United States v. Pearce

• Decision Date: 29 February 1960
• Docket Number: No. 12733.,12733.
• Citation: 275 F.2d 318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam PEARCE and Harold Hadesman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F.2d 318 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. Sam PEARCE and Harold Hadesman, Defendants-Appellants.

No. 12733.

United States Court of Appeals Seventh Circuit.

February 29, 1960.

Julius Lucius Echeles, George F. Callaghan, and Frank W. Oliver, Chicago, Ill., for appellants.

Robert Tieken, U. S. Atty., Charles R. Purcell, Jr., Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before HASTINGS, Chief Judge, and KNOCH and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Defendants Sam Pearce and Harold Hadesman were charged in a two-count indictment with (1) transporting stolen furs having a value of more than $5,000 in interstate commerce from Seattle, Washington, to Chicago, Illinois, in violation of Sec. 2314, Title 18 U.S.C., and (2) receiving, concealing and storing fur coats, moving as a part of interstate commerce from Seattle to Chicago, knowing the same to have been stolen, in violation of Sec. 2315, Title 18 U.S.C. No value was alleged in count 2, by reference to count 1 or otherwise. A trial was had by the court without a jury. Both defendants were found guilty on each of the counts and separate judgments were entered. From such judgments defendants appeal.

We conclude that the judgments must be reversed for reasons subsequently to be stated. The issues we shall discuss, which in our view are decisive, require no more than a sketchy outline of the facts. A burglary occurred in a fur salon located in a suite of rooms in the Olympic Hotel in Seattle, Washington, between the night of August 23, 1957 and the morning of August 24, 1957. Prior to that time, defendants were in Seattle where they attended a prize fight in the company of John Pearce (a brother of Sam). John Pearce conducted a pawn shop and sold two foot lockers to defendants. He testified he did not remember which of the defendants made the purchase or payment, although they were both present at the time. Defendants were together in Portland, Oregon, a distance of 180 miles from Seattle, where, on August 31, 1957, they boarded a train destined for Chicago. They shared a compartment and included in their luggage was a foot locker, not identified either as the one purchased from John Pearce or the one which was later found and which contained the stolen furs.

On September 9, 1957, defendants were seen by FBI agents driving on Mannheim Road near Grand Avenue. Pearce was driving a 1957 Oldsmobile and Hadesman was driving a Chevrolet. Both drove into a parking lot at O'Hare Field where they parked their cars side by side. Pearce opened the trunk of his automobile, in which agent Stoelting from a distance of 50 to 60 feet observed a foot locker and two suitcases piled on top of each other. Pearce closed the trunk of his car, joined Hadesman in the Chevrolet and drove away, leaving the Oldsmobile in the lot. Harry Tomaras, owner of a service station at 3101 Mannheim Road, Franklin Park, picked up the automobile that night and towed it to his station. He did this on orders from someone other than defendant Pearce. He was told by FBI agents to put the car in his garage and not permit its removal. The Oldsmobile remained there, under constant surveillance by FBI agents, from September 9, 1957 until September 17, 1957, when the trunk of the car was searched for the first time by agents acting pursuant to a search warrant. As a result of the search, a foot locker and two suitcases found in the trunk of the car were discovered to contain furs valued at more than $5,000, later identified as those stolen in the burglary in Seattle.

Hadesman was arrested at his home on September 17, 1957, on the strength of an arrest warrant issued upon complaint made by agent Evans on September 13, in which he swore that Hadesman had furs in his possession. During the trial the district attorney admitted that the complaint on which the warrant issued was defective on its face and that evidence obtained pursuant to the execution of the warrant would be improper. Thereupon, the district attorney was permitted to proceed on the premise that Hadesman's arrest was legal irrespective of the fact that the warrant was invalid.

Prior to the trial Pearce filed his petition to quash the search warrant and to suppress the evidence obtained as a result of the search of his Oldsmobile on September 17, 1957. Hadesman joined in the motion to suppress. After a hearing, both motions were denied by the court. The furs and the three pieces of luggage found as a result of the search were admitted into evidence over objections made by each of the defendants.

