United States v. Nevitt

• Decision Date: 22 March 1976
• Docket Number: No. G75-275 Cr.,G75-275 Cr.
• Citation: 409 F. Supp. 1075
• Parties: UNITED STATES of America, Plaintiff, v. Jackie Leon NEVITT and Edward Calligton, Defendants.
• Court: U.S. District Court — Western District of Michigan

409 F. Supp. 1075

UNITED STATES of America, Plaintiff, v. Jackie Leon NEVITT and Edward Calligton, Defendants.

No. G75-275 Cr.

United States District Court, W. D. Michigan, S. D.

March 22, 1976.

J. Terrance Dillon, Asst. U. S. Atty., Grand Rapids, Mich., for plaintiff.

William E. Jackson, Grand Rapids, Mich., for defendant Nevitt.

E. Lou Hoos, Grand Rapids, Mich., for defendant Calligton.

OPINION

FOX, Chief Judge.

In this case, the two defendants are charged with entering a credit union with intent to commit a felony, in violation of 18 U.S.C. § 2113(a).¹ The defendants have jointly moved to suppress certain evidence seized by the police and Federal Bureau of Investigation on the night of their arrest.

An evidentiary hearing was conducted on March 9, 1976. Neither defendant chose to testify at that time. The United States presented, as its witnesses, Patrol Sgt. Lanny Wilde, Detective Lloyd Erb, and FBI special agent Jerry Thomason. The defendants offered the testimony of only one witness — Officer Joseph Betts.

I. FACTS

Sgt. Wilde is employed, as is Officer Betts, by Western Michigan University, although they are also deputy sheriffs for Kalamazoo County. At approximately 10:00 P.M. on November 29, 1975, while Wilde was putting gas in his patrol car, he overheard a radio call concerning a burglary at a credit union four miles away.² Although they were not yet formally requested to respond to the call, Wilde and Betts proceeded, in their separate units, to the credit union. Shortly after the initial call, Wilde was formally requested to go to the scene and he increased his speed so as to safely arrive as soon as possible. Betts followed immediately behind Wilde.

During this trip to the credit union, which is in a more rural area of the county, Wilde continued to receive information from the county dispatcher. Apparently the credit union was protected by an alarm system which included the capability of monitoring sounds coming from within the building. However, it was not the sheriff's office itself that listened to the sounds. Instead, the private citizen who actually did the monitoring called the county dispatcher when the alarm sounded. The evidence does not indicate whether the dispatcher simply relayed information received from the private citizen or whether the dispatcher was somehow "patched in" to the monitoring equipment itself.

The initial information Wilde received from the dispatcher was that voices could be heard inside the credit union and that a "pounding" sound was also audible. In a later dispatch, Wilde was informed that at least one voice was that of a negro male, although exactly what was being said inside the credit union either could not be discerned or the content was simply not passed on to Wilde. Since the dispatcher was in all other respects prompt in relaying the totality of what was happening in the credit union, the logical conclusion is that the actual words being spoken were themselves indiscernible.

Four or five minutes after the first call, at the time Wilde was approximately one mile from the credit union, he was informed that the voices could no longer be heard inside the credit union and that a second perimeter alarm had sounded. Wilde concurred in the dispatcher's inference that the burglars had left the building. I find that such was a reasonable inference, even though other explanations may also exist for the sounding of the second alarm.

As Wilde and Betts then travelled north on Ninth Street, on which the credit union is located, a couple of cars passed them going south. Wilde directed Betts to check out those cars,³ and Wilde continued to the credit union. Within one minute after hearing of the second alarm, Wilde drove slowly past the driveway of the credit union.⁴ Looking in the direction of the credit union, Wilde saw two apparently unoccupied vehicles in the south end of the credit union's parking lot. He then turned his attention back ahead of him, to a blue fast-back Mustang parked on the shoulder of Ninth, approximately 300 feet from the credit union. The car, facing north as was Wilde, was also apparently unoccupied.

