United States v. Wysocki, 71-1663.

• Decision Date: 10 April 1972
• Docket Number: No. 71-1663.,71-1663.
• Citation: 457 F.2d 1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chester WYSOCKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

457 F.2d 1155 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Chester WYSOCKI, Defendant-Appellant.

No. 71-1663.

United States Court of Appeals, Fifth Circuit.

April 10, 1972.

Harvey Swickle, Miami Beach, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Richard A. Hauser, George A. Kokus, Asst. U. S. Attys., Miami, Fla., by Charles O. Farrar, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before TUTTLE, GEWIN and DYER, Circuit Judges.

GEWIN, Circuit Judge:

This is an appeal from an adjudication of guilt in a non-jury trial. The appellant was indicted under two counts. Count one of the indictment charged the appellant with passing stolen money orders knowing the same to have been taken from a bank in violation of 18 U.S.C. § 2113(c). Count two charged him with transportation of stolen securities in interstate commerce in violation of 18 U.S.C. § 2314. He contends that the evidence used against him should have been suppressed. We find his claims to be without merit and affirm.

FACTS

In April, 1970 a bank in Detroit was robbed of $70,000 in American Express money orders. Shortly thereafter agent McNamara of the FBI received information that certain of these money orders had been cashed at a bank in Hollywood, Florida. McNamara interviewed the bank teller who had cashed the money orders and learned that the man who had presented them identified himself as Lou Allen and that he was probably staying at the Castaways Motel. Agent McNamara, accompanied by Agent Flynn, proceeded to the Castaways Motel and were informed by the credit manager that Lou Allen and an unidentified man were registered there and would be checking out the following day. McNamara then placed a telephone call to the Detroit FBI office for further information. He was given a description of Chester Wysocki, appellant herein, and was advised that appellant had previously been convicted of armed bank robbery and that he was made out (by the FBI) as a "principal" in the Detroit robbery which was the subject of agent McNamara's investigation. Moreover, McNamara was informed that Barney Wysocki, appellant's brother, had been arrested in Las Vegas in possession of nearly half the stolen money orders.

Agents Flynn and McNamara then proceeded to Lou Allen's motel room where through the open door they recognized appellant from the description supplied by the Detroit office.¹ After knocking on the door the agents identified themselves and asked appellant his name. Appellant told them, and the agents immediately placed him under arrest, although they did not have a warrant.

Appellant was ordered to sit in a chair placed in the middle of the room. The motel room was estimated by the officers to be 10 to 12 feet wide and possibly 14 to 16 feet in depth. Wysocki was sitting in the middle of the room within approximately six feet of the closet. The officers did not conduct a search of the room, they only searched the immediate area where they found Wysocki. The closet door was open. The agent was asked by Wysocki to go to the closet to get some clothes. When he did so, the agent saw a maroon colored box half covered with a Sears, Roebuck paper bag. He picked up the box and stated to Wysocki "Here's your gun." The agent testified that he knew Wysocki's record, knew he had been convicted of armed robbery and had been cautioned about possible danger when and if Wysocki was apprehended. He testified that he was looking for a gun at the time of the arrest in the room, and upon seeing the box concluded that "it was a gun box."² Believing that the box contained a gun, McNamara opened it and discovered therein a batch of the stolen money orders, some bearing the name "Lou Allen." Appellant was taken downtown and booked; some eight thousand dollars in cash, which appellant had with him at the time of his arrest, was impounded.

The following day agent McNamara procured a warrant to search Lou Allen's motel room. This search turned up more of the stolen money orders.

On these facts appellant was indicted and charged with violations of 18 U.S.C. § 2113(c) and 18 U.S.C. § 2314. Thereafter he filed a Motion to Suppress and a Motion for the return of Seized Property, which motions were denied by the trial court. Appellant then stated that he wished to preserve his right to appeal from the court's ruling on the motions, but offered to stipulate to the truth of the allegations contained in count one of the indictment which charged him with passing money orders knowing they had been stolen from a bank. In exchange the government agreed if the court found appellant guilty on count one to dismiss count two which charged him with transportation of stolen securities in interstate commerce. One of the arresting FBI agents testified as to Wysocki's involvement with the stolen money orders. Wysocki renewed his motion to suppress. The court denied his motion, adjudged him guilty on count one and sentenced him to nine years imprisonment to run concurrently with a Michigan state sentence, from which judgment he now appeals. Count II of the indictment charging transportation of stolen securities in interstate commerce in violation of 18 U.S.C. § 2314 was dismissed on motion of the government.

