United States v. Frank Alexander Simmons

while others WOOD, positions waited in various Circuit Before SWYGERT CAMPBELL, District Senior throughout After Judges, hallway. giving sev- Judge.* aliases, finally eral admitted his true identity opened the door. Almost WOOD, Jr., Circuit HARLINGTON arrested, immediately defendant was hand- Judge. cuffed, and removed from the room. his conviction follow- appeals Defendant court, ruling The district in on defend- charges on of armed jury ing by a trial Suppress ant’s Motion to after evidentia- of 18 in violation U.S.C. robbery bank findings ry hearing, made certain of fact. 2113(d).1 appears It from 2113(a) and § § simultaneously The court found that with hearing the the evidence adduced officers, oth- by defendant’s arrest the two the trial suppress to and motion defendant’s Trotta, er entered police officers, and Grant 9,1976, Savings the Allied February that on room, which was room. hotel That Chicago, located in Association and Loan entirely hallway, almost from the visible $16,000 Illinois, by of about two was robbed small, by ten feet very approximately was carrying masks and hand- wearing men ski feet, space twelve and afforded little robbery, a Immediately after guns. an auto- movement. short Upon entry very the two robbers in into citizen observed bank, from the short distance hallway, mobile a Officers Grant and Trotta ob- the license number related police, called the served a in room standing naked woman gave physical description and of the car about two to three feet from the bed. Offi- number, the Utilizing the license the men. something cer Trotta reached for to cover that the automobile ob- police determined the woman. Officer Grant the same was served near the scene bulge time observed a on the bed which he police Pastore. The registered to Frank bag uncovered and found to containing be a arrested proceeded apartment, to Pastore’s $1,260 in currency. Officer $8,000 him, and approximately recovered purse by Grant also observed a close the bed impli- seized a .38 caliber revolver. Pastore and within reach of emp- the woman. He accomplice cated defendant as tied the onto contents of the bed on the from and based information robbery, and gun subsequently discovered a which to police Pastore the traced defendant proved replica. currency to Both Following the question- the Devon Hotel. and the replica gun by were seized Pastore, ing policemen about ten and officers. No warrant had been issued for agents proceeded FBI to Devon Hotel this search. Upon to find and arrest defendant. deter- being After custody prior taken into mining occupied by which room defend- ant, hotel, to his several officers knocked on door removal from the defendant * bank, union, Campbell, mit in such Honorable William J. credit or in such Judge association, savings States Senior District for the Northern building, and loan or or Illinois, sitting by designation. thereof, used, District of is part any felony affecting so savings such bank or such and loan associa- 2113(a) (d) provide 1. 18 and as fol- §§ U.S.C. any tion and in violation of statute of the lows: States, any larceny— or Whoever, (a) by violence, by force and or $5,000 Shall be fined not more than or intimidation, takes, take, attempts or to from imprisoned twenty years, not more than or any presence prop- another or both. erty any thing or or other of value (d) Whoever, committing, attempt- in or in care, to, control, belonging custody, or in the commit, any offense defined in subsec- of, bank, possession any management, or section, (a) (b) any tions and of this assaults union, any savings credit or and loan associa- person, puts jeopardy any or in the life of tion; or dangerous weapon the use of a or any attempts or Whoever enters enter device, $10,000 shall be fined not more than bank, union, any savings and credit or loan imprisoned twenty-five or not more than association, any building or in or used whole years, or both. bank, union, part as a credit or as a sav- ings association, and loan with to corn- intent Suppression Physical Evidence. of an FBI and I. agent presence stated officers, “I guess this is police several Relying upon Chimel Califor- primarily I were involved in.” robbery that Frank and nia, L.Ed.2d agents response questioning In argues officers, also admitted at defendant' Officer Grant unreasonable $2,300 received from time that he had Amendment that the Fourth Loan De- Savings robbery. Allied suppress erred both the failing court state- incriminating further from currency seized gun traveling while officers ments Chimel, supra, ant’s hotel room. police headquar- car the hotel defined under which a principles Court ters. to an warrantless search incident arrest defendant, although conced- Prior to trial permissible: cause for his probable that there was made, When an it is reasonable arrest is arrest, the items seized suppress moved to to search arresting for the officer the at the hotel as well as statements which n person to remove any in order arrested At sup- he had made after his arrest. might seek to use weapons that the latter both Officer Grant and pression hearing, effect in order arrest or to resist that at Officer Trotta testified the time of Otherwise, escape. safety the officer’s they the search were concerned with their might endangered, well and the arrest be he safety. own Officer Grant stated that addition, itself it is entire- frustrated. gun money, and the searching ly arresting reasonable officer to any also he was not paying stated that any search for evidence on the and seize in real to the woman the room. attention person prevent arrestee’s in order to its in purpose He testified that further And concealment or destruction. searching weapon was avoid the for the might area into arrestee reach which an him. against of its use The dis- possibility in or grab weapon evidentiary order trict found that both officers were court must, course, governed by items of any and for searching weapons for evidence rule. or in a gun like A on a table against them. The court that could be used in who is drawer front of one arrested all considering concluded that the circum- arresting can be as dangerous the fact third offi- stances of the case and that a clothing as one party search of the cer concealed in the of the justifi- bed and was incident to person ample There is arrested. ant’s not constitute cation, arrest and did an unrea- therefore, for a search of the ar- sonable search and seizure under restee’s and the area “within his Fourth Amendment. construing immediate control” — phrase mean the area within With to the statements made respect gain possession which he of a might arrest, defendant after his the district court weapon or evidence. (Supra, destructible agents from the testimony also heard 762-63, 2040.) 89 at S.Ct. present officers when the statements were made. conceded that As Government dangers lurking The existence “potential of to defendant were inad- warnings given in all eliminates ne- custodial arrests” Arizona, equate Miranda v. 384 U.S. cessity probable of cause to believe that the 1602,16 L.Ed.2d 694 S.Ct. weapon arrestee is of a or is possession suppressed court ordered them as to destroy United about evidence. fur- Government’s ease-in-chief. court Chadwick; 1, 14, 97 v. S.Ct. found, however, that ther statements Moreover, 2476, 53 warrant- L.Ed.2d 538. involuntarily not ruled were thus less searches sustained under the have been used for they purposes could be the item searched Chimel rationale where impeachment. close not strictly was in proximity resolved. arrestee. possession

