United States v. Seay, 27999.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtJOHN R. BROWN, , and GOLDBERG and CLARK, Circuit
Citation432 F.2d 395
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Johnson SEAY and Hoyt Jackson McGee, Defendants-Appellants.
Docket NumberNo. 27999.,27999.
Decision Date22 October 1970

432 F.2d 395 (1970)

UNITED STATES of America, Plaintiff-Appellee,
Thomas Johnson SEAY and Hoyt Jackson McGee, Defendants-Appellants.

No. 27999.

United States Court of Appeals, Fifth Circuit.

October 1, 1970.

Rehearing Denied October 22, 1970.

432 F.2d 396
432 F.2d 397
Harry Wilters, Jr., Bay Minette, Ala. (court appointed), for Seay

Thomas M. Haas, Mobile, Ala. (court appointed), for McGee.

William R. Favre, Jr., Asst. U. S. Atty., C. S. White-Spunner, Jr., U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Thomas Johnson Seay and Hoyt Jackson McGee were jointly indicted, tried and convicted on a three count indictment charging violation of a statute of the United States which prohibits the passing or uttering, with intent to defraud, of a falsely made or counterfeited obligation of the United States.1 Each

432 F.2d 398
was sentenced to a term of four (4) years

On this appeal Seay urges the reversal of his conviction on two grounds: (1) his fingerprints taken by the Mobile, Alabama police should not have been admitted into evidence in his federal counterfeiting trial because such evidence was obtained as a consequence of an arrest on a State vagrancy charge lodged for the sole purpose of giving federal officers time to "make a case" against him; and (2) evidence obtained in a warrant-authorized search of McGee's automobile by United States treasury agents was inadmissible as the fruit of an unreasonable and illegal search because the automobile was then already the subject of an illegal State seizure.

McGee adopts Seay's point (2) and further attacks his conviction by contending that he was denied a fair trial by virtue of: (a) the period of time which elapsed between the date of arrest and the time of trial; (b) the action of the government in refusing to produce evidence at the preliminary examination; (c) the action of the court in admitting testimony — the nature of which was unknown to the defendants until the witness was called — which tended to establish that a crime not charged in the indictment had been committed by the defendants; (d) the court's refusal to sever the trials of each defendant; and (e) improper remarks in final argument by the United States Attorney.

Viewed most favorably to the government2 the proof showed the following facts.

On the morning of April 25, 1968 Seay and McGee, together with their wives, drove into downtown Mobile, Alabama where they made a number of different purchases of small articles costing from less than one to about three dollars. Later in the day the group drove to a shopping center in the southwest part of Mobile and McGee went to the Auto-Lec Store to purchase a putty knife for the alleged purpose of scraping bugs off of his automobile windshield. The store had no putty knives so McGee purchased a 1 dollar and 2 cent wall scraper instead and gave Edgar Murphy, the sales clerk, a 20 dollar bill, received his change and left the store. After McGee left the Auto-Lec Store, Murphy thought the 20 dollar bill looked peculiar so he conferred with the store manager, who agreed that the bill was counterfeit and sent Murphy and Steve Leslie, the Assistant Manager, to follow McGee. Murphy saw McGee walk down the shopping center sidewalk and enter the West Department Store, where he purchased a pair of men's undershorts costing 1 dollar and 35 cents, paid for them with a 20 dollar bill, received his change and returned to his car. This bill was later discovered to be counterfeit currency of a common origin with that passed at the Auto-Lec Store. Murphy wrote down the automobile license number and called the Mobile police. Leslie got into his car and went to search for the car containing Seay, McGee and their wives. Upon catching up with the McGee auto, Leslie observed it to be driven recklessly and at high speeds until it turned into another shopping center and parked. Leslie thereupon telephoned this information to the manager of the Auto-Lec Store, who in turn advised the Mobile police. After searching several stores at this second shopping center, policemen from Prichard, Alabama who were assisting the Mobile police in this case, located Seay, McGee and their wives in a drugstore. Leslie made a positive identification of McGee as the man who passed the counterfeit 20 dollar bill at the Auto-Lec Store. Seay, McGee and their wives were thereupon arrested.

