Appellants were convicted on a four count indictment charging them with burglary of and larceny from post offices located at Bradley and Wayside, Georgia. 18 U.S.C.A. §§ 2115 and 1708. They contend that the District Court erred in refusing to suppress certain evidence obtained by state officers after arresting them and searching the car in which they were riding. They also urge that the evidence was insufficient to sustain the convictions, and that the court improperly refused a requested charge on circumstantial evidence. Appellant Cris-well separately contends that he was prejudiced by the charge on flight, while it is Nicholson’s position that an incriminating statement made by him to a postal inspector was inadmissible because of the delay in taking him before an United States Commissioner pursuant to Rule 5(a), F.R.Crim.P. We affirm.
Appellants, along with Elvin Criswell and Billy Hindman, were seen by two city police officers in an automobile traveling very slowly, described as creeping, along a street in Milledgeville, Georgia at approximately 2:45 A.M. on June 2, 1964. These officers had previously seen them driving slowly on the opposite side of town at 1:30 A.M. on the same morning. Milledgeville is a small town with very little traffic after midnight. When the officers saw the car the second time, they followed it for eight or nine blocks. The testimony was that the car weaved once or twice toward the center of the street, and that one or more of the occupants of the ear kept looking back at the police car. The man in the right front seat appeared to be hiding something under the seat or taking something from under the seat. The car bore a Gwinnett County, Georgia license and the officers knew that three policemen had been murdered in that county a month or so earlier.
*82 The officers signaled for the car to stop; and the driver, appellant Criswell, immediately got out of the car and.approached the police car which was only a few feet away. One of the officers inspected his driver’s license and determined that Criswell had not been drinking. Criswell stated that they were en route from Macon to Atlanta, became lost, and were in Milledgeville for gas. This seemingly conflicted with the fact that they had been seen in Milledgeville earlier, and also Milledgeville was some forty miles off the route from Macon to Atlanta.
One of the police officers then flashed his light into the car occupied by appellants while standing beside' it for the purpose of discovering weapons or whis-ky which might be visible. He saw something on the rear floor of the car covered by a white sheet, and a pinch bar or crowbar' laying on the right front floor board. Criswell stated that the object covered by the sheet was a radio. The officer walked around to the right front side of the automobile to look at the pinch bar and asked the occupant of the right front seat, Elvin Criswell, to step out of the car. He saw that the pinch bar-, had - been moved and asked Elvin Criswell where'it was. Elvin answered, “What pinch bar ?”, and denied the presence of a pinch bar. The police officer then leaned down and flashed his light under- the seat. He then saw the pinch bar, and also saw that the object covered by the sheet did not appear to be a radio but resembled a check writing or money order machine. He thereupon told the four occupants of the automobile that they were under arrest.
At this point, Nicholson, who was sitting in the right rear seat, was asked to step out of the car and the officer started to remove the sheet from over the object in the rear seat. It turned out to be a post office money order writing machine. As he did so Elvin and Richard Criswell fled the scene only to be arrested later. An immediate search of the car disclosed post office rubber dating and cancelling stamps, letters, money orders and money order blanks. The officers at the time of the arrest and search knew of no particular crime that had been committed nor did they obtain an arrest or search warrant. They suspected that appellants and their companions had committed burglary in Milledgeville. They learned at about 8:00 A.M. on the same morning that the post offices at Wayside and Bradley had been burglarized during the night.
