United States v. Alphonse Johnson

630 States, sanctions, (1962); question Carroll v. United of what 614] The 394, open. 1332, imposed any, 354 S.Ct. 1 L.Ed. [77 remains U.S. if should be (1957). Only opportunity 2d limited 1442] still Defendants contempt proceeding class cases where denial of immedi to find them of impossible obey ate review would render to the order of court for failure protective application order review whatsoever of individu for a in an interrogato exceptions al’s claims have we allowed

to that answers to show principle. U. to this . .” 402 violate their . in fact tend to ries will 530, 1580, 1582, 532-533, rights S. 91 under S.Ct. Fifth Amendment 29 85. v. L.Ed.2d out Hoffman United standards set 479, 814, States, L. 95 U.S. S.Ct. proceeding in the case be- While the Ed. 1118 distinguishable in- is that it fore us Ryan, than criminal a civil case rather v. volves States U.S. United case, reasoning Ryan 1580, 530, believe the we applies our cited an order de- and the cases therein held that the Court appeals subpoena present Interlocutory nying quash situation. motion place will appealable cases an undue civil burden not a final order. Court delay the dis- the courts and ultimate on states: litigation. position Borden Co. respondent’s think that assertion “We (3rd 1969), pre- Sylk, F.2d misapprehends our the thrust of cases. for the dismissal a sound basis sents course, complies he with the Of if sub- appeal present for case our poena be able he will thereafter jurisdiction by lack want finality reason of he ex- undo substantial effort has appealed from. order compli- comply. But erted in order appeal dismissed for want is open ance not the to re- is course jurisdiction. claims, spondent. If, as he sub- unduly poena or other- burdensome unlawful, may refuse com- wise litigate questions

ply those pro- contempt

event that ceedings or similar brought him. are rejected be Should his contentions court, the trial will

that time ripe appellate then review. consistently

But held we have necessity expedition in the admin- America, STATES UNITED justifies law istration of the criminal Appellee, putting one who to resist seeks production desired information to a al., Alphonse et Defendants- JOHNSON compliance choice between with a trial Appellants. produce prior order court’s 72-1308, 882, 893, Dockets 887 and Nos. order, review of that and resistance to 72-1309 and 72-1449. possi- that order with the concomitant Appeals, adjudication States bility contempt Court Second Circuit. rejected appeal. are on his claims 29, Argued States, supra 1972. June Cobbledick v. United 323, 540, U.S. S.Ct. L.Ed. [309 11, Aug. Decided 783]; Alexander v. United 686] S.Ct. 50 L.Ed. [26 Blue, cf. United States 16 L.Ed.2d [86 S.Ct. (1966); DiBella v. United 510] 7 L.Ed.2d [82 Farrell, Wallingford, Conn., E. Gerald Alphonse Johnson. Haven, Whitney, New Conn.

