United States v. Von Roeder, 62-70 through 65-70.

• Decision Date: 03 February 1971
• Docket Number: No. 62-70 through 65-70.,62-70 through 65-70.
• Citation: 435 F.2d 1004
• Parties: UNITED STATES of America, Appellee, v. Charles Mac VON ROEDER, Appellant. UNITED STATES of America, Appellee, v. James Albert GONZALES, Appellant. UNITED STATES of America, Appellee, v. Donald Lee SCHREINER, Appellant. UNITED STATES of America, Appellee, v. William Harry CARPENTER, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

435 F.2d 1004 (1971)

UNITED STATES of America, Appellee, v. Charles Mac VON ROEDER, Appellant.

UNITED STATES of America, Appellee, v. James Albert GONZALES, Appellant.

UNITED STATES of America, Appellee, v. Donald Lee SCHREINER, Appellant.

UNITED STATES of America, Appellee, v. William Harry CARPENTER, Appellant.

Nos. 62-70 through 65-70.

United States Court of Appeals, Tenth Circuit.

December 3, 1970.

Rehearing Denied February 3, 1971.

COPYRIGHT MATERIAL OMITTED

Arthur T. Biddle, Denver, Colo., for appellant, Charles Mac Von Roeder.

Michael M. Laden, Denver, Colo., for appellants, James Albert Gonzales and Donald Lee Schreiner.

Felix D. Lepore, Denver, Colo., for appellant, William Harry Carpenter.

Gordon L. Allott, Jr., First Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee.

Before BREITENSTEIN and SETH, Circuit Judges, and TEMPLAR, District Judge.

SETH, Circuit Judge.

The First National Bank of La Jara, La Jara, Colorado, was robbed by three individuals on June 19, 1969, at about 1:45 p.m. Two of the appellants, Carpenter and Gonzales, were identified as having been involved in the robbery itself and both were described as having been armed with handguns. The money taken from the bank was stuffed into pillow cases by the departing robbers.

Most of the events crucial to this appeal transpired at the La Jara airstrip shortly after the robbery. A witness, Jose Torres, testified that his company was building a feedlot on the site of the airport and that he was working there on the day of the robbery. At approximately 2:00 to 2:15 p.m. that day he saw a small plane having difficulty trying to take off, and drove over to it. One of the four occupants, identified as Carpenter, told Torres that they wished to use the other runway and went with Torres in his truck to see if certain construction equipment could be cleared away. When Carpenter returned to the plane, it was taxied toward the other runway. The area between the runways had been torn up by construction work and the plane got stuck in the mud. Some of the persons in the plane tried to push it out of the mud and when they could not do so, they abandoned it.

Some of the witnesses testified they saw three persons running away from the plane and others saw four. One of the men running was carrying a rifle and another was carrying a white sack. These were dropped in the open field and the men continued running. Colorado State Patrolman Elvin E. Boss drove up at about this time. The running men separated: Two ran behind a meat packing plant which is located at the side of the runway; one ran south across the open field; and the fourth ran west.

As the two approached the back of the plant, they were met by Harry Broyles, an employee at the plant who was armed. He ordered the two to drop everything and put up their hands, which they did. The two dropped a pillow case, a pair of binoculars, a pistol, and a small black scabbard. Mr. Broyles had fired one shot over their heads to add a measure of persuasion. Patrolman Boss arrived almost immediately after the shot and ordered the two men to lie down. He then took everything out of their pockets. The contents of their pockets, the gun, the binoculars, and the scabbard were placed in the pillow case. Boss later identified the two as Schreiner and Von Roeder. Patrolman Boss handcuffed the two and turned them over to a town marshal.

Boss then picked up the sack and returned to his car. As he approached his car, he was given another white pillow case by David Cerise, who had picked it up where it had been dropped by some of the individuals running from the plane. Cerise testified that when he picked up the pillow case from the open field, he looked into it and that it contained money. Patrolman Boss placed the two sacks in the back seat of his car and started after the man who had run south. He drove across the field until he could go no further and then got out and walked another fifty yards where he arrested Gonzales hiding in the brush.

During the period when Boss was arresting Gonzales, the two pillow cases remained in the unattended car. Boss testified that when he was returning to his patrol car people were just beginning to arrive in the vicinity; he did not see anyone enter or leave the patrol car; and the sacks appeared to be in the same condition as when he left them. Boss gave the pillow cases to Carter Watts, his superior, who marked one No. 1 and the other No. 2. Pillow case No. 2 contained money, the serial numbers of which had been recorded before the robbery.