ISSUES

Appellant here alleges three basic constitutional infirmities in the procedures which led to his conviction:

(1) That his warrantless arrest was not based upon probable cause;

(2) That even if the arrest were valid, the search and seizure of the box in the closet was unreasonable; and

(3) That the search warrant procured on the day following appellant\'s arrest was not supported by probable cause and further that it was procured on the basis of evidence illegally seized at the time of appellant\'s arrest.

Thus, it is argued, all of the stolen money orders introduced as evidence against appellant should have been suppressed.

We consider each of these contentions separately hereafter in the same order as specified by the appellant.

PROBABLE CAUSE FOR ARREST

In deciding whether vel non there was probable cause for arrest we first consider Brinegar v. United States, 338 U.S. 160 at 175, 69 S.Ct. 1302, 93 L.Ed. 1870, wherein the court carefully delineated the standard to be applied. As in Brinegar, we deal in this case with probabilities not technicalities; the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. As repeatedly stated in Brinegar and other cases, "`the substance of all the definitions' of probable cause `is a reasonable ground for belief of guilt.'" In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the principles of Brinegar were reaffirmed. There the Court succinctly stated that the question to be decided is "Whether prudent men in the shoes of these officers would have seen enough to permit them to believe that petitioner was violating or had violated the law." 361 U.S. at 102, 80 S.Ct. at 171. These fundamental concepts have been affirmed time and time again. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971) cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971); United States v. Brookins, 434 F.2d 41 (5th Cir. 1970) cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811; Klingler v. United States, 409 F.2d 299 (8th Cir.) cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969).

We must apply these principles to the record facts and decide whether the officers in the instant case, as prudent men, saw and knew enough reasonably to believe that Wysocki was violating or had violated the law. At the time of arrest, the record discloses that the arresting officers knew the following undisputed facts: (1) a branch bank in or near Detroit, Michigan had been robbed recently of $70,000 in money orders; (2) Lou Allen was implicated in and connected with that robbery; (3) Allen was passing money orders taken from the robbed bank when he was observed in Hollywood, Florida; (4) Allen was registered at the Castaways Motel, and according to the clerk had pre-determined to depart the next day, he gave a Michigan address and he was driving an automobile with a Michigan license plate, the state in which the robbed bank is located; (5) Wysocki's brother, Barney Wysocki, was definitely involved in the robbery of the Michigan Bank; and he was in possession of approximately one-half of the stolen money orders at the time of his arrest in another state; (6) Chester Wysocki had a record as an armed robber; (7) an accurate description of Chester Wysocki which had been furnished by the FBI office in Detroit; (8) another person, though not registered, was occupying the room with Lou Allen; that occupant turned out to be Chester Wysocki, a fact the officers ascertained before arrest; (9) the Detroit FBI office had reason to "believe" that Chester Wysocki was the person occupying the room with Allen; (10) the FBI office in Detroit had advised that Chester Wysocki was "made as the principal" in the Detroit bank robbery.

When the officers approached Lou Allen's room in the motel at 5 o'clock in the afternoon, the door was partially open. Inside the room using the telephone was a person who fit the description of Chester Wysocki. The officers knocked on the door, gained the attention of the occupant, identified themselves, recognized Wysocki by the description furnished and asked him his name. He immediately responded that he was Chester Wysocki. In these circumstances the officers made the arrest.

In our judgment not only did the officers, as prudent men, have probable cause to arrest Wysocki, they would have been negligent and derelict in the performance of their duties if they had failed to arrest him. It would be a rather singular circumstance for Wysocki, solely because of friendship, accident, or an unplanned incident to be in the room of Lou Allen...