United States v. Powell

• Decision Date: 03 March 1969
• Docket Number: No. 12589.,12589.
• Citation: 407 F.2d 582
• Parties: UNITED STATES of America, Appellee, v. Charlie Lee POWELL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

407 F.2d 582 (1969)

UNITED STATES of America, Appellee, v. Charlie Lee POWELL, Appellant.

No. 12589.

United States Court of Appeals Fourth Circuit.

Argued October 31, 1968.

Decided March 3, 1969.

Certiorari Denied June 16, 1969.

William H. Murdock, U. S. Atty., H. Marshall Simpson, Asst. U. S. Atty., Greensboro, N. C., for appellee.

Arthur J. Donaldson, Salisbury, N. C., for appellant.

Before HAYNSWORTH, Chief Circuit Judge, SOBELOFF, Circuit Judge, and McMILLAN, District Judge.

Certiorari Denied June 16, 1969. See 89 S.Ct. 2113.

McMILLAN, District Judge:

Charlie Lee Powell was convicted by a jury in the United States District Court for the Middle District of North Carolina, Salisbury Division, on May 27, 1968, under an indictment charging him with (a) uttering or passing a counterfeit $20 bill; and (b) possessing some $3,220 of other counterfeit money. He was sentenced to ten years imprisonment on each count, with the sentences to run concurrently. He appealed, assigning errors relating mainly to the second count.

The chief question raised by the appeal is the legality of the search of Powell's automobile.

The evidence on this question is brief but clear. About two o'clock in the afternoon of April 19, 1968, Sergeant Thomas Yow and Detective Lieutenant Tucker of the Kannapolis, North Carolina Police Department were patrolling Highway 29 and 85, a four-lane interstate road which passes north and south through Kannapolis. They were looking for an escaped convict who reportedly intended to rob a local bank. They saw a 1961 Mercury automobile with a Georgia license plate on it and occupied by three men traveling slowly north along the highway. The car belonged to the defendant. The car turned off the highway into a large shopping center. The police, on suspicion, followed and parked nearby. Charlie Powell, the appellant, and Harold Powell, his brother, got out of the car. Harold Powell, followed by Lieutenant Tucker, went into the nearby Clark's Department Store and bought some shoes with a $20 bill. Charlie Powell went into the A & P Store. Sergeant Yow followed Charlie Powell into the A & P Store and watched him buy a carton of Winston cigarettes, get in line at the cashier's counter and pay for his cigarettes with a $20 bill.

Sergeant Yow went to the cashier and procured from her the $20 bill with which Powell had bought the cigarettes. Yow at that time judged and believed the bill to be counterfeit.

The officers followed the Powell car north along Highway 29 and 85 a short distance. At a stop light they parked behind the Powell car so that the two cars were blocking both traffic lanes. Sergeant Yow and Lieutenant Tucker approached the Powell car from both sides and placed the occupants under arrest while they sat in the car. Highway Patrolman Odom came along and stopped nearby. These activities blocked northbound traffic for "about a half a mile, as far as we could see." The officers seized the Powell car, placed the occupants in the police car and requested Highway Patrolman Odom to drive the Powell car. From the scene they drove a mile or more to the Kannapolis police department. The suspects were brought into the back door of the police department and searched. Thereafter, Sergeant Yow went out and looked in the car and saw a brown case in the back seat. This brown case contained counterfeit money. A black suitcase and a blue suitcase were found in the trunk of the car. The blue suitcase contained counterfeit money bearing Charlie Powell's fingerprints.

Charlie Powell had cashed a pay check in Georgia the previous day in an amount of between $140 and $150 but at the moment of arrest he had clutched in his hands some $282 of genuine currency, all of it in bills smaller than twenties. The defendants had spent the night in Charlotte and had taken between two and three hours to cover the distance about thirty miles according to the map from Charlotte to Kannapolis.

Eyewitnesses and fingerprint experts identified Charlie Powell as the person who passed the counterfeit $20 bill and as the owner of the blue suitcase in which other counterfeit money bearing his fingerprints was located.

Harold Powell and Thurston Fulford pleaded guilty of possession of counterfeit money. Harold Powell testified for the defendant Charlie Powell, but Charlie Powell did not testify in his own behalf. Harold Powell said the trio were on their way from Georgia to Baltimore to buy a large number of plastic jugs for Charlie Powell, but he never did say what the plastic jugs were for. Charlie Powell was stated to be a carpenter by trade.

The fruits of the search (counterfeit money and fingerprints) were not necessary to support Powell's conviction of uttering one counterfeit $20 bill; but they were necessary to support the conviction of possession of the $3,220 of other counterfeit money.

The appellant says the search of the car was unreasonable; that warrants are easy to get at a police station; and that if the evidence of $3,220 of counterfeit money in his suitcase with his fingerprints on it had been kept out of the case he could not have been convicted of possessing counterfeit money and in spite of the eyewitness testimony might not have been convicted of uttering the counterfeit $20 bill.

The question is "not whether it is reasonable to procure a search warrant, but whether the search was reasonable." United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (Emphasis added).

The search itself was reasonable. The appellant had been caught red-handed passing counterfeit money. He had his hands full of money in small bills at the moment of his arrest. The place of arrest was the automobile itself. The car and its occupants were under surveillance as suspects in a rumored bank robbery attempt; some apprehension by the police that the car might contain dangerous weapons under those facts would be reasonable. Some suspicion of the existence of accomplices would also be reasonable. The car itself was subject to seizure and forfeiture and could lawfully be seized for evidence as a part of the arrest; 49 U.S.C. § 782; United States v. Trotta, 401 F.2d 514 (4th Cir., 1968); see United States v. Callahan, 256 F.Supp. 739 (D.Minn., 1964). With traffic blocked in two lanes for half a mile or more on an interstate highway, it was reasonable to move the site of the search a mile or so away to the police station. The car belonged to the defendant; the right to search without a warrant includes a contemporaneous search pursuant to lawful arrest and "extends to things over which the accused may have control * * * and, to an extent depending on the circumstances of the case, to the place where he is arrested."...