James C. Whitney, (Sosnoff, Cooper New Ha- & Higley. ven, Conn.), appellant Rufus Haven, Conn., Mirto, Robert West C. David White. Maxwell, Jr., Thomas Asst. U. S. F. (Stewart Haven, Atty., H. New Conn. Jones, Atty., Conn., Ha- S. D. New U. ven, Conn.), appellee. MOORE, SMITH and TIM- Before BERS, Judges. Circuit Judge. MOORE, Circuit Alphonse Johnson, Higley Rufus appeal judgments David White jury conviction entered after a trial Appellants the District of Connecticut. charged having with con- each having spired to rob a and with bank robbed a bank violation of 18 U.S.C. 2113(a), (b),(d); and with §§ having possessed unregistered fire- arm violation 26 U.S.C. §§ trial, At after Govern- rested, conspiracy ment count and charging Alphonse the count Johnson unregistered possession with of an fire- arm were withdrawn. Before the case jury, was submitted the count charging possession Rufus unregistered firearm was dis- jury returned verdicts of missed. remaining guilty on the counts. appeals, appellants In their have asked alleged us to consider a total of six they trial court errors which claim re- quire judg- respective of their reversals Alphonse ments conviction. that his confession to an F.B.I. claims Agent suppressed should have been be- cause was the result of an unneces- sary delay presenting him before a magistrate. Alternatively, he contends adequately that he was not warned of rights. Lastly, he his asserts that he presence entitled an attor- pre-trial photographic ney identifi- at a Higley claims that cation. Rufus admitting items trial court erred residence, a warrant at his met evidence seized without Detective Buffalo and other officers the front residence at the time of his arrest. door. Higley and David White Both Rufus patrol Detective Buffalo had been in a challenge admissibility of a suitcase searching car for the armed robbers near the back and its found contents report when he there received shortly apartment after door house request for was a an ambulance at 162 in one of the was arrested David White report Ashmun It was this Street. apartments. also claims David White convergence police offi- caused failing to court erred in that the trial Higley’s address, cers at that Rufus res- identity order the disclosure idence. the informant who told where guns drawn, the entered With officers could found. As answers suitcase Hig- the residence and discovered Rufus analysis to these rest on an contentions suffering lying ley on the floor kitchen presented at the trial of the evidence shotgun leg. wound his An- from a suppression hearing, a some- Bordeaux, male, other Chester was black exposition what detailed of this evidence standing placed near him. Both were required. under arrest. shotgun, among Knowing that a other I. robbery, weapons, used in the had been approximately. At 1:20 P.M. on March robbery suspect already was that one stocking black males with three weapons yet wounded, had as caps over their heads entered the Dix- and that there were at been discovered well Branch of the New Plaza Haven robbers, three Detective Buffalo least Savings weapons, Bank. Two carried guns officers, with their and four other including shotgun, a sawed-off and or- proceeded upstairs drawn, search present dered those not to move. The searching the first While bedrooms. approximately $4,300 third removed opened bedroom, Buffalo Detective including from the teller’s drawers protruding “grip” closet noticed a and money (currency “bait” which can be bag lying on the clos- from was traced). easily exited, As three Mr. “grip” appeared to be et As shelf. Spence, manager, the bank set off an might part of to one that similar notify alarm to the New Haven Police bag opened. The weapon, was Department. proved “grip” of a to be the blue handle addition, of wood response alarm, In a block police hacksaw. offi- shotgun in the was promptly appeared cers a sawed-off the bank. bag bag. were They questioned the contents of employees After the bank and examined, Buffalo noticed Detective discovered that moments before the rob- closet which bery coat three cashmere black males entered the black bank wearing Higley According on numer- quickly and he had seen to those left. pockets questioned, He ous occasions. searched those three robbed bank. shotgun police shell. and found a The of the coat were therefore able to obtain clothing descriptions other articles of the robbers. min- No Within having Then, police them- pa- satisfied foot and in searched. utes, officers on searching bedroom was se- this first trol cars were for the selves that cure, robbers proceeded surrounding in the officers search streets bank. upstairs and bathroom. bedroom another yard bank, In a school near the Detec- Nothing suspicious in these was found Granger, company tive in the of other rooms. police officers, discovered a trail of Higley foot, Subsequently, and Bordeaux they blood. On followed the trail house; Higley Street, to a 162 Ashmun taken from a residence locat- were police 1,350 head- approximately hospital ed Bordeaux feet from the and headquarters, police Bor- approached quarters. At the officers bank. As Agent Lyons orally transfer, warned possible to his questioned as was deaux rights and robbery. his constitutional Johnson of Dur- bank in the involvement ing presented him with a Waiver po- then Rights interview this the course signed. Then, which he Form rob- after the moments lice learned P.M., (whom Johnson and 3:18 between 2:18 Higley observed bery Bordeaux Agent Lyons and interviewed leaning As well) over a fence. he knew Throughout again these confessed. Higley, he noticed he approached Bordeaux generally co- proceedings, Johnson leg with blood. Higley’s covered gave he operative indication that him the back assisted then Bordeaux questioning. At to terminate wished left. Higley residence door of the approximately later, 3:55 P.M. he returning Upon a few minutes magistrate presented in New- leaving and White observed Johnson Higley ark, Jersey. New together. en- When residence him asked house, tered the following day infor- a reliable arrived call an ambulance. police of Da- mant notified the Paterson ambu- for the arrival waited approxi- At whereabouts. vid White’s mately information, the this lance. Armed police was arrested 9:45 A.M. White that Bordeaux concluded apartment at Houten Street 221a Van probably involved taken to in Paterson. He was investigation focus should their questioned toas station where he was locating upon Johnson White. robbery. possible his During involvement interview, the informant ap- days later, on March 31 at Several again telephoned to advise the A.M., ar- proximately Johnson was 9:00 belonging to Paterson, that two suitcases White in rested on a federal warrant building found outside the at could be Jersey, by Pat- detectives from the New arrest, the rear 221a Houten near Upon Van Street Department. Police erson charges against door. The informant also advised the the he was advised of police that suitcase contained a shot- one of his him rights.1 warned constitutional and Knowing building gun. lo- later, that the was the Minutes at Paterson high and crime area rights cated in a transient Station, Police he read these same possibly the visi- and that suitcases were poster stated aloud from a on a wall and passers-by, police, the without a ble to of them. that he understood each one building the and dis- inventory warrant, rushed to possessions Then an of his Upon immediate During covered the suitcases. of in- was course made. the examination, to found one suitcase was currency ventory removed Johnson shotgun. pockets proved part his to of be contain a loaded sawed-off thereafter, money. Shortly the “bait” custody, suspects the three in With participa- orally Johnson admitted his police proceeded the with their investi- robbery. tion in the bank They gation robbery. of bank dis- arrest, Boomer, After David Johnson’s F.B.I. was covered that Sanders shotguns step-father, notified warrant had been exe- owned two White’s P.M., pistol items, cuted. 12:00 and these Between 1:00 and a and that ad- Agents F.B.I. arrived handled were Paterson dition to blue hacksaw appropriate Police The Station. removed from his home the course of forms completed According burglary placed were and on March Johnson was 1971. Agents. Boomer, step-son to knew the ex- After the his of lawyer, 1. be He was warned: one will afford to have right you represent you silent, appointed be- “You have the to remain to you anything you say any questioning wish.” can and will fore against you (Trial 311) Transcript, p. used a court law. You rights, right lawyer vir- have a talk warned of his to a and Each time he was language present you you tually used. have him was while identical you being questioned. are If cannot Upon weapons. them that other evidence should not examina- istence jury. by records, considered It pertinent been Government tion of registered to these now turn. shotguns claims that we found to be police also discovered David White. days prior II. two Higley, had been and White primary contention Johnson’s meeting Lastly, at the residence. Agent is that his confession F.B.I. White, compa- learned Lyons product “unneces