Three issues are to be immediate French, United States v. elude that F.2d the court’s g., findings regarding e. Frick, United States 1977); (5th Cir. purpose the officers’ fear and the cert, denied, 1973), (5th Cir. 490 F.2d 666 search were not clearly erroneous. 55, 42 U.S. Reynolds, States v. 1150, 1156 (7th however, Where, law enforcement Griffin, 1976); Cir. personal property reduced not officers had 1976). F.2d person to their exclusive associated with the question The disposition regarding control, thereby eliminating potential the officers’ safety concern for their does allowing inherent its access to dangers not completely resolve the Fourth Amend- defendant, longer was no inci- ment issue now before The obvious us. fact and, exigent dent to the arrest absent other distinguishing this case from Chimel is that circumstances, warrant was required. the search here was of the area within the Chadwick, supra, immediate control of a third who Berry, 2476; see also arrest, was not placed under not of the 1977).2 F.2d 861 area at that moment within the immediate argu The thrust of defendant’s arrested, control of the defendant who was ment is that the Officer Grant but it had been in the immediate control of any real attention paying that he was not up accomplishment both of the ar- to the woman in the room indicates that he questions rest. New courts have considered any danger might did not fear she of an surrounding a search arrestee’s com- de weapon. testimony, reach for a This panion, even in those cases the searches submits, contrary is to the district only “pat consisted of a down” as approved finding searching that he was court’s Ohio, in Terry v. 1, 1868, 392 U.S. 88 S.Ct. weapons. agree We do not with defendant g., See e. United (1968). 20 L.Ed.2d 889 Grant’s reflects that Officer v. Berryhill, States 1189, 445 F.2d 1192-93 potentially dangerous he did not sense a Poms, (9th United 1971); Cir. States 484 presence. situation due the woman’s A 919, (4th F.2d 1973); Cir. assignment among rational division of vari Vigo, 295, (2d 1973); F.2d Cir. ous officers does not imply those United v. Tharpe, 1098, officers not directly assigned controlling 1976) (en banc). The Govern- person may legiti movement of a not ment urges nonetheless us to sanction the fear mately possibility dangerous of search in relying upon this case the reason- activity by a company found Berryhill: of the court in of a shortly who before had partici We think that Terry recognizes and com- pated robbery. in an bank armed Women mon sense legality dictates that of accomplices are not unknown as in serious such a limited intrusion into a citizen’s crimes. Even if we consider only the isolat personal Grant, privacy extends to a criminal’s ed statement Officer we need not companions at the time of infer that the arrest. It is legiti officer did not have a inconceivable that a peace mate concern officer effect- presence about ing a lawful occupant armed arrest of an of a robber’s associate at the scene of the expose vehicle must himself Tharpe, arrest. to a shot in 1098, the back 1976) (en F.2d 1100-1101 from defendant’s associates be- banc). Moreover, cannot, there are cause he spot, additional on the make the statements Officer Grant in the nice distinction between record whether the oth- to support findings.3 the court’s companion We con- er is a in crime or a social bag Government, 2. Defendant does not claim that either the 3. On redirect examination containing previous or the were in the Grant testified that in one situation require occupant pulled exclusive control of the officers so as to where he entered a an a any event, a warrant. those claims would revolver out from underneath a sheet and supported by not be the facts. aimed it at Grant’s head. Officer Grant shot occupant point. at that though rights companion of defendant’s the ar- companions All of acquaintance. here, see vicinity, question ca- not Alder directly the immediate are restee within States, a harmful assault accomplishing man v. pable of officer, constitutionally sub- are we should on the none- L.Ed.2d “pat-down” reason- cursory jected to the be at cognizant theless least them in give assurance that ably necessary to considering which involved the search items 1193.) (Supra, they are unarmed. We are un- within her immediate control. every case the “po- able to assume that in may rationale be suffi this While a dangers” accompany tential which custo- limited a “pat cient where a search dial arrest infect the immediate invariably down,” to hold that on this unwilling arewe companion area within the control of so as may generally extended reasoning Terry items within