United States v. Williams

• Decision Date: 28 October 1969
• Docket Number: No. 26460.,26460.
• Citation: 416 F.2d 4
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leslie Edward WILLIAMS, Joseph Anthony Butera and Salvadore Joseph Ferino, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 4 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Leslie Edward WILLIAMS, Joseph Anthony Butera and Salvadore Joseph Ferino, Defendants-Appellants.

No. 26460.

United States Court of Appeals Fifth Circuit.

September 17, 1969.

Rehearing Denied October 28, 1969.

Billy J. Jordan, Columbus, Miss., for Williams.

Joseph Anthony Butera, pro se.

Arthur Parker, Birmingham, Ala., for Butera.

H. Ralph Bolen, Birmingham, Ala., Houston & Chamberlin, D. W. Houston, Jr., Claude A. Chamberlin, Aberdeen, Miss., for Ferino.

H. M. Ray, U. S. Atty., J. Murray Akers, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before WISDOM and MORGAN, Circuit Judges, and DAVIS,^* Judge of the U. S. Court of Claims.

DAVIS, Judge:

During the night of July 29-30, 1967, the federally-insured Bank of Mississippi at Mantachie, Mississippi, in rural Itawamba County, was broken into, and about $14,000 taken. Appellants were arrested later on July 30th, not at the scene of the crime but elsewhere in Itawamba County. They were indicted and convicted in the Northern District of Mississippi, in a joint jury trial, of aiding and abetting each other to enter the bank with intent to commit larceny, in violation of 18 U.S.C. §§ 2 and 2113(a). No confession was introduced and no issue is raised as to the sufficiency of the evidence or the instructions. The main questions center on the validity of the arrests and the searches made. We shall discuss the points seriatim.

I

The arrest of Ferino and the seizure of articles in his automobile

Ferino was arrested about 3:30 A.M.-3:45 A.M. on July 30th, near Mantachie. At that time, Deputy Sheriff Hendricks, Deputy Sheriff Buse, and State Patrolman Holcomb, investigating a report that youngsters were exploding fireworks on a householder's property, had set up a roadblock on the highway at which some cars were stopped. While the other two officers were away following a car which had sped from the roadblock, Hendricks noticed an unknown lone individual walking across the highway toward a parked car with Alabama tags. Hendricks started toward this individual and, as the latter began to back the car out, called on him to stop; when the driver continued, Hendricks pulled out his revolver, ran alongside, ordering him to stop, which he did. In answer to queries, the driver (Ferino) said he had no driver's license or identification. Hendricks then formally placed him under arrest and had him remain in the car (since Hendricks, alone, was guarding three cars and several people) for some time until the other officers returned. Then, Ferino, again on inquiry, was unable to produce a driver's license or car registration. He was asked to step out of the car, and by shining a flashlight into the car the officers saw two billfolds inside; these were retrieved and turned out to have identifications of the other appellants, Williams and Butera. The three officers at the roadblock did not know, during this time, that the bank had been burglarized.

Ferino's warrantless arrest is challenged on the basis that Deputy Sheriff Hendricks had no authority, and also for lack of probable cause. Hendricks was never formally appointed in writing (as Mississippi law required), but he had been employed by the sheriff, had signed an oath of office, and had acted for a long time as a deputy in uniform, without challenge. Under Mississippi law he was at least a de facto peace officer (Mississippi Code, 1942 Ann., Sec. 4045; Miller v. Batson, 160 Miss. 642, 134 So. 567 (1931)) and had the right to arrest for motor vehicle violations and to demand driver's licenses (Mississippi Code, 1942 Ann., Sec. 8108).

The prosecution treats Ferino as having been arrested by Hendricks after the former had been unable to produce a license or identification. An arrest at that time certainly had a basis of probable cause that he was driving without proper credentials.¹ Moreover, it is most probable that Hendricks, as he testified, did not start to move toward Ferino with the purpose of arresting him, but simply to have him identify himself in connection with the fireworks-exploding which had been going on — a reasonable request at that time of night and in those circumstances. Accordingly, it cannot be said that the arrest "began" when Hendricks first moved toward Ferino (and before it was known that the latter could not identify himself). See Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961).

