United States v. Chester Wysocki

457 F.2d 1155, 1972 U.S. App. LEXIS 10183

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 1972
• Docket: 71-1663
• Status: Published

Opinions

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 Wy-socki 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 as an unregistered, innocent guest many miles away from his home in Michigan at the crucial time when Allen, implicated as he was in the bank robbery, was engaged in the business of disposing of the robber’s loot. Persons engaged in such activity are known to be rather agile and stealthy. They are usually not novices, and they change locations swiftly. Wysocki was experienced in the business of armed robbery. The officers knew in the late afternoon on the day of the arrest that Allen had scheduled his departure the very next day. He had already cashed a number of the stolen money orders. To assume that Allen would publicly disclose the plans he intended to follow and take his departure as announced, especially after Wysocki had seen two men looking into the motel room would be naive, considering the business in which he was then engaged, and the background experience and record of Wy-socki as a convicted armed robber.

It is totally unreasonable to conclude, as suggested by appellant, that the officers should have engaged in some kind of delaying tactics near the close of the day and provide these obvious law violators an opportunity to slip away in the darkness of the night. Once the officers went to the motel room, and surely they had a right and duty to go to Allen’s room, both Wysocki and Allen would have been alerted to the facts. Knowing these facts, there would have been ample opportunity to plan and execute their departure and escape absent an arrest. The exigent circumstances present at the time of arrest, the danger of the loss, removal or destruction of evidence, the nature of the evidence and the character of the criminal activity involved of which the officers had reliable information, all point clearly and unequivocally, to the necessity of taking action without delay. Not only was there probable cause to arrest, the facts impelled swift action.

SEARCH AND SEIZURE

We reject the appellant’s contention that even if the arrest was valid, the money orders taken from the box ought to have been suppressed as the fruits of an unlawful search.

Accepting the agent’s testimony at its face value as the trial court was authorized to do, we come next to the question whether it was lawful for him to seize the box and open it in the circumstances disclosed by the record. In reaching our decision we are confronted with the fact that the agent’s judgment that the box contained a gun proved to be erroneous. But we do not deem that to be the controlling question. We do not decide such questions with hindsight; if we did, the box was subject to seizure because it contained stolen money orders. We must consider the case on the basis of what the officers saw and the reliable information they possessed. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). It is not necessary for the officer to know at the time the evidence is seized that it will finally be adjudged to be competent, admissible evidence. All the component parts of an item of evidence cannot be analyzed, classified and its admissibility ascertained on the spur of the moment by an arresting officer. Exigent circumstances do not permit such careful deliberation. The appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers must be considered. For example, what appears to be a dangerous weapon may turn out to be a harmless toy pistol. The hijacker of an airplane may place a stewardess in total fear by pressing the sharp point of a fountain pen in her back to create the illusion that he is using a dangerous weapon.

In our opinion the presence of a person with a known record as an armed robber within six feet of what appeared to Agent McNamara to be a gun box in a small motel room, the officers having been cautioned of appellant’s dangerous propensities, the agent being where he had a right to be, and believing in accordance with his long experience that the box contained a gun, when considered with all the other facts disclosed by the record would constitute a sufficient basis to conclude that the search was reasonable, and that the seizure of the box was not contrary to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).³ See also United States v. Harris, supra; United States v. Squella-Avendano, supra; United States v. Brookins, supra; Klingler v. United States, supra.

SEARCH WARRANT

In view of our conclusions that the arrest was valid and the search and seizure incident to it was reasonable, it is not necessary to write at length about the search warrant. The search warrant authorized the search of room 462 of the Castaways Motel which was registered in the name of Lou Allen. When the warrant was issued, Agent McNamara who signed the affidavit was well aware of Lou Allen’s unlawful activity and that room 462 formed the base of his unlawful operations. He also knew that Allen was directly implicated in the bank robbery and was disposing of loot gained therefrom. His affidavit was full and complete and recited the factual information which clearly demonstrated the unlawful conduct under consideration. The only possible flaw would be the conclusion that knowledge to support the search warrant was gained by the seizure of the stolen money orders in the motel room if such seizure were held to be unlawful. Since we consider both the arrest and the seizure lawful, it follows that the search warrant is valid. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

The disposition of the money taken by the agents at the time of arrest is left open until proceedings are completed in the trial court relating to the status and ownership of the funds after a full development of all pertinent evidence and a consideration of any adverse claims that may be made to the money.

