United States v. Edward Dunn, A/K/A James Pardue

594 F.2d 1367
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 20, 1979
Docket77-1771
StatusPublished
Cited by12 cases

This text of 594 F.2d 1367 (United States v. Edward Dunn, A/K/A James Pardue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Edward Dunn, A/K/A James Pardue, 594 F.2d 1367 (10th Cir. 1979).

Opinions

WILLIAM E. DOYLE, Circuit Judge.

In this criminal case Count I of the indictment charged that on or about September 7, 1976, defendant unlawfully and knowingly by force and violence, and by intimidation, attempted to take from the person or presence of another, property or money, in the care, custody, control, management, or possession of the First West-land National Bank, Lakewood, Colorado. Count II charged that on the same date, the defendant attempted to take from the person or presence of another, property or money, or a thing of value, in the care, custody, control, management, or possession of the First Westland National Bank, Lakewood, Colorado, the deposits of which were insured by the Federal Deposit Insurance Corporation. Further, the indictment charged that the appellant did assault and put in jeopardy the life of a person by the use of a dangerous weapon or device, in violation of 18 U.S.C. § 2113(d).

The evidence was that on September 7, 1976, two persons, one carrying a large briefcase, the other a suitcase, entered the First Westland National Bank in Lakewood, [1369]*1369Colorado, and one of them identified himself as a Colorado Department of Revenue agent. They asked to speak to the president of the bank, Roger Reisher. They advised Mr. Reisher that the bank owed the State of Colorado a large sum of money and demanded it. Reisher observed a gun and what he identified as a police scanner in the briefcase of one of the men. Reisher fled and the two men followed him. As they ran, a gun discharged and there was evidence that the bullet struck one of the briefcases being carried by one of the men.

On September 29, 1976, the local officers and agents of the FBI arrested the defendant-appellant and one George Chatfield, a/k/a Wayne Epperly, in the belief that Chatfield was a person who was wanted for bank robbery elsewhere. The officers were of this opinion because of statements attributed to Chatfield or Epperly and made in the presence of other persons who reported it to the local police; also, as a result of an identification of photographs by the landlady of Chatfield or Epperly.

At the time that Chatfield and Dunn were arrested, the agents observed a brochure from the First Westland National Bank and a police scanner in the car in which the two were located. Dunn also had on his person a handgun. Epperly apparently consented to a search of his apartment which contained items such as guns, wigs, makeup kits and Colorado Department of Revenue identification. Later the officers went to the home of Marlene Scott with whom the defendant-appellant was living and searched her residence. There they found a large briefcase and a suitcase which they were told belonged to the defendant-appellant herein. Thereafter, on September 30, the agents obtained a search warrant which was directed to a search of the briefcase and the suitcase. The warrant was specific in describing the suitcase and the briefcase. Many of the contents of the briefcase were received in evidence.

Before trial, a motion for determination of mental competency was filed. The court designated Dr. Miller to conduct it. On motion of the government for further examination, Dr. Frederick A. Lewis, Jr., was appointed, and on December 16, 1976, an order was entered pursuant to 18 U.S.C. § 4244 committing the defendant to the Federal Mental Institution at Springfield, Missouri. Based on reports from these doctors, the court found Dunn competent to stand trial. Subsequently, a trial was held and the jury returned a verdict of guilty on the second count, finding that the defendant had assaulted Reisher and had placed his life in jeopardy.

Neither trial errors nor the sufficiency of the evidence to support the verdict are here urged. The appeal centers on defendant’s contentions, first, that the trial court erred in denying defendant’s motion to quash the search warrant because of insufficient evidence of probable cause, and further, because the search warrant failed to particularly describe the items to be searched and did not describe with particularity the place or premises to be searched. A third ground in the appeal is that the search of Ms. Scott’s house was an illegal, warrantless search in that the consent of Marlene Scott was coerced and obtained through trickery and unauthorized consent to the search and seizure of the briefcase and suitcase. The other point advanced is that the trial court erred in failing to hold a complete evidentiary hearing on the issue of insanity and to enter a specific finding as to defendant’s competency to stand trial.

The search problem developed after the officers had obtained permission from Marlene Scott, a friend of the defendant, to take the briefcase and the suitcase from Ms. Scott’s home. The suitcase and the briefcase were pointed out by Ms. Scott to the agents and these items were taken back to FBI headquarters. Subsequently, a search warrant authorizing the opening and examination of the suitcase and briefcase issued on September 30, 1976.

The affidavit in support of the warrant was signed by FBI Special Agent James E. [1370]*1370Huggins. It stated that on September 7, 1976, he went to the First Westland National Bank, Lakewood, Colorado, and was told that two men had entered the bank on that day and had showed Colorado Department of Revenue identifications as Morrison and Morphis. They were carrying a large briefcase and a suitcase. They showed Mr. Reisher a gun and a police scanner hidden in the cases. Reisher immediately tried to escape, and while he was escaping one of the suspects was observed discharging the gun and striking the large briefcase.

The affidavit continued:

On September 29, 1976, I participated in stopping an automobile driven by WAYNE EPPERLY and accompanied by EDWARD DUNN. In [sic] the floor of the car was a slip of paper from the First Westland National Bank as well as a police scanner. One of the parties was armed with a gun. Both were taken into custody. Special Agent Brian Jovak obtained a consent to search from WAYNE EPPERLY for his apartment. We went to 1393 Jamica [sic], Aurora, Colorado and found three guns, wigs, makeup kits, and a Colorado Department of Revenue identification in the name of Robert L. Morrison, and a plain identification card in the name of John McAphoose. We then proceeded to 1168 Alton, Aurora, where we spoke with Marlene Scott who told us that DUNN was a parttime resident. She pointed out a large briefcase which she said belonged to DUNN. The large briefcase had what appeared to be a bullet hole. Ms. Scott pointed out a suitcase which also belonged to DUNN. We seized both the briefcase and suitcase and they are currently in our custody, unopened, in the FBI office.
******

The first contention is that the search warrant is insufficient for lack of probable cause, and that there is insufficient evidence in support of its authenticity.

The second contention is that the trial court failed to conduct a sufficiently complete hearing on the matter of the competency of the defendant to stand trial.

I.

DO THE FACTS SHOW PROBABLE CAUSE FOR THE ISSUANCE OF THE WARRANT?

The search of the home of Ms. Scott was carried out with her consent.

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United States v. Edward Dunn, A/K/A James Pardue
594 F.2d 1367 (Tenth Circuit, 1979)

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Bluebook (online)
594 F.2d 1367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-edward-dunn-aka-james-pardue-ca10-1979.