United States v. Walker

• Decision Date: 10 June 1957
• Docket Number: No. 11975.,11975.
• Citation: 246 F.2d 519
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Farris WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

246 F.2d 519 (1957)

The UNITED STATES of America, Plaintiff-Appellee, v. Farris WALKER, Defendant-Appellant.

No. 11975.

United States Court of Appeals Seventh Circuit.

June 10, 1957.

Alvin A. Turner, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Edwin A. Strugala, Asst. U. S. Attys., of counsel, for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

FINNEGAN, Circuit Judge.

After a pre-trial hearing on defendant Farris Walker's motion to suppress (Fed. R.Crim.P. Rule 41, 18 U.S.C.) physical evidence taken from his person, the motion was overruled because, the trial judge thought Treasury enforcement agent D. Spillane had "reasonable ground" to believe Walker was committing a crime. That ruling is the sole basis put forward for reversal of the judgment entered upon finding Walker guilty by the district judge, sitting without a jury, on both counts of a two-count indictment.¹

Walker testified in support of his motion, grounded on U. S. Const. Amendments² IV and V, and Federal agent Spillane gave testimony on behalf of the government on the issue raised by that motion. Adams, the other agent with Spillane at the time Walker was apprehended, did not testify at the suppression hearing. Confining ourselves, for the moment, to evidence adduced at that hearing the operative facts follow.

Walker, who had never been previously arrested, left his home on August 13, 1956 at about 1:30 in the afternoon in his automobile accompanied by two adults one of whom was Kemp Wallis and defendant's three-year-old grandson. While Walker was proceeding along South Parkway, a public street, in Chicago, Illinois, his automobile was curbed by another vehicle, near 43rd Street, in which Federal agents Spillane and Adams were riding. Walker and all occupants of his automobile were ordered out and told to place their hands on the top of the vehicle and submit to search. Walker testified that one of the officers said that they were under arrest, and when defendant asked the agents "if they had a warrant * * * they said sure * * *."

When Walker asked the reason for his arrest he was told to "keep quiet" and he obeyed. After being searched Walker was jailed and later released on bail. Under questioning of his own attorney, Walker stated that at the time of the arrest, search and seizure, he "was not violating any laws whatever"; "just driving down the street."

Turning now to the testimony given by Agent Spillane for the government during the suppression proceedings, he stated that on August 13, 1956 "At approximately 12:45 * * * he received a telephone call from an informant who * * * he had had previous dealings with, who had proved to be a reliable informant * * *." This testimony about the informant's reliability was stricken on motion by defense counsel so that the substance of Spillane's testimony on this phase of the case results in evidence that he received information concerning the defendant and led him to this point:

"Upon the conclusion of the conversation I made a check of the files in my office for the name Farris Walker, which check was negative. His name was not in our files.

"The second thing I did, I called the Central Police Station, the Narcotic Detail, and made a check over the telephone on Farris Walker. They gave me a positive check.

"Mr. Turner: Defense Counsel: I will object to what they gave him.

"The Court: Sustained."

Asked by the Assistant United States Attorney what he did "next," Spillane testified: "The next thing I did, in the company of Agent Adams I proceeded to my automobile and went directly to the vicinity of 43rd and Forrestville Avenue. I parked my car on the north side of 43rd Street, a short ways east of Forrestville, and at that time I was observing a green 1950 or 1951 Pontiac Sedan that has been previously described to me over the telephone:

"I stayed in this position for maybe two, maybe one to three minutes, and then I moved the car, my own car, around the corner, went south on Forrestville, past the Pontiac in question, drove to the intersection of 44th Street and Forrestville, made a U-turn at that intersection, and I was at that time facing north on the east side of Forrestville Avenue, where I parked the car. I stayed in the car for approximately three to five minutes, and I was using binoculars at the time, observing this Pontiac, \'51 Pontiac. * * *"