ny Johnson, several substantial made sary delay” being presented before days purchases few after clothes a magistrate hence, should have been robbery. disagree; delay, suppressed. We McNabb-Mallory by whether measured course, due above evidence was e,2 urges do, us or presented jury. It is clear that rul by prescribed justified returning in Title II amply standards jury of the guilty. Appellants, Omnibus Control and Crime Safe verdicts individu- 3501,3 Streets Act of ally jointly, infor- U.S.C. § claim that certain permissible. improperly mation withheld from 5(a) requires whether or not such ad- 2. defendant was Rule F.R.Cr.P. required making vised or knew that he was not officer an arrest under a “[a]n any to make statement and that . warrant . . shall take the arrested unnecessary person delay such statement could be used him, (4) not such whether or defend- nearest available commissioner. ” prior question- ant had been advised . . . Evidence secured violation ing right of his to the assistance of coun- of this Rule is inadmissible a federal sel; (5) proceeding. whether or such defend- criminal McNabb ant was without the assistance coun- L. questioned giving Mallory (1943) ; sel when and when Ed. 819 v. United such confession. presence absence L.Ed.2d 1479 above-mentioned factors be taken judge provides: need into consideration § 18 U.S.C. any prosecution (a) not be' on the issue of conclusive volun- In criminal by by tariness of the confession. brought the United States or the by (c) any prosecution In Columbia, criminal confession, District of by hereof, the United Columbia, the District of (e) States defined in subsection shall given made or a confession in if it admissible evidence is volun- by therein, person tarily given. who is a defendant Before such confession is person evidence, judge shall, arrest or while such was under received in trial the any presence jury, of other detention out of the deter- law-enforce- law-enforcement officer or mine issue as to voluntariness. If agency, judge ment solely shall not be inadmissible the trial determines the con- delay bringing voluntarily in such because of fession was made shall be magistrate persons judge or other in before admitted evidence and the trial persons empowered jury permit officer to commit shall the to hear relevant charged the with offenses laws evidence on the of voluntariness issue jury give of the United or of the District and weight of States shall instruct the such by jury if is found such confession to the confession as the feels Columbia judge have been made volun- the trial tarily it deserves under all the circumstances. given weight (b) judge determining to be and if the The trial in the jury the is left issue of voluntariness confession shall take into con- given made or sideration all such confession circumstances sur- by person rounding giving confession, im- hours within six in- such mediately following cluding (1) elapsing his arrest or other the time between Provided, arraignment lim- the time arrest and That of the defendant detention: making confession, shall in this subsection if it itation contained was made delay arraignment, apply which the after arrest before case mag- person (2) bringing such whether defendant knew the such such beyond such six- he was istrate or other officer nature the offense which judge by charged suspected period the trial hour is found or which he was considering making confession, (3) the means the time of be reasonable 636 dy. by processing respect routine to the cases cited As this is una With voidable, McNabb-Mallory spent the time cannot be con which Similarly unques unnecessary. additional sidered rule is delineated those pass disclosed, tionable are the minutes which research has even cases light assuming applicability Fi ed while ate his breakfast. their nally, by authority Johnson was interviewed state we find 18 U.S.C. § police delay hour min holding here at “un officers for 1 and 40 issue by

