United States v. Nooks, 29334.

• Decision Date: 07 July 1971
• Docket Number: No. 29334.,29334.
• Citation: 446 F.2d 1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lavon NOOKS, Sinclair Hughes and John Henry Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 1283 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lavon NOOKS, Sinclair Hughes and John Henry Brown, Defendants-Appellants.

No. 29334.

United States Court of Appeals, Fifth Circuit.

May 19, 1971.

Rehearing Denied June 7, 1971.

Rehearing and Rehearing Denied July 7, 1971.

James E. Yates, III, Savannah, Ga. court appointed, for Hughes.

Thomas F. Walsh, Savannah, Ga., court appointed, for Nooks.

J. Ralph Beaird, C. Ronald Ellington, Athens, Ga., court appointed, for Brown.

John Henry Brown, pro se.

R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Richard C. Chadwick, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 7, 1971.

RIVES, Circuit Judge:

Nooks, Hughes and Brown were jointly indicted, tried and convicted for the crime of bank robbery in violation of Section 2113(a) (d), Title 18, United States Code.¹ The court imposed sentences of imprisonment of twenty (20) years on Nooks and Hughes, and twenty-five (25) years on Brown.

As to each appellant the only substantial questions presented for review are: (1) Did the district court err in admitting in evidence the fruits from the search of the automobile in which he was apprehended; (2) did the district court err in admitting as evidence in-court identification of appellant; and (3) is the verdict invalid because of its form? We decide the questions against the appellants and, finding no reversible error, we affirm each of the judgments of conviction.

I.

The contention most seriously urged is that, in denying the appellant's² motion to suppress and in admitting into evidence the fruits of the search of the automobile, the district court violated the Fourth and Fourteenth Amendments to the United States Constitution. Decision of that question requires a detailed consideration of the relevant evidence. On the facts pertinent to this issue, there is little or no dispute among the attorneys on appeal.³ The appellee's counsel candidly concedes that "The statement of the case and statement of facts as they appear in the brief on behalf of John Henry Brown, appellant, and the brief on behalf of Sinclair Hughes, Jr. and Roger Lavon Nooks, appellants, are substantially correct." We therefore quote at some length from the brief on behalf of appellant Brown:

"On November 25, 1968, at approximately 12:45 P.M. the Bank of Stapleton in Jefferson County, Georgia, was robbed by three Negro men, one of whom was armed with a pistol (R. 254). The robbers ordered three bank employees and a customer into the vault, took money from the tellers' windows and escaped.

"Six or eight minutes later, John C. Kilgore, Jr., the head cashier and vice-president of the Bank notified the Federal Bureau of Investigation office in Augusta and the Georgia State Patrol station in Thompson, Georgia, of the robbery (R. 150).

"At approximately 1:00 o'clock P.M. the Sheriff of Jefferson County, Zollie Compton, was notified of the robbery. He, in turn, called the local Georgia Bureau of Investigation Agent, Don Branch, and they proceeded to the Bank of Stapleton. Witnesses at the Bank informed Sheriff Compton and Agent Branch that the robbers had escaped in a white 1969 Chevelle Chevrolet with a paper tag from Dunlap Chevrolet in Augusta (R. 63). This detailed description of the getaway car along with the information that three Negro men were involved was broadcast over the police radio by the Georgia State Patrol station at Thompson.

"Alerted by the radio broadcast to be on the lookout for a late model white Chevrolet with three Negro occupants, local police officers began the search. * * * The Sheriff of Warren County, Alton R. Dye, also heard the radio broadcast, and he proceeded alone to the intersection of Georgia 16 and 16-C on the Warren-Glascock County line at a point about six miles from Stapleton. Sheriff Dye testified that at this time he had a description of the getaway car (R. 224) and a `vague description' of the robbers (R. 306). As to the robbers themselves, Sheriff Dye admitted that he knew only that `three colored males' were involved and that he had no more detailed information as to their size, distinguishing physical characteristics or dress (R. 224, 306-07).

"Sheriff Dye parked his car at the highway intersection and stood beside it with his rifle laying across the top of his car (R. 308). At approximately 2:00 P.M. Sheriff Dye observed Appellant Brown — a Negro male — driving pass (sic) the intersection toward Warrenton at a lawful rate of speed, apparently alone, in a 1964 yellow Buick convertible with a black top. Appellant's car was the fourth automobile to pass the intersection after the Sheriff arrived (R. 170).

"According to Sheriff Dye, Appellant, as he drove pass (sic) `threw up his hand and waved at me, and as he continued on north he kept looking back at me and veering to the left across the center line.' (R. 224).