At the time of the arrests, all of the defendants were out of McGee's car and the car was locked. One of the arresting officers obtained the door key from

432 F.2d 399
McGee, unlocked the door, put the gear shift lever in neutral in order to tow the car, relocked the door and returned the key to McGee. The four arrestees were then taken to the police station in a patrol car and the automobile was towed to a local motor company and parked there

Upon their arrival at the police station, the defendants were charged with vagrancy under the provisions of an ordinance of the City of Mobile and were searched, photographed and fingerprinted in the usual manner. One member of the Mobile police force testified that their booking on the vagrancy charge was done solely for the purpose of holding these persons to allow time for the government to file federal counterfeiting charges against them.3

On April 25, 1968, while Seay and McGee were still incarcerated on the Alabama vagrancy charge, the United States Commissioner issued a warrant to search McGee's vehicle based on an affidavit by treasury agents. The car was searched pursuant to this warrant, certain of the contents were seized and a copy of the warrant and a receipt for the property taken were left in the automobile. On the following day, April 26, 1968, a sworn complaint was filed against Seay and McGee, and they were taken before the Commissioner who ordered them held to answer in the district court. Subsequently, the vagrancy charges were dismissed by Mobile authorities and Seay and McGee were released from their custody. The counterfeiting charges were set down for preliminary examination before the Commissioner on May 14, 1968. However, when the government refused to present any evidence the defendants were discharged.

The search of McGee's automobile disclosed it contained numerous newly purchased items of small value, several of which were accompanied by sales slips or markings indicating that the purchases had been made in Mobile, Alabama. Subsequently it was also discovered that two additional counterfeit 20 dollar bills, of common manufacture with those passed at the Auto-Lec and West Department Stores, had been uttered at Eckerd's No. 70 Store and at Western Auto Store in Mobile on April 25, 1968. A can of Raid garden spray, having a retail price of 57 cents, which had been purchased that day at Eckerd's No. 70 Store with a counterfeit 20 dollar bill was found in the search of McGee's car. Seay's right thumbprint was developed on this counterfeit bill by latent fingerprint processes.

A Miss Janice Van Horn identified Seay and McGee as the two men who, in her presence, purchased one thousand dollars in counterfeit bills (of the same printing as those passed in Mobile on April 25, 1968) from her boyfriend, Charles Petty, at a truck stop near Baldwyn, Mississippi in early April 1968 for 250 genuine dollars. Both defendants testified and both admitted being in Mobile and together all of the day of April 25, 1968. McGee admitted making "maybe a half a dozen" purchases including those made in the Auto-Lec and West Department Stores, that day, Seay denied purchasing anything in Mobile on that occasion other than his breakfast and he denied knowing that McGee or the women with them were passing counterfeit money. Both Seay and McGee denied all knowledge of any purchase of counterfeit bills from Charles Petty or any other person in or near Baldwyn, Mississippi.

432 F.2d 400

On September 20, 1968, Seay and McGee were indicted by a federal grand jury on charges of uttering counterfeit obligations of the United States. The indictment charged both defendants with three specific instances of uttering counterfeit 20 dollar bills of the same serial and plate number at three different retail establishments in the City of Mobile on April 25, 1968 — the Auto-Lec Store, West Department Store and Eckerd's No. 70. Not guilty pleas were taken on November 25, 1968 and their joint trial followed on February 13, 1969.


As bases for the contention that the fingerprints taken at the Mobile police station should not have been admitted into evidence in his federal trial for counterfeiting, Seay urged: (1) that the arrest for violating the Mobile vagrancy ordinance was unfounded, since he and McGee in fact were properly dressed and had money and were therefore not vagrants; (2) that the arrests were illegal since they concededly were only used as a device to hold these men until federal agents could file counterfeiting charges. Thus Seay asserts, the fingerprinting violated his Fifth Amendment protection against self-incrimination and constituted an unreasonable search and seizure proscribed by the Fourth Amendment.4

The record before us discloses that the only fingerprints used for comparison with the latent image taken from the counterfeit bill were those taken on the occasion of Seay's arrest for vagrancy.5 It therefore becomes critical to determine whether this arrest complied with federal constitutional standards, because if the State arrest was illegal, its sequel — fingerprints — would be barred from use in a federal trial. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

No warrant was issued by the judicial authorities of Mobile for the vagrancy arrest of either defendant. Whether a warrantless arrest is constitutionally valid...

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