necessary.” indicate, 1 hour. utes federal officers for As these cases During been these interviews the authorities determination of whether there has “unnecessary delay” presenting obtained essential information on John pedigree magistrate suspect volun son’s and Johnson twice before a does tarily solely upon As confessed.5 the confession was rest calculation given elapse first to the state authorities short and minutes which between hours arraignment. began ly after that interview and was an arrest and the each similarly repeated agents, cases, question these the focal is not the federal passed interviewing spent how much much particularizing time was time but how the time Thus, g., See, States v. the confession. used. e. United assuming (2d 1971), even that we consider Marrero, 450 F.2d must Cir. denied, period custody in cert. of state determin 405 U.S. S.Ct. ing Wright, “unnecessary (1972); see, whether there C. Procedure, delay”, see, Coppola, Federal Practice and 74 at United States § analysis (2d per 1960), An of the use of F.2d 340 Cir. aff’d curiam, time in the instant 6 L. ease establishes delay.” “unnecessary Ed.2d there was United States Chadwick, (10th 415 F.2d 167 Cir. police Johnson was arrested state 1969), spent interviewing the time John approximately By officers at 9:00 A.M. giving son cannot be considered as rise day arraignment 3:55 P.M. the same McNabb-Mallory to a violation of the proceedings begun. already During had Collins, rule. States intervening minutes, 6 hours and 55 (2d 1972), re F.2d hearing Cir. order spent travelling 45 minutes were curiam, per banc vacated place of arrest station 1972); (2d Marrero, su F.2d 801 magis- and from the station to the pra. period It follows that no of the de questioned trate. As Johnson was not “unnecessary tention constituted an de during span time, it is evident lay” meaning the rule. within unnecessary.4 it cannot be termed An additional 2 hours and 45 minutes A similar conclusion is reached spent processing, through application routine of the now control- “booking” procedures ling and the transfer in standards set out 18 U.S.C. § 3501(c) ruling Johnson from prohibits state to federal custo- 3501.6 Section transportation 3501(c). See, and the distance to be § 4. U.S.C. IS traveled to the nearest available such his confes- not claim that 5. does Johnson magistrate or other officer. coercion, either the result of sion was (d) Nothing contained this section psychological, physical that it was or or shall bar the admission evidence of involuntary. way any See 18 U.S. other any given confession made or voluntar- 3501(b). §C. ily by any person any person other question interrogation sec- of whether anyone, 6. The difficult or at any person Mi- to overrule time at tion 3501 was intended which the who made gave Arizona, or such confession randa was not under v. or whether arrest or L.Ed.2d 694 detention. other was, (e) section, is if it be constitutional As used in this term would express any presently and we before us “confession” means confession guilt possible any opinion any answers. to the no as criminal or offense self-