"I maintained surveillance on the Pontiac through binoculars for approximately three minutes, about five minutes — I am a little hazy on exactly the time I was watching it, but eventually I saw the defendant, dressed in a brown suit and a panama hat, in company of another man, whom I knew — who we had arrested maybe three weeks prior to this time — a man by the name of Kemp Wallis, and then a third party whom I didn\'t know, and a little boy. I saw them come around the corner, evidently came from east on 43rd, made a right turn there, walked south on Forrestville Avenue to the side of the Pontiac in question. They stood out in front of the Pontiac for a minute or two. They they sic all got in the car. As soon as they got in the car the driver, who was defendant Farris Walker, backed into the alley, made a U-turn, and was facing south. He backed into the alley, made a turn and proceeded north on Forrestville to the corner of 43rd and Forrestville. He made a left turn and went west on 43rd. * * *"

"* * * I was observing the defendant, inasmuch as he answered the description that I had received over the telephone.

"* * * As I said, I was observing the defendant; he had a white panama hat and chocolate brown suit, and his description tallied with the description I had previously received."

"By the Witness: A. Yes, I did have information. The information I had was that defendant would be with Kemp Wallis.

"Mr. Turner: I will object to that.

"The Court: He has answered the question.

"By the witness: A. Who I knew from a previous arrest.

"By Mr. Makar: Q. And did you know anything concerning Kemp Wallis? A. Yes, I knew that I had arrested him.

"Mr. Turner: Your Honor, I am objecting. They are not pertinent to the motion to suppress.

"By the Witness: A. I knew Kemp Wallis due to the fact that I had executed a search warrant at 223 Forrestville a few weeks prior to this time and he was in the apartment when we raided this place.

"By Mr. Makar: Q. Did you know as to the relationship that Kemp Wallis had with this particular defendant? A. Yes, I did. Defendant, I believe, was the ex-husband of a certain Marie Walker. Marie Walker is the sister of Kemp Wallis. Marie Walker is known to our office. We have files on her; the police have files on her. Kemp Wallis we did not have a file on. But as I said he was arrested in Marie Walker\'s apartment a few weeks prior to the arrest of the defendant."

Continuing his direct testimony, Agent Spillane described how he and Agent Adams followed defendant's car and that at 43rd and South Parkway Spillane pulled abreast of Walker's car; Agent Adams informed Walker that he (Adams) and Spillane were federal narcotic agents. Agent Spillane then stated: "I came out of my car, went over to his car, and asked him if his name was Farris Walker. He said it was. I told him he was under arrest * * *." After that, according to Spillane, he put Walker up against the car with his hands on top of the roof, and

"I made a search for weapons, which is part of our routine, and in searching the defendant, in his right suit coat pocket I found a Phillip Morris cigarette package containing a glassine envelope with a white powder inside it. In his left suit coat pocket I found a cellophane cigarette wrapper containing nine small pieces of notebook paper, which paper contained a white powder. I asked defendant what the stuff was. He said in substance — he said to me, `You know what it is. It is stuff. You got me good.\'"

Cross-examination of Spillane by defense counsel contains this exchange:

"Q. You didn\'t hear this man\'s voice on the telephone, or any other man\'s voice on the telephone, did you? A. Only the informer\'s voice.

"Q. Only the informer\'s voice. Now then, you had no record, there is no record in your department of Farris Walker being a violator of narcotic laws. There was not at the time you received this call from the informer? A. Not in our department.

"Q. Not in your department. That is what I am asking you, in your department. So that at the time you went out on the South Side of Chicago you had no knowledge, you knew nothing about Farris Walker, did you? A. I knew his description.

"Q. Of your own knowledge? Wait a minute. You see I am just asking you a plain question. Maybe I will come back and let you say what you want to say. You had no knowledge of your own about Farris Walker, did you? A. I don\'t know him.

"Q. You didn\'t know him, did you? A. No."

Obviously we must first decide³ if this arrest of Walker without a warrant was valid in order to determine the legality of the search clearly incidental to that apprehension. No array of authorities is necessary for supporting the familiar rule that lawful arrest is an indispensable condition precedent to a closely allied search and seizure.⁴

Several important aspects of the problem now under review were subjected to judicial scrutiny in United States v. Jeffers, 1951, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, where Mr. Justice Clark, writing for the majority, stated:

"The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures * * *. Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. Only where incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, or in `exceptional

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