One further matter bears brief mention. At the conclusion of the testimony offered by Wysocki in support of his motion to suppress, Wysocki’s counsel requested a recess “. . . so we can talk about a possible plea.” Subsequently his counsel stated that he wished to preserve for appellate review the denial of the motion to suppress, but then . . stipulated that the allegations in count one of the indictment are true as alleged.” The stipulation was conditioned upon the government’s dismissal of count two of the indictment. The court then heard testimony from Agent McNamara concerning the offense charged in count one and thereafter adjudged Wysocki guilty of that count.

This comes close to plea bargaining. It seems anomalous that the government would agree to dismiss count two for any other reason. The government thus argues that the stipulation has the legal effect of a waiver of all non-jurisdictional defenses or defects, and should therefore preclude Wysocki from now taking an appeal from the trial court’s denial of his motion to suppress.

Wysocki explicitly conditioned the stipulation on his right to appeal from the denial of his motion to suppress. Without approving this procedure, we are unwilling, in this instance, to foreclose appellate consideration of this matter.

The judgment is affirmed.

1 . Appellant did not fit the description of Lou Allen which had been provided by the bank teller.

2 . The agent testified that his conclusion that the seized box was a “gun box” was based on 30 years experience. The following is from his testimony:

Q. Agent McNamara, I believe you testified that you went with the F.B.I. in 1940; is that correct?

A. That’s correct.

Q. And during your approximately thirty years with the bureau have you had occasion to see gun boxes before?

A. Many times.

Q. When you first saw this box on the shelf above Chester Wysocki’s clothes, what did you think that box contained?

A. I thought it was going to be a Sears and Roebuck gun. I have had many cases with Sears and Roebuck guns in them.

There was no objection to any of the agent’s testimony about the so-called “gun box.”

3 . We are not unmindful of the numerous eases dealing with plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Drew, 451 F.2d 230 (5th Cir. 1971) [No. 71-1220, November 29, 1971] ; United States v. Knight and Grubbs, 451 F.2d 275 (5th Cir. 1971) [1971]; United States v. Davis, 423 F.2d 974 (5th Cir. 1970), cert. denied, 400 U.S. 386, 91 S.Ct. 74, 27 L.Ed.2d 69. We find it unnecessary to deal with the plain view doctrine in the circumstances of this case, although it could conceivably be argued that the plain view doctrine applies in view of the testimony of Agent McNamara based on 30 years experience as a law enforcement officer. Courts exercise a broad sound discretion in passing upon the qualifications of an expert. Wolford v. United States, 401 F.2d 331 (10th Cir. 1968); DeFreese v. United States, 270 F.2d 737 (5th Cir. 1959) cert. denied 362 U.S. 944, 80 S.Ct. 810, 4 L.Ed.2d 772 (1960). Witnesses of proved experience in a trade or business with respect to which opinion evidence is desired are ordinarily considered qualified to testify as to such opinions. Ignacio v. People of Territory of Guam, 413 F.2d 513 (9th Cir. 1969) cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970); Holm v. United States, 325 F.2d 44 (9th Cir. 1963) ; United States v. Toner, 173 F.2d 140 (3d Cir. 1949); C. Wright, 2 Fed.Prac. & Proced. §§ 454-55 (1969); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (officer who saw brick shaped package containing “green leafy substance” in the kitchen of a residence from a distance of several feet testified that he recognized the substance as marijuana); United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971) (officer testified that he saw what appeared to be the butt end of a shotgun partially covered by some papers on the floor behind the front seat of an automobile); United States v. Bourassa, 411 F.2d 69 (10th Cir.) cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969) (secret service agent allowed to testify that coins were counterfeit); United States v. Longfellow, 406 F.2d 415 (4th Cir. 1969) (testimony received that paint on stolen vehicle was similar to paint seized under search warrant); Bryan v. United States, 373 F.2d 403 (5th Cir. 1967) (error to exclude testimony of expert that firearm was a pistol); United States v. Clancy, 285 F.Supp. 98 (S.D. Miss. 1968) (officers permitted to testify as to odor of mash).