incriminating given statement made or orally writing. or in right solely warned “must be that he because has a a confession inadmissible any bringing suspect silent, delay to remain that statement may magistrate made he does make used if the confession was be as evidence against him, plus right ad such and that he of arrest has a within six hours presence attorney, period reason to the is found to be either ditional transpor considering appointed.” retained or means of U.S. at able 86 S.Ct. to be at 1612. and the distance traveled tation magistrate. To de the nearest available making case, prior In the instant his limits have been whether these termine police officers, confession to the state exceeded, period to is be calculated Johnson twice warned of each one person under the time “while such rights; of these first officer told custody in the arrest other detention rights him of these and then Johnson any or law- law-enforcement officer poster po them aloud read agency. enforcement ...” that lice station and stated he under Con question is doubt whether during each one. At no time stood gress feder intended both state and that questioning immediately which followed custody calcula al be included did Johnson desire to ter indicate Chadwick, supra; See, Coppola, tion. interrogation. See, Collins, minate the supra. only If federal to be is supra; 473-474, Miranda, supra at S. considered, that it is evident Johnson’s prior repeat Subsequently, Ct. properly under confession was admitted ing agents, his confession to the federal statute. need this section of the We again warned of each Johnson twice not, question. however, As reach this rights; agent one' of these first an oral suming cus that state federal both ly explained to him he them and then considered, tody must the fact that signed prior form. As waiver delay limits there was a in excess of the interview, time inti no was there 3501(c) not nec set out section does questioning mation that wished the he require essarily suppression of a confes circumstances, Under these we cease. during delay. sion obtained Such a adequately find among delay is one factor at least rights. warned his Miranda 3501(b) con five stated in section to be Vanterpool, United States 394 F.2d determining sidered whether the con (2d 1968). Cir. voluntary ad fession was and therefore final contention 3501(b); Johnson’s Mar missible. 18 U.S.C. § presence Halbert, rero, supra; was entitled States v. United attorney pre-trial photographic ; Wright, at a (9th 1970) 436 F.2d 1226 authority is cited supra, identification. As As there at 89. § argu support position and no of his question as to the of John voluntariness why we should are advanced as ments 3501(b), son’s confession under section position re has been reconsider properly the confession was admitted. before, see, many g., jected e. times Bennett, claims he was Johnson next 409 F.2d 888 States adequately Haywood constitu Cir.), denied, warned his (2d cert. Unit rights confessing. prior He as tional ed to warn serts that the authorities failed ex United States L.Ed.2d 101 right question Dept. him of “his to break off of Correctional rel. Johnson v. ing during interroga (2d 956, Services, at the time 461 F.2d 959-960 11). (Johnson’s p. The Brief, tion.” 1972), dis can be the contention being claim is without merit. merit. missed as Turning Higley’s Arizona, first to Rufus U.S. Under v. Miranda argued contention, the items 436, 1602, is that 86 S.Ct. L.Ed.2d hacksaw, (the apartment suspect in can at his seized a part shotgun shell, of a his coat and questioned he the be Hayden shotgun), product suspect] the of that only the [the were was sawed-off present police of the Fourth man that in and the violation a search weapons that of is the fact had control all which could Conceded Amendment. apart- against right to police enter used them or effect an a to the had the escape.” 298-299, go for upstairs to search at S.Ct. to ment and might suspects be at 1646. other armed large. right the the is conceded Also It is the evident both facts any weapons while police found to seize Warden, Penitentiary Hayden Md. v. claimed, searching suspects. It is for Higley’s conten- and its rationale refute permissi- however, scope of this the Warden, case, In tion. the instant the offi- exceeded when was ble search Hayden, Penitentiary police Md. v. opened and examined door a closet cers upstairs properly in an were bedroom bag on a shelf and of a the contents searching weapons other for and armed disagree. pockets of a coat. We suspects. part search, open- As this ing Higley’s is not door in the room was contention a closet to answer virtually Penitentiary only required to reasonable but Warden, found in Hayden, Md. safety Upon insure the the officers. 