We shall consider the following issues: (1) whether the court erred in failing to suppress the evidence because of the insufficiency of the affidavit to support the issuance of the search warrant; (2) whether count 2 of the indictment is defective because of a failure to allege the value of the property which defendants allegedly received, concealed and stored and (3) whether the counts are duplicitous so as to void a conviction as to both counts in absence of an election by the government on which count to proceed. Inasmuch as the judgment is to be reversed, there is no point in discussing alleged errors which might or might not occur on another trial. This is particularly true of defendants' contention that there is no proper proof of venue. Even so, we cannot resist the temptation to observe that we see no good reason for a record coming to this court with that point in dispute, particularly, as in the instant case, where any doubt could have been so easily removed.

The most important issue before us, which must be decided adversely to the government, is whether the search warrant issued upon an affidavit sufficient to establish probable cause. As stated in the government's brief, "There is no question that under the Fourth Amendment to the Constitution and under Rule 41(c) of the Federal Rules of Criminal Procedure, an affidavit for a search warrant must recite facts and may not be based entirely upon information and belief." The affidavit was signed and sworn to by Raymond E. Stoelting as special agent of the FBI on September 13, 1957, before a United States commissioner. The affidavit alleged in substance that the affiant had reason to believe that an Oldsmobile car (describing the same) contained "One Dark Blue Foot Locker, 30 × 10 × 14; One Light Brown One Suiter Suitcase; One Blue Cloth Zipper Bag with White Trim," and that there was concealed therein certain property, "namely three Mink Coats and forty-six Mink Stoles and Jackets, having a value in excess of $5,000.00, stolen from the Olympic Hotel, Seattle, Washington, which have been unlawfully transported from Seattle, Washington, to Chicago, Illinois, in violation of Section 2314, Title 18, United States Code."

The affidavit continued as follows: "And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: That your Affiant, Raymond E. Stoelting, on information and belief, believes that three Mink Coats and forty-six Mink Stoles and Jackets were stolen from the Olympic Hotel, Seattle, Washington, on or about August 23, 1957; that your Affiant on the basis of confidential information, from a source which in the past has proved reliable, is advised that said three Mink Coats and forty-six Mink Stoles and Jackets were concealed in one dark blue foot locker, 30 × 10 × 14, one light brown one suiter suit case, and one blue cloth zipper bag with white trim, and left Seattle, Washington, August 30, 1957, for Chicago, Illinois, in the custody of Sam Pearce and Harold Hadesman; that your Affiant on September 9, 1957, saw in the trunk of a 1957 Oldsmobile Convertible Hardtop, color cream and blue, bearing 1957 Florida license No. IW61330, registered in the name of S. Pearce, one dark blue foot locker, 30 × 10 × 14, one light brown one suiter suit case and one blue cloth zipper bag with white trim and has kept said car and the trunk of said car under surveillance until September 13, 1957, without said trunk being opened or said luggage removed."

Prior to the hearing on the motion to suppress the evidence, the court, on defendants' motion, entered an order requiring the government to disclose the identity of the informer or informers who furnished the FBI with the matters referred to in the affidavit as "confidential information, from a source which in the past has proved reliable." In this connection, see Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 1 L.Ed.2d 639. In response to this order, the government stated that the informant referred to in the affidavit was John Pearce, of Seattle, Washington. The court heard extensive evidence bearing upon the asserted falsity of the affidavit and whether the affiant had personal knowledge of the matters alleged in the affidavit. That such a hearing was proper is hardly open to question. Giordenello v. United States, 357 U.S. 480, 486-487, 78 S.Ct. 1245, 2 L.Ed.2d 1503.

The government in its brief states, "This contention that the affidavit was based on hearsay squarely puts before the court the issue of whether, in a case involving vehicles rather than fixed premises, probable cause for a search may be based upon hearsay evidence not within the personal knowledge of the agents making the affidavit for a search warrant. And this case illustrates why the rule must be that hearsay evidence is competent for such a purpose." The issue, however, as applied to the facts of this case is not as simple as the government would have us believe. There is some confusion in the record as to the precise manner in which the information asserted in the affidavit was obtained by Stoelting. It is certain by his own testimony, however, that he received no information from John Pearce; in fact, he had never met or talked with him. He testified that he received the information from his immediate superior, ...