United States v. Nolan

• Decision Date: 15 July 1969
• Docket Number: No. 18580.,18580.
• Citation: 413 F.2d 850
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edson Lee NOLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

413 F.2d 850 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Edson Lee NOLAN, Defendant-Appellant.

No. 18580.

United States Court of Appeals Sixth Circuit.

July 15, 1969.

John West, court appointed, Cincinnati, Ohio, for appellant.

Roger J. Makley, Asst. U. S. Atty., Dayton, Ohio, for appellee, Robert M. Draper, U. S. Atty., Charles R. Dersom, Asst. U. S. Atty., Columbus, Ohio, on the brief.

Before WEICK, Chief Judge, and EDWARDS and PECK, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant appeals from his conviction after jury trial before the United States District Court for the Southern District of Ohio for armed robbery of a bank, in violation of 18 U.S.C. § 2113(a) and (d) (1964).

The bank robbery occurred on the morning of February 21, 1967, in Frankfort, Ohio. That same evening the FBI asked appellant to appear for an interview concerning the robbery. Appellant did appear and was interrogated. He was also placed in a lineup but was not identified.

After this interrogation, appellant left Ohio and went to Arizona. In April of 1967 the FBI discovered where appellant was residing in Phoenix, Arizona. An FBI agent, Ernest C. Smith, filed two affidavits based upon investigation and surveillance in Phoenix and procured and executed two search warrants. One search warrant pertained to a car which appellant had purchased in Arizona, and the other to the room in which he was living. The search of the car produced specific items (including a money bag with the name of the bank printed on it) which were identified as fruits of the bank robbery and were introduced at appellant's trial.

Appellant now attacks the affidavit and the search of the car on the grounds that probable cause for that search was not established.

The disputed affidavit follows:

"The undersigned being duly sworn deposes and says:

"That he (has reason to believe) that (on the premises known as) a 1960 Dark red Pontiac, bearing 1967 Arizona License JJA 137, now located in the driveway in front of Apt. 8, 4935 East Thomas Road, Phoenix, Arizona. Said vehicle being the property of and in the possession of Edson Lee Nolan.

" in the District of Arizona there is now being concealed certain property, namely $4,062.05 in U.S. Currency and coins, consisting of 2 $500.00 packages of $10.00 bills, $200.00 in rolled 5 cent coins, $190.00 in rolled 25 cent coins, $45.00 in rolled 10 cent coins and $2,680.35 in miscellaenous sic coins & currency. A $25.00 face value, U.S. Treasury Dept. Series E. Bond, in the name of Samuel & Lavina Saxour, Rt. #1 Frankfort, Ohio. Bank money bags, a bandana handerchief sic, a pair of blue bibbed overalls, 1 old style nickel plated long barrelled revolver with pearl grips, 1 nickel plated snub nosed revolver with dark grips, wiggs sic and facial putty make up. Which are the fruits, instrumentalities & proceeds of a Bank Robbery of the Citizens National Bank of Chillicothe, Ohio, Merchants & Farmers Branch, at Frankfort, Ohio on February 21, 1967.

"And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: Edson Lee Nolan is a suspect in the above bank robbery. When F. B.I. Agents went to the above address to talk with Ray Gray, Jr. who had information about this matter, Nolan whom the agents did not know observed them enter the house and escaped of foot. On this date 4/4/67 Special Agents Ernest C. Smith & Wallace T. Ferguson looked through the windows of the above vehicle and personally observed several rolls of coins in the opened glove compartment of the vehicle.

/s/ "ERNEST C. SMITH Spec. Agent, F.B.I."

The affidavit in relation to the search of the room appellant was occupying was also before the Commissioner at the time the search warrant for the car was issued. It provided:

"The undersigned being duly sworn deposes and says:

"That he (has reason to believe) that (on the premises known as) A bedroom in the residence of Irving Morgan @ 3114 N. 43rd Ave., Phoenix, Arizona. This bedroom is situated at the South East Corner of the residence. It is further described as the second bedroom on the left after entering from the front door and making a left turn into the hall. Said bedroom is now rented to Edson Lee Nolan.

" in the District of Arizona there is now being concealed certain property, namely $4,062.05, consisting of 2 $500.00 packages of $10.00 bills, $200.00 in rolled 5 cent coins, $190.00 in rolled 25 cent coins, $45.00 in rolled 10 cent coins and $2,680.35 in Miscellaneous sic U.S. Coins and currency. (All of the preceding money is U.S. Coins or Currency.) A $25.00 face value, U.S. Treasury Dept. Series E. Bond, in the name of Samuel & Lavina Saxour Rt. #1 Frankford, Ohio, Bank money bags, a bandana Handerchief sic, a pair of blue bibbed overalls, 1 old style nickel plated long barrelled revolver with pearl grips, 1 nickel plated snub nosed revolver with dark grips, wigs and facial putty make up. Which are the fruits, instrumentalities & proceeds of a Bank Robbery of the Citizens National Bank of Chillicothe, Ohio, Merchants & Farmers Branch, at Frankfort, Ohio on February 21, 1967.

"And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: On 4/4/67, Ray Gray, Jr. of 4935 E. Thomas Road, Apt. #8, advised Spec. Agents Ernest C. Smith & Wallace T. Ferguson of the F.B.I. that he was a close friend of Edson Lee Nolan and had had occasion to visit the subject in his room at 3114 N. 43rd Ave. in Phoenix, Ariz. At which time he observed a large number of rolled coins in Nolan\'s suitcase.

"Gray further furnished information about Nolan\'s girl friend, residence, and employment, which information proved on subsequent investigation to be reliable.

"Edson Lee Nolan is a suspect in the Armed robbery of the above listed bank.

/s/ "ERNEST C. SMITH Spec. Agent, F.B.I."

No attack is made upon the sufficiency of this affidavit to support the issuance of the search warrant for appellant's room.

We believe that the "probable cause" requirement of the Fourth Amendment was amply complied with in the two affidavits which were before the Commissioner. The Commissioner at the time of issuance of the search warrant for the car had before him facts "supported by oaths or affirmation" constituting "probable cause," "particularly describing the place to be searched" and the "things to be seized." U.S. CONST. amend. IV. Assuming that the hearsay evidence from Ray Gray, Jr., was essential to a finding of probable cause, there were "underlying circumstances" in Gray's personal observation of the rolls of coins in appellant's suitcase and in the FBI's confirmation of other information to support both the credibility of the hearsay and Gray's "reliability." See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The United States Supreme Court has never squarely decided whether or...