387 U.S. noticing “grip” appeared (1967). police, to be There the what a L.Ed.2d 782 weapon, police properly pursuit” officer ex- least one armed a in suspect, of at “hot bag they “grip” had amined from which the where entered a house hiding. Similarly protruding. he reasonable reason to believe through house, Spreading some of the coat which search out suspect weapons suspect for in an known arrested to wear officers shotgun upstairs Meanwhile, offi- once shell was one and its seizure a bedroom. shotgun pistol pocket. and To have acted cer a a found a not discovered upstairs “gravely a flush tank this would bathroom manner have endan- jacket ger oth- found trousers lives or the lives of another their [ed] fleeing properly type the ad- man to was said ers.” All the items were washing worn in a machine mitted. clip addition, cellar. ammuni- argument remaining Higley’s is pistol cap tion for the found belonging White, and a suitcase suspect’s under the mattress and ammu- contents, the rear found at its apartment shotgun nition in a found building shortly White after suspect’s bureau in the In hold- room. apartments one of was arrested ing all these admissi- items evidence in evi not have been admitted should ble, the Court stated that the against also ad dence him.7 White reasonably “acted when entered unper argument. We are this vances began the house and search suaded. description they man of the had been given 9:45 A.M. after weapons and for he arrested at had White was reliability informant, not might used whose use an challenged, police where them. The Fourth Amend- advised re- require police ment After White was does officers be found. could station, infor- delay investiga- course moved po- again notify telephoned gravely tion ger do so would endan- mant belonging to their or the lives lice that two suitcases lives of others. Speed essential, door the rear here was found near White could be building. thorough infor- per- apartment search of the weapons house for of the suitcas- sons and one could have insured also stated that mant S.Ct. Because we find this contention to be without merit Jones Unit- we need 93 L.Ed. 153 determine Iligley standing whether has raise ed appeal. issue on McDonald consideration, shotgun. apart- Upon the due we find As that a es contained opening suitcases, police the the in a tran- were to be located ment known was acting po- high not in violation of the Fourth area and sient and crime “exigencies Amendment. The of the sit- were the suitcases knew that lice also probably imperative.” police uation made that passers-by, of- course to visible warrant, McDonald v. United ficers, rushed to the a 451, 456, 191, 193, building. 69 S.Ct. 93 L.Ed. apartment were The suitcases (1948). holding The officers were a exactly informant where the said found they they probable suitcase which ap- had cause As officers be. would to contained a suitcases, they believe contraband proached that knew shotgun. sawed-off There was a sub- probably shot- one gun. contained a sawed-off gun possibility stantial knowledge loaded. was was based not This they high As stood in that transient and upon of the infor- the statements area, safety crime safety mant, their own upon and the fact that sawed-off but required they of others shotgun know used in was dangerous they holding whether implicated, were it had which White was weapon they over yet had no not one of the been located and that control. Cf., Williams, 143, suffering Adams v. robbery suspects 407 U.S. was 1921, (1972). knowledge, S.Ct. 32 L.Ed.2d gunshot Un- wound. With circumstances, der these opened we cannot hold the officers the suitcases police shotgun. required carry were to discovered loaded sawed-off unopened, police suitcase, question sta- is whether the actions tion to police obtain a warrant or that an offi- were violation cer should have stood near held the Fourth Amendment. unopened suitcase as a warrant was ob- concluding difficulty We find little tained. The were entitled to justified that the officers were in seiz holding know what were in their ing the closed It suitcases. possession. containing The suitcase practical to secure warrant because shotgun properly and its contents were the suitcases could been removed have admitted.8 position apart from their outside A final contention building advanced ment moment. by White is that it error not or suitcases this situation similar der identity See, disclosure of mobile automobiles. Carroll informant 132, who advised the where 280, According his (1925). suitcase could be found. L.Ed. 543 It there White, supplied likely opportunity fore since informant that the to seize probable the core or passed main would bulk cause suitcases if the search, officers the warrantless had waited to disclosure secure a warrant. See, mandatory. disagree. Maroney, We 42, Chambers v. 399 U.S. 51, 1975, 90 S.Ct. 26 L.Ed.2d 419 It should first be noted the mo- difficulty ques Of more is the tion for disclosure made until tion opened properly of whether the officers day trial, the third after the motion seizing the suitcases after them. suppress the contents of the suitcase 8. Since we find the seizure and search of Mehciz, United States v. 437 F.2d justified the suitcase on the (9th above ex- Cir.), denied, cert. 402 U.S. plained rationales we need not determine 91 S.Ct. general applied what standard is to be compare with United States v. Col the search and seizure of suitcases. bert, (5th 1972), 454 F.2d 801 Cir. Coolidge Hampshire, v. New which, according to the Government’s 461 n. 29 L.Ed.2d Brief, p. 18 n. the Fifth Circuit has on (1971) compare Chambers, its own motion en decided re-consider supra; also, May- see United States v. banc. nard, (9th 1971) 439 F.2d 1086