William Henry Carpenter was arrested at approximately 10:00 p.m. the night of June 19, 1969, hiding in a nearby irrigation ditch.

The four defendants were tried on one count for a violation of 18 U.S.C. § 2113(a) (bank robbery), and a second count for a violation of 18 U.S.C. § 2113(d) (bank robbery with a dangerous weapon). The jury found Gonzales and Carpenter guilty on both counts. These were the two defendants who were identified by witnesses as being in the bank, and armed, and who did the actual holdup. Defendants Schreiner and Von Roeder were found guilty only of violating 18 U.S.C. § 2113(a). Gonzales and Carpenter were given concurrent sentences under the two counts. It is from these convictions and sentences that all the defendants now bring this consolidated appeal.

In the briefs on appeal there is one argument raised mutually by Schreiner, Carpenter and Von Roeder, which is that the items seized in the vicinity of Schreiner and Von Roeder when apprehended behind the meat packing plant should not have been admitted into evidence. Basically, the contention is that Patrolman Boss did not have the authority to arrest Schreiner and Von Roeder and therefore the items he seized were inadmissible. It is conceded by appellees that because of Colorado law Patrolman Boss did not have the authority to arrest the defendants. The trial court, finding such a lack of authority, suppressed all items actually taken by Boss from the persons of Schreiner and Von Roeder in his search of their pockets. The gun, scabbard, and binoculars which had been placed by Boss in the pillow case found near these two defendants were admitted as was the pillow case itself, but all other contents of this pillow case were suppressed because of the commingling with items illegally seized from the persons of the defendants. Appellants contend that the pillow case, gun, scabbard, and binoculars should also have been suppressed. The argument is that these four items were found in a "Chimel area" under the control of defendants. In other words, they contend that since officers may search the immediate area under defendants' control incident to a valid arrest, it follows that if the arrest is invalid there is a similar immediate area which is off limits to the officer. Appellee, in reply, argues that the items in question were either (1) abandoned by Schreiner and Von Roeder or (2) were in the control of Mr. Broyles and thus not subject to constitutional restrictions.

The record shows as to these items there was actually no search here at all. In Trujillo v. United States, 294 F.2d 583 (10th Cir.1961), we noted that: "It is not a search to observe that which occurs openly in a public place and which is fully disclosed to visual observation." The only real objection to the seizure of the items in our case is that had it not been for the coercive actions of Mr. Broyles, they would not have been lying on the ground in plain sight. We find no distinction between this situation and the situation in Trujillo. In Trujillo, the incriminating evidence was dropped by the defendant because he was being chased by law enforcement officers. It would certainly not have been dropped in plain sight had there been no such pursuit. We did not consider the validity of the arrest in Trujillo, nor did we speculate as to whether or not the items dropped could have been the subject of a lawful search and seizure had they not been dropped. The evidence was dropped, it was dropped under duress, and even so we found no constitutional infringement in the officers' retrieving it or in its admission into evidence. We need not reiterate the rationale of the exclusionary rule at this point, but it should be noted that the circumstances of this seizure are not even remotely suggestive of the sort of invasion of privacy condemned in Chimel and similar cases. Whether or not Patrolman Boss was authorized to arrest these defendants, he was certainly not violating their constitutional rights in retrieving the items lying in full view at the scene of their apprehension, and the seizure of such items and their admission into evidence is not precluded by the Fourth Amendment.

No. 62-70 — United States v. Charles Mac Von Roeder

Appellant Von Roeder argues that the contents of Exhibit 115, the pillow case found by Mr. Cerise in the open field and containing money taken from the La Jara bank, should not have been admitted into evidence because there was a break in the chain of custody. The pillow case in question had been placed in Patrolman Boss' car and left unattended for approximately ten minutes while Boss went to arrest Gonzales. Appellant urges that since there were several spectators in the vicinity, the contents of that pillow case could have been tampered with during the ten minutes the car was unattended. In Rosemund v. United States, 386 F.2d 412 (10th Cir.1967), we noted our agreement with the rule stated in Gallego v. United States, 276 F.2d 914 (9th Cir.1960). That rule (at 276 F.2d 917) is that:

"The trial judge\'s determination that the showing as to identification and nature of contents is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion."

In Rosemund we stated that the same test applies to questions of preservation and custody of evidence. It appears from the record that the...