United States v. Smith

• Decision Date: 27 March 1972
• Docket Number: Crim. No. 13049.
• Citation: 340 F. Supp. 1023
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Stuart Birdsey SMITH.

340 F. Supp. 1023

UNITED STATES of America v. Stuart Birdsey SMITH.

Crim. No. 13049.

United States District Court, D. Connecticut.

March 27, 1972.

COPYRIGHT MATERIAL OMITTED

Peter A. Clark, Asst. U. S. Atty., New Haven, Conn., for plaintiff.

Alfonse C. Fasano, New Haven, Conn., for defendant.

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS

NEWMAN, District Judge.

The defendant, Stuart B. Smith, is charged with robbery of the State National Bank in Milford, Connecticut, on July 30, 1971. He has filed a motion to suppress various items of evidence seized at various locations by officers of the Wallingford Police Department and an agent of the Federal Bureau of Investigation during the early morning hours of July 31. A hearing was held on February 16, at which testimony was received from Sergeant Darrell York and Lieutenant John J. Cei of the Wallingford Police Department, Agent Thurl Stalnaker of the Federal Bureau of Investigation, the defendant and his wife. Four separate seizures are involved: (1) money taken from defendant's person, (2) a radio scanner and items of clothing taken from his car, (3) guns, ammunition and other items taken from his home and (4) items of clothing taken from his wife's car. The facts that I find to be established and the lawfulness of each seizure will be considered separately.

1. Between midnight and 1 a. m. on the morning of July 31, Sergeant York was parked in his police cruiser on Old Colony Road in Wallingford. He observed the defendant driving his car in a southbound direction. Defendant's car was weaving along the road. Believing the defendant to be driving under the influence of drugs or alcohol, Sergeant York, with his siren on and red light flashing, chased the defendant's car for about a quarter of a mile to apprehend him. At the start of the pursuit, Sergeant York radioed to his headquarters a report of a "signal three operator," indicating a drunk driver. While in pursuit, he continued to observe defendant's car swerving all over the road. The police car pulled along side as defendant's car slowed to a stop off the side of the road. Sergeant York got out, approached the driver's window and asked the defendant for his license and registration. He observed the defendant look for the papers and noticed that he had extreme difficulty performing the physical movements necessary to obtain the registration from the glove compartment. Finally, he asked the defendant to get out. The odor of alcohol was noticeable coming both from the defendant and from the interior of his car. A glass was observed on the floor of the car. The defendant had difficulty standing up, and his speech was slurred. Sergeant York placed the defendant under arrest for drunk driving. The defendant was patted down for weapons, but, at that point, no other search of his person or the car was made, nor was anything seized. During these events a second police cruiser, which had heard Sergeant York's radio report, arrived on the scene.

The defendant was then placed in the police cruiser and driven to the Wallingford police station. His car was left where it had stopped, off the road on the premises of a business establishment. At the police station, the defendant was asked to take a breath test for sobriety; he refused. Bond on the drunk driving charge was set at $500, for lack of which the defendant was placed in the lock-up in the police station. Prior to placing him in the cell, Sergeant York made a thorough search of the defendant's person and, in accordance with regular police practice, removed for safe-keeping all his personal effects and any items of apparel that might be used to inflict injury. The only item that fell into this second category was the defendant's shoelaces, since he was not wearing a belt when arrested. Among the personal effects was $379 in cash taken from his trouser pockets. The personal effects were inventoried and placed in an evidence envelope. Sergeant York's purpose in removing the money was to avoid any later claim that the defendant, while in his cell and under the influence of alcohol, had flushed his money down the toilet.

Shortly after the defendant was placed in a cell, Lieutenant Cei, officer in command of the Wallingford Police Detective Division, who had been working on the second floor of the police station, came down to leave and noticed the police cars in the driveway. This indicated to him that someone had recently been brought in. Upon inquiring, he was told that Stuart B. Smith, the defendant, had been arrested for drunk driving. On July 30, Lieutenant Cei had been alerted by police teletype to the fact that the State National Bank in Milford had been robbed that morning. A second police teletype advised that the defendant was one of the suspects in the robbery. During that day, Lieutenant Cei learned from Agent Stalnaker that the suspects had taken from the bank "bait money", i. e., bills with known serial numbers. Lieutenant Cei obtained from Sergeant York the $379 that had been taken from the defendant and went upstairs to call Agent Stalnaker. He asked Stalnaker for the serial numbers of the bait money and discovered that four of the $20 bills taken from the defendant were part of the bait money. Lieutenant Cei then went down to the defendant's cell and placed him under arrest for possession of stolen goods.

