United States v. Thurlester Wilson

479 F.2d 936, 1973 U.S. App. LEXIS 9798
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 23, 1973
Docket71-1764
StatusPublished
Cited by56 cases

This text of 479 F.2d 936 (United States v. Thurlester Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Thurlester Wilson, 479 F.2d 936, 1973 U.S. App. LEXIS 9798 (7th Cir. 1973).

Opinions

PELL, Circuit Judge.

Thurlester Wilson appeals from his conviction for violating 26 U.S.C. §§ 5861(d), 5871, possession of an unregistered firearm. The principal issue raised in this appeal is “whether the sawed-off shotgun which was the basis for the indictment and which was found by police officers during a search for which a warrant had been procured, was tainted by previous police action and conduct which uncovered evidence forming the probable cause basis for the issuance of the search warrant.” 1 A panel of this court reversed the conviction by a 2 to 1 vote, holding that the police officer did not have probable cause to make the initial arrest of Wilson. 465 F.2d 1290. On rehearing, we have reached the conclusion that the police did have sufficient probable cause to stop Wilson, and we, therefore, affirm the conviction.

On January 21, 1971, Wilson stopped at a service station near Effingham, Illinois, on Interstate Highway 57. While there he charged a purchase of less than $25.00 to an American Express card issued to William Kotinas. Because the purchase was less than $25.00, no authorization was needed from American Express. He then asked to charge purchases amounting to approximately $100.00. A woman cashier called “American Express to get verification from the number.” However, Wilson asked to speak to the American Express people and after a short conversation indicated to the cashier that he no longer wished to make the purchases. When the assistant station manager, Robert Mayhaus, was informed of this he in turn called American Express via a Texaco company number and was informed that the credit card Wilson had sought to use was listed as stolen.

Mayhaus then called the highway patrol and informed them “that a man had made a purchase of gasoline at our station and had used a credit card, and that we didn’t check on it, you know, because it was for an amount under twenty-five dollars; and then he attempted to make purchases in the store for over twenty-five; and we called; and at this time I was informed that it was a stolen card.” A police bulletin was issued: “a red Ford Torino, 1970, with license plates HC [8196] . . . one colored male, had in his possession an American Express credit card which was stolen; and he had asked the direction to St. Louis; and it was passed at the Roadway Truck Stop in Effingham, Illinois, where he had purchased gas.” Wilson was stopped by three officers. He was “patted-down” by Trooper James Williams, who, during the course thereof, reached in Wilson’s pocket and withdrew the American Express card. Subsequently, another officer, on the basis of the fact that Wilson had in his possession a stolen credit card, applied to a state court judge for a warrant to search Wilson’s automobile for other credit cards and papers which might have been stolen from Kotinas. The search warrant was issued. During the course of the search of the car the sawed-off shotgun was found.2

Prior to trial, Wilson moved to quash the search warrant and suppress the evidence deriving from the warrant. Several of the grounds advanced to support the motion are not relevant here. However, one of the grounds was that “[t]he issuing Judge incorrectly found probable cause for the issuance of the warrant in the affidavit(s).” This, of course, is not the same as alleging that [939]*939the police did not have probable cause to stop Wilson initially. The two contentions are, nonetheless, interrelated since what Wilson was apparently attempting to show was that the fact alleged in Trooper Weems’ complaint for a search warrant was based purely on the radio bulletin and that in turn was based only on the call from Mayhaus. Thus, we are led back to the question of whether Mayhaus’ call standing alone constituted probable cause to believe that Wilson had a stolen credit card in his possession. It is unfortunate that Wilson’s motion was not clear on this point. Because of the lack of specificity in Wilson’s challenge in the pre-trial hearing, the Government did not question May-haus closely as to the total content of the call to the police. Indeed, when the Government attempted at the suppression hearing to develop specific information from Mayhaus which would have reflected upon the basis of his information that the card was stolen, the effort was thwarted by the sustaining of Wilson’s objections that the evidence was hearsay. The testimony of Trooper Williams indicates that Mayhaus conveyed far more information to the state police than the answers he gave in the pretrial hearing would reflect. Because Wilson did not clearly raise in the trial court the ground which he now claims requires reversal of his conviction, we hold that he is not in a position to challenge any reasonable inferences from or any claimed lack of greater specificity in Mayhaus’ testimony.

The warrantless search of Wilson at the time of his arrest, during which search the credit card was found, was valid only if it was a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Even if such a “pat-down” could have been justified by fear that one who allegedly tried to use a stolen credit card might be armed, Trooper Williams’ reaching into Wilson’s pockets and extracting the credit card went beyond the permissible scope of a non-arrest “pat-down” for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The fact that the arrest was made pursuant to a police bulletin does not add or detract from the necessity of probable cause as an underlying requirement for an arrest. Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971). For this arrest to be valid, the officer who caused the radio bulletin to be issued must have had sufficient information to establish probable cause to believe that the person driving the specified car had committed a crime.3 Further, if the police had probable cause, the facts of this case — particularly that the appellant was driving away from the scene of the alleged crime — provide sufficient exigent circumstances to relieve the police of the requirement of obtaining a search or arrest warrant before stopping him. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

The test for determining whether probable cause exists for the issuance of a search warrant, being the same standard applicable to a warrantless arrest,4 is set out in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964): “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that [940]*940the informant . . .

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Bluebook (online)
479 F.2d 936, 1973 U.S. App. LEXIS 9798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thurlester-wilson-ca7-1973.