The District Court overruled a motion to suppress all of the evidence discovered by the police officers, in the automobile, including the pinch bar and money order machine, on the ground that the search contravened the Fourth and Fifth Amendments. Whether this was error turns on the facts surrounding the arrest and search and these facts must be related to three questions. First, when did the arrest take place; second, was the arrest legal under the circumstances; and third, was the search reasonable within the contemplation of the Fourth Amendment as being 'incident to the arrest. This was the general approach of the Supreme Court in Beck v. State of Ohio,. 1964,
“There are limits to the permissible scope of a warrantless search incident to a lawful arrest, but we proceed on the premise that, if the arrest itself was lawful, those limits were not exceeded here. * * * The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner’s arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the *83 petitioner had committed or was committing an offense. Brinegar v. United States,338 U.S. 160 , 175-176 [69 S.Ct. 1302 , 1310-1311,93 L.Ed. 1879 , 1890] ; Henry v. United States,361 U.S. 98 , 102 [80 S.Ct. 168 , 171,4 L.Ed.2d 134 , 138]. ‘The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ Brinegar v. United States, supra,338 U.S. at 176 [69 S.Ct. at 1311 ,93 L.Ed. at 1891 ].” (379 U.S. at p. 91 ,85 S.Ct. at p. 225 )
The court also adverted to the principle that the reviewing court must evaluate the peculiar facts of each case in determining the validity of an arrest or search:
“When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been committed. Carroll v. United States,267 U.S. 132 , 162 [45 S.Ct. 280 , 288,69 L.Ed. 543 , 555, 39A.L.R. 790]. * * *” (379 U.S. at p. 96 ,85 S.Ct. at p. 228 )
And, as a part of the test, the court inquired as to what objective fact available to the arresting officers would support a belief that the petitioner was engaged in criminal activity at the time he was arrested. What did the officers see, hear, smell or otherwise perceive that would “give them ground for belief that petitioner had acted or was acting unlawfully”?
Another principle involved stems from the fact that the arrest was not made under a federal statute so the validity of the arrest must be determined by the Georgia law of arrest. United States v. Di Re, 1948,
We said in Paige v. Potts, 5 Cir.,
Turning now to the facts, it appears that appellants were stopped under circumstances which did not exceed the routine questioning pointed to as being permissible in Rios v. United States, 1960,
We do not think the restraint, such as it was to this point, amounted to an arrest under the Georgia law. Conoly v. Imperial Tobacco Co., supra:
“ * * An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and will of the person making the arrest. It is sufficient if the arrested person understands that he is in the power of the one arresting and submits in consequence thereof. The taking of another into custody for the purpose of investigating an alleged crime constitutes an arrest. * * *»
See also Georgia Code § 27-201. However, when the officer raised up after seeing the pinch bar and the machine, he placed the four men including appellants under arrest. We conclude that the arrest took place at this moment and before the flight of the Criswells which occurred immediately thereafter when Nicholson left his seat and the officer started to remove the sheet from the machine.
Having determined the time of the arrest, we hold that the surrounding facts and circumstances, already recited, support the conclusion that there was likely to be a failure of justice for want of an officer at 2:45 A.M. to issue an arrest warrant. Appellants were transients moving by motor vehicle and it would have been difficult indeed to have found them later. It would have been extremely unlikely that the evidence which indicated to the officers that a burglary had been committed could have been found at a later time, and after the vehicle moved on. The same facts and circumstances also support a finding of probable cause.
This brings us to the subsequent search and the evidence obtained thereunder. It falls into the same category as the pinch bar and money order machine. It was all admissible as being taken incident to the arrest.
As the Supreme Court noted in Beck v. Ohio, supra, there are limits to the search that may take place incident to an arrest. See dissenting opinion of Justice Frankfurter in United States v. Rabinowitz, 1950,
Henry v. United States, 1959,
Another theory asserted by appellants, is that no warrant could have been issued on the facts available to the officers under the Georgia law, and hence there could be no arrest based on probable cause. They rely on language in Wong Sun v. United States, 1963,
“An affidavit complying with the following form shall, in all cases, be sufficient:
Georgia, ................ County.
“Personally came A. B., who on oath says that, to the best of his knowledge and belief, C. D. did, on the .... day of............... in the year ....... in the county aforesaid, commit the offense of (insert here all information describing offense * * * ) and this deponent makes this affidavit that a warrant may issue for his arrest. A. B. * * *” § 27-104 [1965 Supp.]
See also Dickson v. State, 1879,
With respect to the other errors assigned, we think the charge on flight was proper. Monnette v. United States, 5 Cir., 1962,
With respect to the sufficiency of the evidence, it was stipulated that the post offices were burglarized. The proof showed that the evidence which appellants had possession of and which they sought to have suppressed came from these post offices, that Nicholson purchased the money order at the Wayside post office the afternoon before and that he was riding at the time with three men in the same automobile in which appellants were later arrested. A button from Elvin Criswell’s coat was found in the Bradley post office. Possession of the fruits of the crime shortly after its commission justifies an inference of guilt. Herman v. United States, 5 Cir., 1961,
Affirmed.
Notes
. Georgia Code § 27-207 provides:
“An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.”