United States v. Titus
| Decision Date | 15 July 1971 |
| Docket Number | No. 805,Docket 35156.,805 |
| Parties | UNITED STATES of America, Appellee, v. Harry Thomas TITUS, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony S. Kaufmann, New York City (Harry C. Batchelder, Jr., New York City, of counsel), for appellant.
Ronald L. Fancher, Asst. U. S. Atty. (H. Kenneth Schroeder, Jr., U. S. Atty., Buffalo, N. Y., of counsel), for appellee.
Before FRIENDLY, Chief Judge, and LUMBARD and OAKES, Circuit Judges.
Appellant was convicted on overwhelming evidence after trial before Judge Curtin and a jury, in the District Court for the Western District of New York, on a three-count indictment for bank robbery in violation of 18 U.S.C. § 2113(a), (b) and (d). He challenges the conviction on the sole ground that, after two suppression hearings, the Government was permitted to offer evidence obtained as a result of a warrantless nighttime arrest by FBI agents while he was in the apartment of his girl friend. He contends the evidence should have been excluded since the arrest was invalid because of absence of probable cause and for lack of a warrant which the agents had time to obtain, and also because, even if the arrest was valid, the evidence or some of it, was seized during an incidental search exceeding the limits imposed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
The bank robbery, perpetrated by two men wearing army fatigue jackets one of them armed with a sawed-off shotgun, occurred shortly after 5 P.M. on December 19, 1969. Tellers and customers described the appearance and physique of the robbers with great specificity and detail. A few days later Special FBI Agent Welch was contacted by an informant who had previously given information that had led to arrests and convictions; the informant named Lloyd Neville and appellant Harry Titus as the robbers. Between 3 and 4 P.M. on the afternoon of December 23, Welch and other agents visited the home of the head bank teller and exhibited a number of photographs to her. From one group of photographs she "positively" identified Neville as one of the robbers; from another she "tentatively" identified Titus as the man who had carried the gun.
The agents obtained a warrant for Neville's arrest and succeeded in arresting him at his home around 8:30 or 9 P.M. On being taken to the FBI office, he admitted participating in the robbery; shortly before midnight he identified Titus as his accomplice. Some further time was consumed while Neville explained that Titus was living at his girl friend's apartment and the agents located this on a city map. Without seeking to obtain an arrest warrant, a number of agents went to the apartment, arriving there around 1:30 A.M. After giving proper warnings of their identity and purpose, they entered — some through a front door, Agent Welch through the kitchen. The apartment was dark; Titus was found, nude and in a crouched position, with a sawed-off shotgun leveled at the agents. On command he lowered the gun, which the agents seized. One of the agents backed him against a wall and directed another to bring clothing. In the course of doing this the latter agent noticed and seized two army fatigue jackets of the type that had been described as having been worn by the robbers. Agent Welch, making his way back into the kitchen through which he had entered and had now lighted, found on the floor a considerable quantity of money, including some with straps bearing the name of the bank and some with straps bearing the name of one of the victimized tellers. This was seized. Agent Welch thought the money might have spilled onto the floor from a trash can he had knocked over upon first entering the darkened apartment.
Recital of the facts alone suffices to show the absence of merit in the contention of lack of probable cause. Whether or not the combination of the informant's report and the teller's "tentative" identification of Titus'...
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