the render search of every con the area of immediate to items within area of a immediate control a companion’s companion. trol of an arrestee’s See Sibron approval reasonable such sweeping one. A York, 392 v. New Indeed, potential as that obvious carry the court in would rights noted that the search for abuse of arrestee Berryhill specifically both however, Where, did not extend companion companions. of defendant’s and his an of a handbag examination which beyond arresting an his own calculation officer at the time of the arrest. clutching review, she was objective which must survive deter- 1193. Our Berryhill, supra, at reluctance to may mines that a situation dangerous exist reasoning urged by rely Govern presence under the circumstances due to necessarily preclude ment not us from does of a third party, propose, we do not out of search in this case. The full allowing the regard officers, safety person following search of a lawful custo “pat limit the when search to down” only exception dial arrest is “not danger reasonably actual is seen exist in requirement warrant Fourth Amend easy companion’s access to items within the ment, a ‘reasonable’ but is also search under immediate control. United States Robin Amendment.” v. question, In our view there is little son, 218, 235, 467, 477, 414 38 U.S. therefore, this rule search arrestee, (1973). L.Ed.2d 427 Even an how conducted in circumstances particular these ever, in expectation privacy retains was the officers reasonable. At the time control-, possessions within his immediate agents and hotel approached defendant’s a thus warrantless search of items those room, they might who else did not know cannot justified by any expecta be reduced also While the be the room. occupying tion of privacy stemming the arrest. in the being defendant was arrested door Chadwick, 16, supra, 10, 433 U.S. n. 97 officers, way by in the room other small justification S.Ct. 2476. The for allowing immediately Officers Grant and Trotta ob searches of those warrantless items within in the served that was room person another immediate control arrestee’s without re standing probability The near the bed.4 quiring calculation that destruction of gun that a in the room was en was also lies, weapons may evidence or be involved suspects hanced had the fact that both “potential as we have noted in the dangers brandishing weapons during been lurking custodial arrests.” observed in all Id. at 14, robbery only 97 time before. That S.Ct. 2485. Persons a short who are actually persons two observed present company person in the ar had been robbery did not exclude automatically participating rested lose in the do not some share with inter protections. accomplice possibility of their Fourth Amendment anof Re, avoiding 581, Di 332 and retaining proceeds v. 68 est in U.S. (1948). Thus, third 222, L.Ed. 210 al- The that the S.Ct. 92 arrest. likelihood Smith, 1028, 1975); up- 515 F.2d v. 4. Limited searches of residences have been Reiner, 1975); held under similar circumstances. See United 1032-33 Simms 980, Rich, 468, (N.D.Ill.1976). F.Supp. 472-73 occurring events after height- gun to a had access in the room in the directly deny participation lump a would not observed Grant ened when Officer judge held that if de- lump robbery. The trial discovery that in the bed. money he received the testified currency did not di- containing bag awas Pastore, would the Government close to from the likelihood minish cross-examination, “Isn’t entitled to ask on weapon. contain a might also the woman you it received that a a While a fact pistol. replica It did contain robbery?” provided The court further why bank precisely not know did Grant Officer negative, in the that if defendant answered under these the woman impeach his testimo- the Government could fear that a the officers’ circumstances state- voluntary prior with inconsistent ny in the room present well be weapon could the benefit of ade- ments made without against use it might woman that the warnings. Harris v. Miranda well-supported.5 quate legitimate them was 643, York, New S.Ct. advocate necessarily do not We ruling, the court’s (1971).6 L.Ed.2d 1 After Ohio, Terry an extension of our decision testify. not to defendant decided 1, 88 S.Ct. U.S. court’s submits that the trial Defendant searches of areas within (1968),or wholesale ruling in effect allowed the Government persons present all immediate control of impeachment, lay its own foundation do, however, hold an arrest. We during Supreme Court practice condemned area of of items within the that a search States, Agnello v. United who is control of immediate case, L.Ed. 145 In that for a a custodial arrest