United States v. Wixom

460 F.2d 206
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 26, 1972
DocketNos. 71-1690, 71-1694, 71-1700, 71-1718
StatusPublished
Cited by14 cases

This text of 460 F.2d 206 (United States v. Wixom) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Wixom, 460 F.2d 206 (8th Cir. 1972).

Opinion

LAY, Circuit Judge.

This appeal follows from our earlier vacation of convictions because of lack of probable cause on the defendants’ arrests and the search incident to those arrests.1 429 F.2d 1327 (8 Cir. 1970). We remanded the case to the district court for an additional hearing on probable cause. We did so rather than ordering a complete new trial since the evidence on the motion to suppress was incomplete, lacking in foundation and the record demonstrated a probability that the government could produce additional testimony.2

The facts produced at the original hearing on the motion to suppress were fully developed in our original opinion. However, for the sake of clarity we shall repeat them here:

“The defendants were arrested in Omaha, Nebraska, on the morning of November 16, 1968, in possession of counterfeit $20 bills totalling approximately $80,000.
“. . . Sometime prior to the arrest, Sgt. Perry of the Omaha Police Department had been told by a fellow police officer, Sgt. Gentleman, that there had been reports of Collins Radio Laboratory checks being passed in the Cedar Rapids, Iowa, area. Collins Radio Laboratory is located in Cedar Rapids. On October 24, 1968, an Omaha photo engraving company had reported to the police that the defendant Wixom, under what was later discovered to be a false identity, had brought to the company a Collins Radio check, and purchased a negative of the check with the amount and the name of the payee taped out. The following day Wixom was observed by Omaha police entering the photo engraving company; he was driven to and from the company by the defendant Coleman, who was known, at the time of the arrest, to be in the printing business. Surveillance of these defendants was reactivated on November 15, presumably because of the passing of Collins Radio checks in the Cedar Rapids area. Coleman was stopped in Omaha that day on the pretext that he was driving a stolen car. It was then observed by a police officer that Coleman had a green substance under his fingernails. He was immediately released and thereafter followed to the Town House Motel, Room 116. At approximately 1:00 o’clock in the afternoon the defendant Turk, known by local police to be a ‘dangerous character,’ arrived in a Buick convertible with an Iowa license [208]*208plate and was observed going into the same room. The registration of this car was traced to Lynn County, Iowa (of which Cedar Rapids is the county seat). The defendants Britton and Wixom were also observed entering Room 116. Britton resembled an individual wanted in Cedar Rapids. The police carried on the surveillance throughout the day and evening. During the day Coleman was observed carrying a light bar and later a machine (which was subsequently identified to be a photocopier) into the room. The evidence showed that later in the evening the officers conducting the surveillance could hear machinery running in the room.
“At 1:30 a. m. on the following morning, November 16, 1968, the four defendants emerged from the motel room carrying attache cases and suitcases to their cars. When they placed the cases in their two vehicles the officers conducting the surveillance became concerned over the defendants’ impending departure. Without warrants the police drew their guns and placed the defendants under arrest. The defendant Turk was brought back to his car and asked what he had put in the trunk, which was still partially open. Turk denied ever having seen a black attache ease within the trunk and volunteered to open it. When he did so, the officers observed that it was filled with counterfeit $20 bills in sheets, six to a sheet. The men were then again informed they were under arrest and taken to the Central Police Station. The government urges that the warrantless arrest and search were justified by the probable cause of the police to believe that the defendants were departing the scene with evidence relating to the printing of counterfeit checks.” 429 F.2d at 1328-1329.

On the original record there existed no showing as to how the informant (Sgt. Gentleman) came by his knowledge that counterfeit Collins cheeks were being passed in the Cedar Rapids area. On this basis this court found there was insufficient evidence of probable cause to justify defendants’ arrests. The requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Ventresea, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), dictate this essential proof. Since our original decision, Whiteley v. United States, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), has clearly demonstrated when probable cause is in issue that information supplied by one police officer to a second arresting officer must be buttressed with some of the underlying circumstances as to how the informant-officer came by this information.

On remand the trial court found that the government had established the reliability of its information. The district court reinstated the convictions. We agree that the additional evidence produced by the government satisfactorily supplements the original proof thereby justifying the warrantless arrest and search.

At the remand hearing the government called Dale Arnett, a detective from the Cedar Rapids Police Department. He testified that Sgt. Gentleman 3 of the Omaha Police Department contacted him by telephone on October 23, 1968, concerning the aforementioned Collins Radio payroll check which had been photocopied by defendant Wixom. On November 4, 1968, Officer Gentleman went to Cedar Rapids where he spent the day going through the police department’s file on the Collins case, visiting local businesses where the counterfeit checks had been cashed and a bank where they had been processed.

A bank officer, James Corell, testified that in October and November 1968, some thirty-six counterfeit Collins checks had been detected. An official from Collins Radio also testified that he [209]*209had reported to the Cedar Rapids Police Department that a number of counterfeit checks had been passed between November 1 and November 7, 1968.

We find these underlying circumstances establish that Sgt. Gentleman’s knowledge and, thereby, the' knowledge of the Omaha Police Department was sufficiently detailed and accurate to establish probable cause that a felony had been committed. The array of facts as noted in our previous opinion, that Wixom had obtained a photograph of a Collins check in a suspicious manner using a false identity, that his associate, Coleman, was a known printer, that on the day of the arrests, another associate and known police character, Turk, drove a car with Cedar Rapids area license plates, that these defendants were seen taking machinery into the motel room and that the machinery was heard operating late at night, together with those facts produced at the supplementary hearing reasonably served to justify the conclusion that defendants were probably involved in producing and issuing counterfeit checks.4 The fact that the police had not yet obtained arrest warrants at 1:30 a. m. does not defeat the probable cause for the arrest which otherwise existed. These arrests took place outside the motel room.

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Bluebook (online)
460 F.2d 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wixom-ca8-1972.