It would seem, however, that the detention first occurred when Hendricks drew his revolver, which was after Hendricks approached Ferino but before the latter was asked to produce license or identification. We believe that this stoppage-by-revolver was, in the circumstances, a reasonable "seizure" to prevent Ferino's escaping by car (cf. Terry v. Ohio, 392 U.S. 1, 20 ff., 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), a temporary "seizure" which did not have to be justified by "probable cause" to believe that a particular crime had been committed. Cf. Allen v. United States, 129 U.S.App. D.C. 61, 390 F.2d 476, 479 (1968). As indicated above, it was prudent and reasonable for Hendricks to seek identification from the unknown person on that rural highway at the time, and when this individual failed to stop in response to two calls, but instead began to drive away, Hendricks had no choice but either to let the man go or to exert the force of a display of his firearm.² Disorder had been reported in the neighborhood; a roadblock had been established to help investigation of this disorder; it was the dead of night; the scene was a rural highway near a small Mississippi town; the car the unknown man was driving away had out-of-state tags; it was possible that this person was connected with the disorder but he had refused to heed two calls to halt — giving rise to reasonable suspicion that something was amiss; as a de facto deputy sheriff, Hendricks had the right to inspect drivers' licenses and demand identification. In these circumstances, the officer could validly decide to detain the driver momentarily, for identification purposes, rather than to let him drive away. That was a reasonable police practice for that time, that place, and those circumstances. By the same token, the conditions were such that the invasion of Ferino's privacy and the disruption of his legitimate activity was very minor.

The initial detention being lawful, it was then lawful for Hendricks to inquire as to the driver's license and identification. On the latter's failure to respond adequately, there was, as we have said, probable cause to arrest for unauthorized driving. The arrest was valid.

As for Butera's and Williams's billfolds, they were seen from without the car by use of a flashlight, after Ferino's arrest. Being in open view from the outside, they could be validly taken without a warrant. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069-1070 (1968). Since Ferino had twice said that he had no identification or license, a billfold — in which one ordinarily keeps both identification and a driver's permit — would obviously be significant. Moreover, under Mississippi law an officer can search a car after the lawful arrest of the driver for a traffic violation (Watts v. State, 196 So.2d 79 (Miss.1967)), and Warden v. Hayden, 387 U.S. 294, 87A S.Ct. 1642, 18 L.Ed.2d 782 (1967), allows seizure of evidential material as well as the fruits or instrumentalities of a crime.

II

The arrest of Butera and Williams

After Ferino's arrest, it was discovered in the early morning of July 30th that the bank had been entered. Coming from nearby Fulton to help in the investigation, Patrolman Knight (of that police department) met two strangers walking on the highway away from Mantachie, wet up to their knees. On inquiry, they said they had spent the night at the sister of one of them in Mantachie (but gave no names) and that they were going home (without naming a place); they asked the name of the next town and U. S. highway. Knight offered them a ride to Fulton (after first going to Mantachie); they preferred to be picked up on his way back to Fulton. In Mantachie, Knight reported the encounter to State Patrolman Holcomb and an FBI agent. These three returned to the highway where Knight had seen the two and saw them further down the road reaching for the handle of the door of a car parked in front of a house. On the officer's approach, the two men ran into the woods, leaving the car door open. Holcomb broadcast a description of the men over his car radio, and later that day Butera and Williams, answering that description, were arrested by other officers, without a warrant, in a remote area of the county, not too far from the woods the two men had earlier entered.

A search of Butera at this arrest produced $315 in ones, fives, tens, and twenties. At the trial, three of the fives were traced directly, by expert testimony, to five-dollar bills from the bank's vault, and there was also less direct testimony connecting the other small bills to the bank. A tear gas pen was found on Williams.

Appellants insist that there was no probable cause for the warrantless arrest of Butera and Williams, but we disagree. By the time of this arrest, the facts known to the officers concerned with searching for the two strangers first seen by officer Knight (information which was communicated either directly or impliedly to the officers who actually made the seizure) included: (a) the burglary of the bank, indicating that more than one person was probably involved;³ (b) the arrest of Ferino, an out-of-stater, and its surrounding circumstances, including the two billfolds with their separate identifications of two out-of-state men other than Ferino; (c) the statements by the two men to Knight, their appearance when he first met them, and their...