present during testify on direct ex- did not guns were used is recent crime in which concerning a can of cocaine amination objective probability of reasonable when an as the re- suppressed which the court had exists under the law enforcement danger to and seizure. On illegal sult of an circumstances. cross-examination, in response he testified that he question by to a Government Post-Arrest Statements. II. Defendant’s cocaine. The had never seen the can of trial, counsel in- During defendant’s cocaine. then introduced the Government the court that defendant intended formed conviction, reason- The Court set aside explain possession testify nothing to the defendant “did ing that theory was that Pas- money. Defendant’s protection jus- or to waive his constitutional Savings tore the Allied and Loan robbed respect of the evi- tify cross-examination gave with and then de- another individual have been obtained dence claimed to $1,200 purchase morphine to 35, Agnello, supra, search.” S.Ct. Pastore. The who was found with woman 7. defendant at the time of his arrest testified purchase intent regarding defendant’s to with defendant agree do not We narcotics for Pastore. by Ag is controlled that the situation here testimony intended Defendant nello. Defendant’s prevent moved in limine to the source of clearly involved previous incriminating use of his state- would have in his room. which was found purposes impeachment money ments for on the would have The the Government grounds only regard- question that he would testify 1602, (1966), companion could be used to 5. Defendant’s was not allowed to freely testimony. impeach and the search was confined a defendant’s direct At move about U.S., immediate control. to the area within her Cf. at 646 of 226 of 91 S.Ct. Court Griffith, stated, States v. 537 F.2d 900 Cir. provided shield Miranda can- “[t]he 1976). perverted perjury into a not be license to use defense, by way of a free from the risk of prior prior 6. The court in Harris held that inconsist- confrontation with inconsistent utteranc- voluntary in violation ent statements obtained es.” 436, Arizona, of Miranda v. 384 U.S. 86 S.Ct. gave his state- Upon arrest Mr. Pastore and the to ask defendant’s permitted been concerning to events ment to both related statement inconsistent prior in the rob- day, participation of that It is money.7 at least source of the accomplice, And bery. he named had responding that he inferable (Tr. 282). he named Frank Simmons. robbery,” “from money received the for a and moved mis- objected Defendant actually partici- he defendant meant prosecutor’s ground trial on asserts that al- Defendant pated it. hearsay. to inadmissible statement referred ask if to defendant lowing the Government motion for mis- trial judge denied robbery,” “in a bank money received the fully instructed trial, immediately impeached have de- the Government could com- jury prosecutor’s to ignore regarding fendant with statements trial, following defend- Later ment. in the in the and not participation ant’s Pastore, the trial ant’s cross-examination merely concerning with statements consistent state- judge prior ruled that the money’s we do not necessari- source. While opening to in ment of Pastore referred speculation as to ly agree with defendant’s to rebut de- be used statement could then as question phrased the effect of the as an that Pastore had implied charge fendant’s court, example we think that defend- by the solely to termi- implicated falsely defendant prospective ant’s was broad by police he so questioning nate his own up impeachment enough to himself open a drug hospital to a could taken prior with his inconsistent statements relat- Rules of Evidence treatment. Federal See to his receipt money partici- agree with defend- 801(d)(1)(B). While we pation the robbery. during remark ant that Government’s York, 222, As in Harris v. New are improper, we opening statement recog- 28 L.Ed.2d we preju- that it resulted unable conclude importance protec- nize of Miranda many other cases dice defendant. tions, but pragmatically per- that is not involving less innoc- by prosecutors remarks them perverted case, mit into “be license than uous the one in this curative defense, perjury by way use free from instructions have held sufficient to been potential g., cure e. prior the risk with defects. See of confrontation incon- Pritchard, 1036, 1041(7th F.2d sistent utterances.” For the Government cert, 1972) denied, have permitted been to ask for expla- especially This is so L.Ed.2d 685. nation of the differences defendant’s against where the evidence the defendant is explanations as to the source of Morrow, substantial. permissible