United States v. Thompson

• Decision Date: 06 December 1965
• Docket Number: Docket 29893.,No. 141,141
• Citation: 356 F.2d 216
• Parties: UNITED STATES of America, Appellee, v. Gordon R. THOMPSON, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

356 F.2d 216 (1965)

UNITED STATES of America, Appellee, v. Gordon R. THOMPSON, Appellant.

No. 141, Docket 29893.

United States Court of Appeals Second Circuit.

Argued November 5, 1965.

Decided December 6, 1965.

COPYRIGHT MATERIAL OMITTED

Maxwell Heiman, Hartford, Conn., for appellant.

David Margolis, Asst. U. S. Atty., Hartford, Conn. (Jon O. Newman, U. S. Atty., Hartford, Conn., on the brief), for appellee.

Before KAUFMAN and HAYS, Circuit Judges, and TIMBERS, District Judge.^*

TIMBERS, District Judge.

Appellant was convicted, after a jury trial, in the United States District Court for the District of Connecticut, T. Emmet Clarie, District Judge, upon one count of entering a bank with intent to commit a felony affecting the bank, in violation of 18 U.S.C. § 2113(a) ¶ 2. On this appeal he claims that certain evidence taken from his hotel room three days after the bank entry was erroneously admitted at the trial because obtained as a result of an illegal search and seizure; that evidence of his fingerprints was erroneously admitted at the trial because obtained as tainted fruit of an unlawful arrest and detention; and that the indictment failed to charge an offense against the United States in that it did not charge the essential elements of a federal felony. We hold that Judge Clarie properly admitted the evidence of which appellant complains and that he correctly rejected appellant's claim as to the insufficiency of the indictment which was first raised on a motion in arrest of judgment. We affirm the conviction.

ILLEGAL SEARCH AND SEIZURE

On the night of September 11, 1964, the First National Bank of Windsor Locks, North Thompsonville Branch, was forcibly entered and a sum of money in excess of $100 was taken. That same night a fishing pole and tackle box were taken from a garage adjoining the bank. Appellant was seen with a fishing pole and tackle box across the street from the bank on the same night.

Two nights later, September 13, an automobile agency in Windsor (12 miles from North Thompsonville) was broken into; cash, a money bag, a gun and ammunition were taken. The following morning, September 14, at about 8 A.M., the owner of the automobile agency turned over to the Windsor police a receipt dated September 13 for Room 1540 at the Statler Hotel in Hartford which he had found under the window through which the break at the automobile agency had been made the night before. The police inspected the scene of the break at the automobile agency and found bloodstains from which they inferred that whoever broke into the building may have cut himself.

That same morning, September 14, the Windsor police, pursuing their investigation of the automobile agency break, learned from the manager of the Statler that the occupant of Room 1540 was one "Fred Herter" who had registered the night of September 11; and one of the clerks at the Statler told the police, "There was a man there with a bandage on his face." Three Windsor police officers, together with a Hartford police detective, thereupon went to the Statler in Hartford (7 miles from Windsor) where they arrived at 9:15 A.M. They had neither a search warrant nor an arrest warrant. Accompanied by the manager, the four police officers proceeded to Room 1540 and knocked several times on the door. There was no response, although movements in the room were heard.

One of the police officers went to a house phone 40 or 50 feet down the hall and called Room 1540. When the occupant answered, the officer said, "This is the police; we would like to come in and talk to you." The occupant replied, "All right." After the occupant opened the door and before the officers entered, they again identified themselves as policemen and again asked permission to enter. The occupant said, "Come on in." As they entered the room, the officers explained they were investigating several burglaries in the area and asked permission to look around the room. The occupant said, "Go ahead."

As the door to the room was opened, one of the officers noticed a 3" × 1½" bandage over the occupant's right forehead. Another of the officers testified that when he saw the freshly bandaged cut on the occupant's head as he opened the door, he "felt 99 per cent sure" that the occupant was the man they were looking for in connection with the automobile agency break.

Upon entering the room, the officers saw protruding from an open bureau drawer a money bag which proved to be the one taken from the automobile agency. Once the police were in the room, upon request of one of them, the occupant pointed to a gun under the bed which turned out to be the one taken from the automobile agency. They also discovered in the room the fishing pole and tackle box which had been taken from the garage adjoining the bank the night the bank was entered. Several rolls of coins were found in the room which later were traced to the bank which was entered the night of September 11.