Staying on the road itself, Wilde stopped a short distance behind the Mustang and called in its license number to the dispatcher. As he slowly pulled his patrol car up so that it half overlapped the Mustang, Wilde saw that the Mustang was occupied after all. The driver, a negro male, started the car and pulled out, heading north on Ninth at a lawful speed. As soon as Wilde knew the car was occupied he decided to stop it and question the occupants. However, he also felt he should wait for a back-up unit to arrive before attempting to stop the car. As a result he proceeded to follow the Mustang.

When the Mustang turned right onto KL street, Wilde observed a second occupant — another negro male. The Mustang proceeded along KL to a spot where it turned left into an apartment complex. Fearful of losing the Mustang in the complex, and knowing that his back-up unit was rapidly approaching,⁵ Wilde decided to stop the Mustang.

When Wilde activated his overhead lights, the Mustang quickly accelerated for a short distance and then pulled into a parking lot and stopped. Wilde drew his weapon, approached the Mustang, and requested the occupants to get out and put their hands on the roof of the vehicle. Eventually both complied, although the driver attempted, at first, to carry on a conversation.⁶ Betts arrived and covered the occupants while Wilde patted down the driver. Two other officers arrived and pat-searched the passenger.⁷ The defendants are the two occupants of the Mustang.

After the patdowns, the defendants moved to the rear of the Mustang and Wilde looked into the car from the outside. Through the driver's window, he could see a crowbar lying on the passenger's seat. The crowbar was then seen more clearly from the passenger's side. In addition, through the rear passenger's window, Wilde observed a flashlight inside the car.

After observation of these and other items in the Mustang, the defendants were placed in separate police vehicles to await arrival of the county sheriff's units. Neither Betts nor Wilde viewed themselves as making a formal arrest although undeniably the defendants were not free to leave.

When Detective Erb of the Sheriff's department arrived he also observed the interior of the Mustang, although he likewise did not actually enter the car to make his observations. In addition to the articles mentioned above, Erb also saw the fingers of a red glove under the right front seat. The vehicle was impounded and towed to the sheriff's department garage, where it was thoroughly searched.

FBI special agent Thomason participated in the investigation at the credit union and had observed a heel print outside the credit union.⁸ When Thomason later observed the heel of defendant Nevitt's shoe, Thomason thought it was similar to the print he had seen earlier. As a result Thomason seized Nevitt's shoes. Although Calligton's shoes did not match any prints found, his shoes were also seized and sent to Washington, D. C., to be examined for the presence of paint chips and metal filings.⁹

II.

Defendants claim (i) that their arrests were illegal for lack of probable cause, and (ii) that the seizures of their shoes were unlawful for lack of a warrant. They seek to suppress the fruits of these illegal acts.

If the police acted properly in stopping defendants and effecting their arrests, the evidence later seized is admissible. Seizure of such items as shoes is permissible as incident to a valid custodial arrest, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The seizure comes within an exception to warrant requirement (at least), even though it occurred at the station house rather than the scene of the arrest. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

Similarly, where probable cause exists to search an auto and exigent circumstances would justify an on-the-spot search, an automobile may be removed to a police garage and searched at the latter location. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In fact, the Supreme Court has even allowed such a procedure without discussing the necessity for exigent circumstances. See Texas v. White, 67 U.S. 423, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975)

III.

Assuming that Wilde's "drawn gun" stop and pat-down amounted to an arrest,¹⁰ he must have had probable cause to effect such an arrest. In determining whether probable cause existed, I have given no weight to (i) the description of the burglars' race and (ii) the radio message that the cars on Ninth Street were not involved. However, I do not deem these items as crucial, either separately or together, in assessing probable cause.

Probable cause to arrest depends upon whether, at the moment the arrest was made, the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspects had committed an offense. Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 618 (1972); Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Truitt, 521 F.2d 1174 (6th Cir. 1975) (probable cause to seize). I hold that the factors which I have disregarded in this context were not shown to be sufficiently trustworthy to be considered in determining probable cause.

No evidence was presented to the court which would support the trustworthiness of the conclusion as to the racial description of the burglars. The person who drew the conclusion did not testify and no other witness was able to testify as to why the conclusion was drawn. While I can, in the circumstances of this case, assume the trustworthiness of the person who drew the conclusion (it...