"Suspicious, Sheriff Dye pulled Appellant's car over by using his red lights (R. 230). Sheriff Dye told Appellant to get out of his car and to hand over his driver's license — which Appellant did (R. 225).

"As Sheriff Dye checked Appellant's driver's license, he testified that Appellant "got to being a little nervous." (R. 225). He further testified that Appellant was talking a lot:

"`He never did quit talking. This boy talked about me and my people, my father. He was born and raised in about a mile from where I was. He knew me. At the time I didn\'t know him. It had been years since I had seen him.\' (R. 225).

"During this time, according to Appellant, Sheriff Dye searched Appellant's automobile:

"`He (Dye) went under the front seat and back of it and looked around over the inside of the car.\' (R. 208).

"Although Sheriff Dye saw nothing incriminating in the car, he testified that he thought he heard a sound which he could not identify come from the trunk:

"`I heard a rustling or something in the trunk of this automobile. I don\'t know what kind of sound it was, but it was a movement of some type. * * *\' (R. 225).

"Sheriff Dye later testified that the sound could have been made by some cargo shifting (R. 238), and he surmised Appellant might have been hauling liquor because the car was sagging in the rear and had mud and grass underneath it (R. 230). Sheriff Dye admitted that he had no actual basis for his suspicion that Appellant was carrying liquor and stated:

"`I stopped the car because he was acting suspicious toward me. He was looking back at me and got on the wrong side of the road. I knew there was something wrong. I didn\'t know what.\' (R. 231) (Emphasis added.)

"At this point Sheriff Dye asked Appellant for the key to open his trunk and Appellant replied that he did not have it (R. 225).⁴

"Sheriff Dye himself looked and saw that there was not another key in the ignition switch (R. 225).

"Based merely on his suspicion that there was `something' in the trunk which appellant did not want him to see, Sheriff Dye placed Appellant under arrest (R. 238) by placing Appellant's driver's license in his pocket (R. 225) and by ordering Appellant to drive to the Chevrolet dealer in Warrenton so the trunk could be opened by a locksmith (R. 225, 233).

"Sheriff Dye candidly admitted that there was nothing about the car or the driver which identified either with the bank robbery (R. 317) and, furthermore, at the time of arrest he had no concrete evidence that Appellant had any connection with the robbery of the Bank of Stapleton (R. 238). Significantly, Sheriff Dye stated that if he had sought to obtain a search warrant from a magistrate at this point, he would not have known what reason to give:

"`No, sir, I didn\'t know what for. I didn\'t know what I was looking for but I knew I was going to look in the trunk of that car.\' (R. 239) (Emphasis added.)

"As ordered by Sheriff Dye, Appellant, under arrest, proceeded toward Warrenton driving his own car (R. 311) followed closely by Sheriff Dye. It was at this point when Sheriff Dye radioed a description of the man he now had in custody that Sheriff Compton in another patrol car informed Sheriff Dye that the man he had just arrested fit the description of one of the robbers of the Bank of Stapleton (R. 311, 319-21, 226-27, 237-38).

"A few minutes later, the procession of Appellant and Sheriff Dye toward Warrenton was intercepted by Agent Herndon of the Georgia Bureau of Investigation and all three cars stopped. Agent Herndon re-checked Appellant's driver's license and his tag number which verified the bill of sale Appellant had exhibited for his Buick. The three cars then continued on toward Warrenton — Agent Herndon leading, Appellant in the middle and Sheriff Dye behind Appellant.

"As the procession passed a major highway intersection, Appellant in the middle vehicle turned left sharply and quickly accelerated. Sheriff Dye gave chase and Agent Herndon who had driven by the intersection spun his car around and joined the chase which reached speeds up to 115 m.p.h. (R. 125).⁵ Herndon radioed the cars position and a roadblock was set up by other police officers, one of whom shot out the tires on Appellant's Buick.

"Appellant got out of his car with his hands up surrounded by law enforcement officers with guns drawn (R. 65, 91, 92, 132, 138). Sheriff Dye in hot pursuit ran up to Appellant and hit him in the back of the head with the butt of his rifle (R. 139). Appellant was handcuffed as he lay on the ground.

"When Appellant emerged from his automobile, it rolled into a nearby ditch. As officers searched the inside of the car, they were surprised (R. 74) to see two men looking up at them from the trunk through the torn flap into which the top of the covertible folds⁶ (R. 66). The trunk was then pried open with a crowbar and codefendants Nooks and Hughes and a box of money were discovered. A gun was discovered on the floor board under the front seat (R....