would have been within the 1976), scope of cross-examination. Furthermore, cases while the cited therein. may Government’s remark have opening III. Opening Prosecutor’s Statement. played some in defendant’s decision on role During opening statement, the As as to Pastore’s inquire cross-examination to Attorney sistant United motive for implicating sug- following gesting remark: it out of was falsified Pastore’s testimony any According Agent participation 7. of FBI He was Tra- asked if he had during suppression hearing, robbery Savings vis the defendant the of the Allied Federal and 9th, questions testified the that he received from the Loan on the and additional purchase supposed Pastore to and not from revealed that he was to have re- $2,300 drugs. that, ceived The actual direct exami- from and he then directed questioning myself nation the he reads as follows: to wanted to Frank, if no know he mentioned other last all, Well, him, A. we asked first of some name, had told us where we could find him. Chicago Department, Police members of the say $2,300 And did he that he received Q. myself, not him but had asked where he was robbery? Savings, from Allied from the 9th, whereabouts, February noon on (Tr. A. I what he said. believe that is and I he said don’t recall what there. 66-67). officers, the area of the control of and be questioning the to terminate desire treatment, permissible search is narrowed. drug hospital for taken to the 900, 904(7th Cir. Griffith, the de- decision it a tactical not use he the risk of Yet the court did 1976). assumed district by which ruling on The Govern- when rebuttal. standard the Government’s this more limited free, 801(d)(1)(B) despite suppress, under Rule the to ment was then defendant’s motion Evidence, rebut con the Fedoial Rules of the the was under of fact that using pri- the suggested explanation the the time of the search. trol at by Pastore statements made or consistent Instead, of stated that because judge arrest, so and did without shortly after party of the third presence had first the defendant. What objection by turning he of the bed found search when mentioned seemed to be inadmissible reasonably to be back of the bed covers opening state- during the Government’s found He further incident to arrest. ment, admissible. No thus later became and the handbag the search of therefore, prejudice, resulted unrea- was “not an “gun” discovery ant. He so ruled seizure.” sonable search and AFFIRMED. were many officers the fact that despite a nude party third present, that the SWYGERT, Judge dissenting. Circuit cover, and that holding woman a sheet majority’s I am concerned deeply searching for he was testified officer Grant physi- of of ruling suppression on the issue evidence. dissent. respectfully cal evidence must making In his determination By holding that the search conducted in reasonable, and seizure was search reasonable, this defendant’s hotel room was light judge used an incorrect standard. court permitted has an unwarranted exten- factors, presence the mere of the other all sion the rules have evolved under justify a alone cannot party the third the Fourth Amendment. con- person’s within that search of area The purpose of the Warrant Clause of the danger aOnly present trol. clear and Fourth is protect Amendment individuals justify such a search. officers could government intrusions “unreasonable dress, the woman to permitting Instead of legitimate expectations priva- into their room, obtaining guard posting outside cy.” Chadwick, returning to search and later warrant 1, 7, 2476, 2481, 53 L.Ed.2d proceed immedi- room, the officers chose (1977). Therefore, when confronted this nude the area near ately by searching search, a warrantless a court must deter- reason- To a search was woman. hold such mine whether the search was reasonable beyond to extend Chimeldecision able is light of surrounding circumstances. limits. permissible constitutional Because the defendant concedes that I would reverse and remand therefore probable cause officers had to arrest a new trial. him, the specific question is whether this search was incident to properly conducted

an arrest.

It is well that when a search established arrest, incident the offi- conducted to an may

cers both arrestee

area within the arrestee’s control in order weapons any and to seize any remove might concealed or de-

evidence which California,

stroyed. Chimel L.Ed.2d

However, a defendant is arrested once

Case Details

Case Name: United States v. Frank Alexander Simmons

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 31, 1977

Citation: 567 F.2d 314

Docket Number: 77-1271

Court Abbreviation: 7th Cir.