The occupant of the room was formally arrested by one of the Windsor police officers immediately upon discovery of the money bag. He was taken to Hartford police headquarters and booked on the charge of breaking and entering the automobile agency; later that day he was taken to Windsor and booked on the same charge. The following morning, September 15, the occupant, having been identified as appellant on the basis of the name found in his wallet in the room at the Statler, was arraigned in the State Circuit Court at Enfield on the same charge and was remanded to the State Jail at Hartford. The following day, September 16, he was interviewed by two FBI agents who obtained his fingerprints, under circumstances related below, to compare them with fingerprints discovered at the bank after its entry. Appellant was indicted by a Federal grand jury on September 18 on the charge of entering the bank with intent to commit a felony.

Pursuant to Rule 41(e), Fed.R.Crim. P., appellant moved to suppress the evidence seized from his hotel room, including the money taken from the bank, the gun, ammunition and money bag taken from the automobile agency two nights later and the fishing pole and tackle box taken from the garage adjoining the bank the night the bank was entered, all of which was either directly or circumstantially relevant and material (its competence being the ground of objection) to connecting appellant with the offense of entering the bank. After a full evidentiary hearing before trial, the motion to suppress was denied on the ground appellant voluntarily consented to the search. At the trial, a renewed motion to suppress was denied and the evidence was admitted over appellant's objection. We hold that Judge Clarie's rulings in each instance were correct.

Voluntary Consent to Search

In upholding voluntary consents to search, we have said that "Of course the search and seizure in each case must stand or fall on its own special facts, and in the district court's judgment of the credibility of the witnesses," United States v. Dornblut, 261 F.2d 949, 950-951 (2 Cir. 1958), cert. denied, 360 U.S. 912, 79 S.Ct. 1298, 3 L.Ed.2d 1262 (1959), and that "A consent is not a voluntary one if it is the product of duress or coercion, actual or implicit. Moreover, to be voluntary, a consent must have been unequivocal, specific, and intelligently given." United States v. Smith, 308 F.2d 657, 663 (2 Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963).

Appellant need not have had a positive desire that the search be conducted in order for his consent to have been voluntary and effective. He had three opportunities to object to the entrance and search by the police. Each time, in response to the requests of the police to enter his room or to look around, he replied, "All right," "Come on in," or "Go ahead." The record is devoid of any evidence of displeasure on his part. Nor was there any evidence of exhaustive questioning, persistent demands or coercive action on the part of the police.

Appellant testified, at the hearing before trial on the motion to suppress, that he did not object because it would have been ineffectual. From our perspective his permissive attitude may seem foolhardy; it is on this basis that we are asked to draw an inference of coercion. Perhaps there is a coercive effect inherently produced when several police officers, with their uniforms and accompanying paraphernalia, confront a suspect and ask for permission to search. To sustain such a claim of coercion, absent any coercive words or acts by the police, would preclude a voluntary consent to search whenever more than one armed police officer confronts a suspect; it is only their number, their equipment and the fact they were police that appellant claims adds up to coercion. We refuse to so hold.

Appellant had to make a hurried choice. He lacked knowledge as to whether the police were searching the entire hotel or had focused on him. He knew nothing of the police discovery of the room receipt, of the bloodstains at the automobile agency, of the indication that the room occupant had a bandage on his face or of the money bag protruding from the open bureau drawer. It is irrelevant whether appellant consented in the hope that the officers were only routinely checking the hotel and would move on, or because he believed the police had caught up with him and his best course would be to cooperate. In either circumstance his consent was "unequivocal, specific and intelligently given." On the facts of this case, Judge Clarie properly denied the motion to suppress after hearing the evidence and evaluating the credibility of the witnesses; and he correctly admitted the seized evidence at the trial over objection. United States v. Smith, supra at 663-664; United States v. Dornblut, supra at 950-951; United States v. Bracer, 342 F.2d 522, 524-525 (2 Cir. 1965); United States v. Simpson, 353 F.2d 530, 531 (2 Cir. 1965); United States v. Ziemer, 291 F.2d 100 (7 Cir. 1961),...