U. S. Atty., and Anthony P. Nugent, Jr., Asst. U. S. Atty., were with him on the brief.

Maxim N. Bach of the Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for appellee. Willard B. Bunch, Kansas City, Mo., of the same Society was with him on the brief.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

This appeal by the United States, taken under the eighth paragraph¹ of 18 U.S.C. § 3731, presents us with the question of the continuing vitality of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), in the face of the Supreme Court's later decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The facts, naturally, are important. They are not in any real dispute.

The defendant James Dock Mitchell on May 14, 1969, was charged in a two-count indictment with violations of 18 U.S.C. § 659 (theft and knowing possession of stolen goods of a value in excess of $100 moving in interstate commerce). The goods described were a carton of 72 shirts taken April 24 from the Time-DC International Truck Lines terminal at Kansas City, Missouri.

Mitchell, by appointed counsel, promptly and before trial, moved to suppress (a) the carton of shirts seized upon the warrantless search of his automobile at the time of his warrantless arrest on April 24 and (b) statements taken from him while in custody. The motion was based upon the asserted absence of probable cause for his arrest.

The district court, pursuant to Rule 41(e), Fed.R.Crim.P., held a pretrial evidentiary hearing. At its conclusion the court sustained the motion to suppress. United States v. Mitchell, 299 F.Supp. 1395 (W.D.Mo.1969). It set the case for trial but provided that if the United States appropriately took an appeal under § 3731, the case would be removed from the trial docket until the appeal was finally determined. 299 F.Supp. at 1403.

At the hearing Mitchell testified that on the morning of April 24 he drove to a Kansas City tavern, known as the Chouteau Inn, and parked his car on the side lot, about three to four feet from the tavern's heavy side door and with the left of the vehicle near the door; that he entered the tavern through that door, met another man inside, and, within a minute or two, emerged from the building by the door and accompanied by the other man; that they went to the automobile and he raised the lid of its trunk to show his companion "some stuff that was in it"; that in the trunk was a cardboard carton about 4 × 3 × 2 feet in size, within which were smaller shirt boxes of the kind one sees in a clothing store; that the smaller boxes contained shirts;² that the carton was open and its flaps were loose; that one side was split; that the carton had no identification printing on it except a label, about 3 × 4 inches in size, on the right; that one of the flaps, when it was folded down, covered the label; that "I had no more than got it the lid raised * * * and then this officer grabbed me and told me I was under arrest"; that the officer advised him of his constitutional rights; that the other man was not arrested; that the lid of the trunk remained up after the arrest; that he was not yet showing the shirts to the other man at the time of the arrest; and that he was not interrogated at the scene.

The prosecution called Lieutenant Julian R. Hulett, night commander of the investigation division of the Kansas City police department. Lieutenant Hulett testified that he was the arresting officer.

Hulett further stated that he worked from 7 p. m. to 3 a. m.; that at 8 a. m. on April 24 he was awakened at home by a call from "my confidential informant"; and that the informant then told him (a) that a man by the name of James Mitchell would be at the Chouteau Inn between eight and about nine or nine-thirty that morning; (b) that he would be driving what the informant thought was a blue 1963 Chrysler; (c) that he usually parked on the north side of the tavern; (d) that Mitchell was an employee of the DC Freight Lines; (e) that he worked the night shift there; (f) that the trunk of the car would contain some men's Western style shirts; (g) that the shirts were stolen from the DC dock; (h) that Mitchell's purpose at the tavern was to sell the shirts; and (i) that Mitchell was between 35 and 40 years of age, was about 5 feet 10 inches tall, and had short cropped, curly hair.

Hulett stated that upon receiving this information he called a police sergeant for assistance; that he went to the Inn; that near the Inn he met three officers; that with Detective Fortner he entered the tavern; that a short time later Mitchell came in; that another man named Funk entered and had a drink with Mitchell; that Mitchell and Funk then left the tavern together through the side door on the north; that "I waited a very short time and then I left by this same door"; that he observed a blue Chrysler backed up to within three or four feet of the tavern with the trunk lid up; that Mitchell was reaching inside the trunk; that "I observed this large box in the trunk, and it had been split open and it contained other boxes * * * and on the top side of this box I observed a shipping label"; that the label was blue and white; that "armed with the information that I had from the confidential informant, and from my observations" he identified himself and made the arrest; and that he did not read the label until after the arrest.

On direct examination Hulett also testified as to four occasions, one in 1965, another in 1966, still another about three months prior to the hearing, and one more immediately before Mitchell's arrest, when he had received from this informant reliable information relative to criminal activity.

In response to an inquiry from the court Hulett said that he had not corroborated the tip of April 24 and that his information concerning the theft came solely from the informant. He went on to say that it was on the basis of the description received from the informant and the presence of the 1963 blue Chrysler that he recognized Mitchell that morning; that he saw the smaller boxes in the large carton but not the shirts within them; and that the smaller boxes were the size of ordinary shirt boxes.

On cross-examination Hulett testified that he had not verified any theft of shirts from the DC Freight Lines before he went to the tavern; that he did not verify that Mitchell worked at DC; that the informant did not tell him that he had observed a theft of shirts at DC; and that the informant did not tell him what the source of his information was. In response to inquiries from the court the Lieutenant stated that he did not ask the informant where he had obtained his information; that he made the arrest around 9 a. m.; that he gave no consideration to obtaining an arrest warrant because "I didn't think it was time for this, and * * * this man had been reliable in the past * * *."; and that the informant did not participate in the DC theft.

Such is the testimony.

We note preliminarily that there is no separate or particular problem about the confessional statements taken from Mitchell. The defense concedes that the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were fulfilled. And both sides agree that the statements stand or fall as being, or not being, the "fruit of the poisoned tree", depending entirely on the validity of the arrest. In other words, the statements are a proper consequence of Mitchell's being in custody. The whole case turns on the validity or invalidity of that arrest.

Neither is there any question that the search of Mitchell's automobile was incidental to his arrest and that if the arrest was lawful, the search was valid.

From our reading of the district court's careful and detailed opinion, we gain the impression that it placed great emphasis upon the fact that Hulett's informant was not named or otherwise identified at the hearing. The court used the adjective "unnamed", as applied to Hulett's informer, no less than 17 times in the course of its opinion. We also note the court's stress of what it felt was the absence of independent police investigation and of corroboration of the informant's tip.

The practicalities of the fact situation, irrespective of their importance or unimportance, deserve passing mention. Lieutenant Hulett was awakened at his home by his informant's call at 8 a. m., only five hours after the termination of his previous night's duty. He was told that Mitchell would be at the tavern between 8 and 9:30 a. m. This meant that Mitchell already might be there and already might have departed after the completion of his mission. Hulett had to move quickly and he must have moved quickly to call the sergeant, to dress, and to get to the tavern before Mitchell arrived. This was prompt action on his part and it was action under a pressure of time which scarcely would allow for a call to DC and for personal verification of Mitchell's employment there, the commitment of an interstate theft, and the identification of the stolen goods. What the informant told Hulett may have been hearsay but, as was observed in Draper, 358 U.S. at 313, 79 S.Ct. at 333, Hulett "would have been derelict in his duties had he not pursued it." One wonders whether we are to hang Hulett on the horns of his dilemma, that is, have him go to greater lengths independently to verify at the cost of losing his quarry and, as well, the good will of his reliable informant.

For general background we start, of course, with Mr. Justice Rutledge's well-known pronouncements in ...