The defendant's essential attack upon the validity of the seizure of the money is that the drunk driving arrest was in reality a pretext to stop and search him to see if he could be connected to the State National Bank robbery. The evidence, however, overwhelmingly establishes that the entire incident was a bona fide instance of serendipity. The police had ample probable cause to believe that defendant was driving under the influence of alcohol. At the hearing the defendant never denied his drinking nor the manner of his driving. The arrest for drunk driving was entirely valid. Moreover, while Lieutenant Cei had been alerted to defendant's status as a suspect in the bank robbery, Sergeant York and the other officers of the Patrol Division had not, and none of the officers involved in defendant's arrest had received any instructions concerning the defendant.

But the validity of the arrest does not necessarily determine the propriety of the seizure of the $20 bills made by Sergeant York, nor the ultimate use of them that was made by Lieutenant Cei. Generally a person lawfully arrested may be subjected to a search of the contents of his pockets, United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926); Charles v. United States, 278 F.2d 386, 388-389 (9th Cir. 1960), cert. denied 364 U.S. 831, 81 S.Ct. 46, 5 L.Ed. 2d 59 (1960), but this principle may well not apply to arrests for minor traffic offenses. Amador-Gonzalez v. United States, 391 F.2d 308, 315 (5th Cir. 1968). Once a pat down has established the absence of weapons, the justification for further search must turn on the likelihood of carefully concealed weapons or the presence of instrumentalities or evidence of the crime for which the defendant was arrested. Arrests for driving under the influence of alcohol or drugs have been recognized to permit searches for items relating to these offenses. Id. at 316, n. 8; see Annotation, 10 A.L.R.3d 314. While a search of pockets, following a pat down for weapons, is not needed to locate liquor on the defendant's person, it is justified to find other evidence of the crime, such as a paper napkin, match cover or swizzle stick from a bar where the defendant may have been drinking. The fact that the defendant was searched at the police station, within an hour after his arrest, rather than at the scene of arrest does not impair the validity of the search of his person. United States v. Caruso, 358 F.2d 184, 185 (2d Cir. 1966), cert. denied 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966); United States v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970), cert. denied 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); United States v. Williams et al., 416 F.2d 4, 8-9 (5th Cir. 1969), cert. denied, 397 U.S. 968, 90 S.Ct. 1008, 25 L.Ed.2d 262 (1970). The search of the defendant's pockets is therefore valid as incident to his arrest for drunk driving.

Furthermore, it was entirely reasonable for the police to remove from the defendant his personal effects for safe-keeping before placing him in a cell. See United States v. Lipscomb, 435 F.2d 795, 800 (5th Cir. 1970), cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). This guards against later false claims of loss or theft. And, in a jail, money is usually considered to be contraband which must be removed from a prisoner because of the improper purposes to which it may be put.

The question then arises whether Lieutenant Cei had the right to make investigatory use of the four $20 bills. Defendant contends that even if the initial seizure was valid, once the money was placed in an evidence envelope for safe-keeping, it could not be examined without a search warrant. As stated above, the seizure was valid as a search incident to arrest and as a search conducted administratively before the defendant was locked in a cell. Where property has been validly seized in a search incident to an arrest, the fourth amendment does not prohibit police from taking a second look at the same items. Westover v. United States, 394 F.2d 164, 165 (9th Cir. 1968) (bait money); Evalt v. United States, 382 F.2d 424, 427 (9th Cir. 1967) (money); Baskerville v. United States, 227 F.2d 454, 456 (10th Cir. 1955) (identification card). While police examination of items lawfully seized may, in some situations, include even reading of private papers, United States v. Frankenberry, 387 F.2d 337, 339 (2d Cir. 1967); Cotton v. United States, 371 F.2d 385, 392-393 (9th Cir. 1967), there can be no doubt that the police may look a second time at written matter that was in plain view at the time a seizure is made....