United States v. Sterling, Crim. A. No. 32303.

• Decision Date: 27 January 1971
• Docket Number: Crim. A. No. 32303.
• Citation: 321 F. Supp. 1301
• Parties: UNITED STATES of America v. Bob W. STERLING.
• Court: U.S. District Court — Eastern District of Louisiana

321 F. Supp. 1301

UNITED STATES of America v. Bob W. STERLING.

Crim. A. No. 32303.

United States District Court, E. D. Louisiana, New Orleans Division.

January 27, 1971.

COPYRIGHT MATERIAL OMITTED

Gerald J. Gallinghouse, U. S. Atty., Joseph R. McMahon, Jr., Asst., U. S. Atty., for plaintiff.

Gene S. Palmisano, Lacour & Palmisano, New Orleans, La., for defendant.

HEEBE, District Judge:

On June 17, 1970, Bob W. Sterling was arrested by FBI Agents, accompanied by New Orleans police officers, for allegedly violating 18 U.S.C. § 659 by stealing two suitcases moving in interstate commerce. Thereafter, the Grand Jury returned a five-count indictment charging him with this and similar thefts to which Sterling pled not guilty. He then filed this motion to suppress on various grounds all physical evidence the government possessed as well as certain inculpatory statements made by defendant and allegedly obtained by the government in violation of defendant's Miranda rights. Pursuant to F.R.Crim.P. 12(b)(4), we ordered an evidentiary hearing. Because we feel that this evidence was obtained without violating any of defendant's rights, we deny the motion.

A. Probable Cause

Defendant moves for a blanket suppression of all the government's physical evidence on the ground that since the arresting agents lacked probable cause to arrest Sterling, all the evidence seized as a result of that arrest should be suppressed as being "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Without deciding whether the poisonous tree is so long-limbed as to extend to all these "fruits," we deny this part of the motion for we find that the agents had probable cause for arrest.¹

At the hearing, the evidence established that the FBI had been investigating a series of luggage thefts from New Orleans Moisant International Airport. On June 17, John Carter, an employee of Delta Airlines, informed the FBI that he had observed a 60-year-old white male, 5 ft. 7 in. tall, weighing about 140 lbs., wearing a green suit and white shoes, attempt to claim two suitcases. When challenged, he did not produce any claim checks but stated he was claiming the suitcases for a friend. When the rightful owner later claimed these bags, he reported missing two white suitcases belonging to his girl friend. Mr. Carter told the FBI that he had seen the above-described white male enter a cab carrying two white suitcases.

Mr. Ronald Raymond, a cab driver, testified that on June 17, 1970, he picked up the defendant at Moisant. He was carrying two white suitcases. Because of certain peculiar actions by his passenger, Mr. Raymond suspected criminal activity and contacted the New Orleans Police Department.² Later that day Mr. Raymond observed his passenger at the National Maritime Union Hall and contacted the police who, in turn, informed the FBI. Officers from both agencies met Raymond at the Hall where he repeated his story. Based on these facts and the description given by Mr. Carter, which is a substantially accurate description of the defendant, the FBI officers arrested him for the theft of the two white suitcases from the airport.

We think that the information supplied by Mr. Carter and corroborated and extended by Mr. Raymond gave the FBI officers information sufficient to warrant a reasonable man's belief that the defendant had stolen the two suitcases. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Lathers v. United States, 396 F.2d 524 (5th Cir. 1968).

Defendant argues that, even assuming the FBI agents could arrest him for some crime, they did not have probable cause to arrest him for theft from interstate commerce. He relies on the admission of the FBI agents that they were accompanied by the New Orleans police officers because they were not certain that these suitcases had been on an interstate flight and, thus, whether a federal or state offense had been committed.

This argument must fail for two reasons. First, probable cause does not require certainty; it merely requires a reasonable belief that the offense has been committed. "An officer need not be astronomically precise before making an arrest." Lathers v. United States, supra, at 531. The fact that, in an abundance of caution on the issue of which officers had jurisdiction, the FBI agents requested that the police officers accompany them does not eliminate the probable cause the agents already had. Moreover, to accept defendant's argument might result in the impermissible situation of having two sets of officers, each with probable cause to believe that an offense was committed, and yet because neither is certain of his jurisdiction, no arrest can be made.

