Wartson v. United States

Decision Date21 August 1968
Docket NumberNo. 21830.,21830.
Citation400 F.2d 25
PartiesArthur WARTSON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert P. Mandler, (argued), Los Angeles, Cal., for appellant.

George H. Rayborn (argued), Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Wm. Matthew Byrne, Jr., U. S. Atty., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and WEIGEL*, District Judge.

JERTBERG, Circuit Judge:

Following a jury trial, appellant was convicted of the offense of violating 18 U.S.C. § 2113(a).1

On December 7, 1966, at Los Angeles, California, the 110th and Main Street Branch of the Bank of America, a national bank, a member bank of the Federal Reserve System, and a bank whose deposits were insured by the Federal Deposit Insurance Corporation, was robbed of $1,099.00 by a lone bandit. Included in the amount taken was $100 of marked currency. Within a relatively short time appellant was arrested as the perpetrator of the robbery. He was booked and searched at a Los Angeles police station. Fourteen of the marked bills were found on his person.

During the course of the trial appellant moved to suppress the marked currency on the ground that it was the product of an unlawful search. Following hearing on the motion in the absence of the jury, the Court ruled that appellant's arrest was based on probable cause and that the subsequent search of appellant was incident to the lawful arrest. The marked currency was later admitted into evidence over the objection of appellant. The sole issue presented on this appeal is stated in appellant's brief as follows:

"The Court improperly found probable cause as a matter of law. As a result, it improperly admitted evidence that was the fruit of the illegal arrest and search."

The record discloses that the testimony of two witnesses was presented on the hearing of the motion. One was a Mr. Clarke, who was a customer of and in the bank at the time of the robbery. The other was a Mr. Smith, Los Angeles City policeman who made the arrest of appellant.

Prior to the making of the motion to suppress and the hearing thereon, the testimony of a Miss Clark, employed by the bank as a teller and the person from whom the money was taken by the bandit, and the testimony of Mr. Monroe, an employee of the bank who witnessed the robbery, had been received. Mr. Clarke, Miss Clark and Mr. Monroe described the bandit as a tall, young, male Negro. Their description of his clothes was somewhat varied. All identified the appellant as the perpetrator of the crime.

Miss Clark described his clothing to be a light olive green sweater and dark slacks. Mr. Monroe testified that the bandit was wearing dark slacks and a light grey or green sweater.

Mr. Clarke, who was in the bank at the time of the robbery, followed the bandit for several blocks, at times only a few feet behind. He observed the bandit taking off his sweater and described the bandit's slacks as light grey and his shirt as beige or light yellow or tan.

The bandit hailed a taxi and escaped. But as Mr. Clarke was returning to the bank, he saw the same cab that had picked up the robber. The cab driver said that he had taken the man to the corner of San Pedro and 117th. Mr. Clarke then reported this information to the police at the bank.

Officer Smith and his partner were patrolling in the vicinity of San Pedro and 117th when a police radio broadcast informed them that the bank robber had taken a taxi to that corner. Officer Smith testified that the broadcast described the robber as a "* * * male Negro, 22, six feet two inches, 190 pounds, black and brown, medium dark brown complected, bushy hair and athletic build * * *" wearing "green or yellow sweater, a yellow and black shirt, and dark trousers." Later, Officer Smith testified that the broadcast described the shirt as "yellow and green." When Officer Smith arrived at the corner, he spoke to two people. According to Officer Smith, both had seen a man get out of a cab, but one person could remember only that fact. However, the other person, Mr. Dudley Jenkins, remembered more. Officer Smith testified that Mr. Jenkins told him that the taxi passenger was a "* * * male Negro, early twenties, about six feet, about 190 pounds," carrying a sweater or jacket, and had gone "into the green apartment" at 245 East 117th Street. Mr. Jenkins testified that the sweater or jacket was "green-looking". By now, approximately twenty minutes had elapsed since the robbery occurred.

Officer Smith went to the apartment indicated by Mr. Jenkins, knocked at the door, and asked the woman who answered if any male Negroes lived at the residence. The woman, appellant's sister, said yes and described appellant, in Officer Smith's words, as "Male, Negro, six feet, about 200 pounds, medium complexion." Officer Smith asked to speak with appellant, who was taking a bath. Officer Smith went to the bathroom and appellant invited him in. Either at that time or shortly thereafter, Officer Smith drew his pistol. He observed on the floor a pair of green pants. Appellant volunteered that the sweater and shirt he had been wearing that morning were in the bedroom. The shirt was yellow and black, and the sweater was a yellowish green.

Appellant was then taken outside where he was arrested. Mr. Clarke, who had chased the robber, then arrived and identified appellant as the robber.

The lawfulness of the arrest must be determined by reference to state law insofar as it does not violate the United States Constitution. Ker v. State of California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Dagampat v. United States, 352 F.2d 245 (9th Cir. 1965), cert. denied 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1965). Under California law, specifically California Penal Code, Section 836(3), "A peace officer may * * * without a warrant, arrest a person: * * * Whenever he has reasonable cause to believe that the person to be arrested...

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