United States v. Wixom

• Decision Date: 26 May 1972
• Docket Number: 71-1694,No. 71-1690,71-1700,71-1718.,71-1690
• Citation: 460 F.2d 206
• Parties: UNITED STATES of America, Appellee, v. Roswell William WIXOM, Appellant. UNITED STATES of America, Appellee, v. Robert Douglas BRITTON, Appellant. UNITED STATES of America, Appellee, v. George Leo COLEMAN, Appellant. UNITED STATES of America, Appellee, v. William Donald TURK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

460 F.2d 206 (1972)

UNITED STATES of America, Appellee, v. Roswell William WIXOM, Appellant.

UNITED STATES of America, Appellee, v. Robert Douglas BRITTON, Appellant.

UNITED STATES of America, Appellee, v. George Leo COLEMAN, Appellant.

UNITED STATES of America, Appellee, v. William Donald TURK, Appellant.

Nos. 71-1690, 71-1694, 71-1700, 71-1718.

United States Court of Appeals, Eighth Circuit.

Submitted May 10, 1972.

Decided May 26, 1972.

David S. Lathrop, Omaha, Neb., for appellants.

William K. Schaphorst, U. S. Atty., Omaha, Neb., for appellee.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

This appeal follows from our earlier vacation of convictions because of lack of probable cause on the defendants' arrests and the search incident to those arrests.¹ 429 F.2d 1327 (8 Cir. 1970). We remanded the case to the district court for an additional hearing on probable cause. We did so rather than ordering a complete new trial since the evidence on the motion to suppress was incomplete, lacking in foundation and the record demonstrated a probability that the government could produce additional testimony.²

The facts produced at the original hearing on the motion to suppress were fully developed in our original opinion. However, for the sake of clarity we shall repeat them here:

"The defendants were arrested in Omaha, Nebraska, on the morning of November 16, 1968, in possession of counterfeit $20 bills totalling approximately $80,000.

. . . . . .

". . . Sometime prior to the arrest, Sgt. Perry of the Omaha Police Department had been told by a fellow police officer, Sgt. Gentleman, that there had been reports of Collins Radio Laboratory checks being passed in the Cedar Rapids, Iowa, area. Collins Radio Laboratory is located in Cedar Rapids. On October 24, 1968, an Omaha photo engraving company had reported to the police that the defendant Wixom, under what was later discovered to be a false identity, had brought to the company a Collins Radio check, and purchased a negative of the check with the amount and the name of the payee taped out. The following day Wixom was observed by Omaha police entering the photo engraving company; he was driven to and from the company by the defendant Coleman, who was known, at the time of the arrest, to be in the printing business. Surveillance of these defendants was reactivated on November 15, presumably because of the passing of Collins Radio checks in the Cedar Rapids area. Coleman was stopped in Omaha that day on the pretext that he was driving a stolen car. It was then observed by a police officer that Coleman had a green substance under his fingernails. He was immediately released and thereafter followed to the Town House Motel, Room 116. At approximately 1:00 o\'clock in the afternoon the defendant Turk, known by local police to be a `dangerous character,\' arrived in a Buick convertible with an Iowa license plate and was observed going into the same room. The registration of this car was traced to Lynn County, Iowa (of which Cedar Rapids is the county seat). The defendants Britton and Wixom were also observed entering Room 116. Britton resembled an individual wanted in Cedar Rapids. The police carried on the surveillance throughout the day and evening. During the day Coleman was observed carrying a light bar and later a machine (which was subsequently identified to be a photocopier) into the room. The evidence showed that later in the evening the officers conducting the surveillance could hear machinery running in the room.

"At 1:30 a. m. on the following morning, November 16, 1968, the four defendants emerged from the motel room carrying attache cases and suitcases to their cars. When they placed the cases in their two vehicles the officers conducting the surveillance became concerned over the defendants\' impending departure. Without warrants the police drew their guns and placed the defendants under arrest. The defendant Turk was brought back to his car and asked what he had put in the trunk, which was still partially open. Turk denied ever having seen a black attache case within the trunk and volunteered to open it. When he did so, the officers observed that it was filled with counterfeit $20 bills in sheets, six to a sheet. The men were then again informed they were under arrest and taken to the Central Police Station. The government urges that the warrantless arrest and search were justified by the probable cause of the police to believe that the defendants were departing the scene with evidence relating to the printing of counterfeit checks." 429 F.2d at 1328-1329.

On the original record there existed no showing as to how the informant (Sgt. Gentleman) came by his knowledge that counterfeit Collins checks were being passed in the Cedar Rapids area. On this basis this court found there was insufficient evidence of probable cause to justify defendants' arrests. The requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), dictate this essential proof. Since our original decision, Whiteley v. United States, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), has clearly demonstrated when probable cause is in issue that information supplied by one police officer to a second arresting officer must be buttressed with some of the underlying circumstances as to how the informant-officer came by this information.

On remand the trial court found that the government had established the reliability of its information. The district court reinstated the convictions. We agree that the additional evidence produced by the government satisfactorily supplements the original proof thereby justifying the warrantless arrest and search.

At the remand...