B. Illegal Search and Seizure

Defendant moves to suppress certain check stubs and baggage keys on the grounds that they were seized in violation of his Fourth Amendment rights. Additionally, he seeks the suppression of all suitcases seized as the fruits of this illegal search. Wong Sun v. United States, supra.

This motion must fail because the evidence in dispute was seized during the routine processing of the defendant at FBI headquarters. United States v. Robert Lipscomb, 435 F.2d 795 (5th Cir. Dec. 8, 1970). All witnesses testified that the seizure complained of took place in FBI headquarters after defendant had been arrested. As part of his routine processing, the officers asked him to empty out his pockets and proceeded to inventory his personal belongings. Among his belongings were the check stubs and baggage keys complained of, with whose aid the FBI ultimately recovered some of the suitcases defendant is charged with stealing.

A similar inventory was recently upheld by the Fifth Circuit in Lipscomb over Fourth Amendment objections:

"* * * the actions of the Montgomery police in inventorying, Lipscomb's personal belongings without a warrant did not constitute an unreasonable search. It can not be denied that to prevent escape, self-injury, or harm to others, the police have a legitimate interest in separating the accused from the property found in his possession. An inventory is then necessary both to preserve the property of the accused while he is in jail and to forestall the possibility that the accused may later claim that some item has not been returned to him." At 800.

Accord, United States v. Robbins, 424 F.2d 57 (6th Cir. 1970).

As in Lipscomb, we feel that this inventory was carried out not for some pretextual reason but as part of a legitimate processing procedure.

C. Unnecessary Delay

Defendant also moves for the suppression of the same check stubs, keys and suitcases, as well as the inculpatory statements discussed below, on the grounds that they were seized during an unnecessary delay in bringing defendant before a United States Commissioner. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). F.R.Crim.P. Rule 5(a), which governs appearances before a United States Commissioner, provides in pertinent part that "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner."

We first reject defendant's claim that the time delay in presenting him to the Commissioner was too long and unnecessary. Sterling was arrested at 5:00 p.m. on June 17 and brought before the United States Commissioner early the next afternoon. Since the United States Commissioner in New Orleans regularly sits only between 1:00 and 5:00 p.m., Sterling was presented to the Commissioner at the earliest time possible. See, e.g., Thomas v. United States, 394 F.2d 247 (10th Cir. 1968), cert. den. 394 U.S. 931, 89 S.Ct. 1199, 22 L.Ed.2d 460; 1 Wright, Federal Practice and Procedure, § 74 (1969) and numerous cases cited in fn. 22 holding that "it is not an unnecessary delay to wait until regular business hours of the commissioner before producing the prisoner, and that statements obtained from the prisoner during that wait are admissible." Wright, supra. Moreover, we think it possible that even if the time delay were too long, the inculpatory statements made some two and one-half hours after the arrest and only thirty minutes after Sterling was brought to FBI headquarters for processing, would be admissible as "threshold statements" made at a point in time before there was any unnecessary delay. See, e.g., United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944).

We also reject defendant's contention that under these circumstances, any delay of whatever length was illegal because the police used this delay to investigate other crimes. Defendant relies on Adams v. United States, 130 U.S. App.D.C. 203, 399 F.2d 574 (1968). Adams was arrested around 2:00 p.m. on November 5, 1965, for a liquor store robbery. Instead of presenting Adams to a magistrate, the police put him through a series of lineups all that afternoon and evening and again the following morning. The police admitted these lineups were designed to solve a number of "open" holdups. On the morning of November 6, Adams was finally identified by a store owner who had been robbed earlier that month. Only after this identification was Adams presented to a magistrate for the robbery for which he was arrested. The court excluded the lineup identification as a fruit of an illegal detention, finding that "a period of delay in presentment prompted solely by a purpose to try to connect the defendant with crimes other than the one for which he has been arrested" was an unnecessary delay within the meaning of F.R.Crim.P. 5(a). At 576.

That case is easily distinguished. First, unlike Adams, who could have been presented the afternoon he was arrested but was not, Sterling was presented to the Commissioner at the earliest time possible.

Moreover, we find that, unlike Adams, the delay in presenting Sterling was not for the...