640 SMITH, Judge While the been J. JOSEPH had denied. Circuit right request (concurring certainly dissenting part disclo had hearing, part): suppression Roviaro sure at the 53, States, United 353 77 S.Ct. v. I concur in the affirmaneé of the con- 623, (1957); v. 1 L.Ed.2d 639 Scher Higley viction of Johnson and and dis- 251, 59 S.Ct. United sent from the affirmance of the convic- 174, (1938), right L.Ed. 151 does this tion of White. The evidence as throughout necessarily exist contents the suitcase should have course of the United States trial. v. suppressed prod- been as to White 333, Cir.), Volkell, (2d 251 F.2d illegal uct of an search. There was no denied, 962, 1000, 356 U.S. cert. overwhelming proof such as to White on Bennett, supra, 2 L.Ed.2d 1068 any count aside from the fruits Here, 409 F.2d at 901. where the ac say beyond search that we can a reason- cused facts was aware all relevant played part able doubt that the fruits no suppress at the time the motion to in his conviction. heard, 41(e) per would have F.R.Cr.P. Extending the Carroll motor vehicle mitted motion to a denial disclose objects doctrine to suitcases or similar insofar as disclosure was relevant to the justified, especially where, is not inas probable issue of cause. case, difficulty there was no in ei any event, judge properly posting In trial ther a watch over the suitcase or transporting ruled that White was entitled to dis- it less than three blocks on showing closure the merits. Disclosure is re- station until a quired accuracy probable when the of the inform- cause could be made before a magistrate. in “ Coolidge er’s information the in- Hamp doubt and See v. New shire, 443, formation or was the ‘essence core or 403 U.S. 91 S.Ct. 29 L. brought grant main bulk’ of the evidence forth Ed.2d 564 I would a new trial to proba- White. which would otherwise establish Tucker, ble cause.” United States While and Johnson had no (2d 1967); F.2d Cir. United standing 41(e), object, Fed.R.Crim.P. Comissiong, (2d States 429 F.2d 834 Bozza, States v. F.2d 1970). Here, 1966) reliability (2d Cir. 222-223 see and Mancusi Cir. DeForte, (White’s p. 392 U.S. 88 S.Ct. Brief, informer is conceded. (1968), affirming 20 L.Ed.2d 1154 Unit- 18). addition, ques- White does not Mancusi, ed States ex DeForte v. rel. probable tion the fact had (2d 1967); F.2d Combs v. Apparent- cause to conduct search. United 2284, ly, justification request- the sole for the and as to ed disclosure was the desire learn the any light case of his identity of the informant who knew confessions error in admission where the suitcase could be found and might harmless, well search was though what even inwas White, pos- directed whose recent way robbery. involved in the bank Un- session the suitcase had been. He had circumstances, der these the motion was standing objection to raise the properly denied.9 exigent required circumstances invasion rights judgments by of his search determi- conviction are af- firmed. probable impartial nation of cause any way White also contends that the informant’s involved the bank identity provide should have been disclosed be- informa- that he could defense, cause it was vital to his defense. the con- tion relevant Roviaro, stipra. As there were no facts frivolous and merits no fur- tention is indicating the informant ther discussion. importance, possession inculpatory only magistrate, statements not on independent count, White Such ev- counts. himself. also on but guilt, my opinion, idence of White’s no merit claim There is beyond demonstrates doubt reasonable appeared suitcases abandonment. of the of the admission contents sometime after the rear door outside White, all, if suitcase error at arrest, not could so that White White’s was harmless. put there. There was himself have them proof likelihood that he had and no anyone do so. And else to authorized is relied inference abandonment identity

on, in- disclosure of who alone shown formant, suitcases, knowledge should police tip have been revealed. suitcase, shotgun in the there BYERS, Plaintiff-Appellant, Clark long the ease was So as a bomb. danger there MIDDLE TENNESSEE MEM ELECTRIC shotgun. Amendment The Fourth CORPORATION, BERSHIP Defendant- ignored by indiscriminate should Appellee. in so- even searches without warrant No. 72-1100. “high crime” areas. called Appeals, States Court Sixth Circuit. TIMBERS, (concur- Judge Circuit Sept. ring) : agree judgment I affirming

Court the convictions of all

appellants counts, I on all concur respects majority opinion in the able

all Judge Moore. Judge

Since Smith’s dissent is ad- dressed to the conviction of White ground

on the contents that the suppressed should suitcase have been illegal product

to White as the

search, following I wish add brief issue, on

observation my complete addition majority concurrence

opinion’s treatment of that issue.

Assuming arguendo that the contents improperly of the suitcase were admit- against White,

ted as I am convinced admission of such evidence was

harmless the other view of substan- implicating evidence

tial White. For ex- ample, testimony there Jacqueline and Alethea as to pre-robbery meetings; testimony

Bordeaux that he saw White John- together Higley’s apartment son im-

mediately robbery; after the “bait Johnson;

money” weapons found on Higley’s and, apartment; of critical

Case Details

Case Name: United States v. Alphonse Johnson

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 11, 1972

Citation: 467 F.2d 630

Docket Number: 882, 887 and 893, Dockets 72-1308, 72-1309 and 72-1449

Court Abbreviation: 2d Cir.