United States v. James Allen Blanton, Jr.
520 F.2d 907
6th Cir.
1975
Check Treatment

*1 footnote, employed it rary insignificant as to leave the language compulsion from personal pertinent taxpayer Cohen, 464, 388 F.2d substantially intact. typical Cir. As exam- 1967): situations, ples of these the Court ex- * * * pressly cites the Schwimmer and Guter- possession pa- it is [But] 333, 16, ma cases. Id. at 334 n. 93 S.Ct. sought by government, pers 611. ownership, stage which sets the for ex- Horowitz, governmental compulsion (2d of the ercise re purpose privilege 1973), denied, 867, it is of the cert. 414 U.S. 94 S.Ct. * * * 64, 86, prohibit. firmly supports 38 L.Ed.2d our that Couch is controlling view on these 12, Quoted in 409 at 330 n. S.Ct. U.S. background factual facts. Our stronger is much tenor, In the same the Couch at 617. support government’s quoted from Perlman v. United Court States, than it position was in Horowitz. Nor 7, 15, anything do we find in United States v. (1918), as L.Ed. 950 follows: Kasmir, 1974), F.2d 444 But Perlman insists that he owned granted, cert. U.S. 95 S.Ct. appears the exhibits and to contend (1975), 42 L.Ed.2d 835 be in conflict ownership exempted that his them with the view that the summons before any use Government with- us should be enforced. out consent. The extent of the is rather insistence elusive of measure- Conclusion. It seems to ment. be that the owner principles We hold stated in property must be considered as hav- supra, Couch United control on

ing possession a constructive of it the record before us and that judg- it wherever be and in whosesoever the district court ment of must be re- be, always, and it therefore, hands versed. in a kind of asylum of constitutional It is so ordered. privilege. And to be of avail the con- must pushed tention to this ex- opposed, It is however,

treme. by all cases. They,

the cited as we have

said, make the criterion of immunity ownership

not the property but the

“physical compulsion” or moral exert- [Emphasis supplied.]

ed.

Quoted in 409 93 S.Ct. at 618. UNITED STATES of Although judge the district thought otherwise, the fact possession that the records the accountants had many years stretched over was not the BLANTON, Jr., James Allen controlling factor in the decision. That Defendant-Appellant. clear is made the court’s assertion No. 74-2113. possession actual of the documents Appeals, Court of significant the most relationship bears Sixth Circuit. protections Fifth Amendment against governmental compulsions upon the indi- 1975. vidual accused of crime. stating the general

While rule as

above, the Court in Couch recognized

that situations would arise where con- possession

structive was so clear or the

relinquishment tempo-

On examination, redirect colloquy place: took “Q you Mr. asked rea- Howell you all were there son was looking for is that correct? guns, Did he ask *3 that? so, A I yes. believe Blanton, Jr., pro se. Allen James Q Now, is that the only reason Hoefle, Cincinnati, Ohio Fred H. you there, all were look for defendant-appel- for (Court-appointed), guns, or some purpose? other lant. Well, A there were a few reasons. Jr., Siler, Atty., U. Eugene E. S. Mr. Blanton was investigation under Arehart, Lexington, Ky., E. James robbery for bank and we I were—and

plaintiff-appellee. assisting Agent was also Glossup with investigation. his There was supposed ENGEL, PECK, Before McCREE $50,000.00 in bank robbery— Judges. Circuit Objection. MR. HOWELL: Objection THE COURT: sustained. ENGEL, Judge. Circuit A (continuing) was under in- —he Appellant Blanton, James Allen Jr. vestigation for bank robbery and we by jury convicted a in the was District coordinating the were investigation to- for the Eastern District Court of Ken- gether.” tucky, Covington, of both counts of an Later, in the direct of examination charged him with will- indictment Special Agent Glossup FBI, of the possession unregistered of an ful semi- assistant United States Attorney ques- rifle barrel automatic with a of less than him tioned as follows: statutory length, in violation 26 of “Q Did an occasion 5861(d) §§ U.S.C. and with August of 1973 to conduct an investi- possession of a .38 caliber unlawful re- of gation Blanton, James Allen Jr.? in violation of 18 App. volver U.S.C. Yes, A sir. 1202(a)(1), having previously Blanton § Q What the purpose been convicted of in- robbery. of armed vestigation? was arrested on 1973, just A In as he was about with a bank rob- to enter connection a bery. parked Ford Gran 1973 Torino across the Pad, from The Covington. street bar in Objection. MR. HOWELL: of owned A search companion, Blanton’s THE Overruled.” COURT: produced Deborah weapons which led two Blanton’s con- testify at trial did viction. sup his own defense. The record of the theOf four issues raised hearing held pression pres outside the direct appeal, on his we reverse and re- jury of the shows that the ence for new his mand trial on claim that his investigate led to re Blanton on ato fair trial was right violated ports from informer Blanton had injection by government deliberate in a robbery admitted involvement bank of inferences that witness Blanton $50,000 proceeds of the and had involved in a also recent armed robbery. Outside Torino. this 1973 Gran During trial, from an special hearsay evidence informer Alcohol, disclosed, identity Bureau Tobacco and whose was never Fire- arms testified before evidence whatever concerning was no indicate apprehension specific Blanton’s the search of Blanton’s involvement rob companion’s bery, car. no evidence of indeed the rob- 910 injection defendant. Kotteakos

bery itself. deliberate wholly 66 testimony concerning un- 90 another (1946); al- offense in which Blanton was L.Ed. United States v. related Hurst, (6th 1975); 510 F.2d 1035 legedly involved was error. United Cir. (6th Ortiz, Perry, v. 512 F.2d 805 Cir. States v. F.2d 1224 States United 1975); O’Donnell, 1974). belong United States v. The car did not (6th Cir. (6th 1975) girlfriend. to his (concurring Cir. His F.2d Calvert, constructive, guns United opinion); States (6th 1974); depended upon jury’s guilt Cir. United thus Nemeth, 1970); believing presence that he knew of their F.2d 704 Smith, guilt The evidence car. true, say but we cannot per- strong, We find it difficult it is Thus, judgment how both the was harmless. ceive Assistant error *4 Attorney and the and the be reversed case remanded witnesses must could have trial. understood for new impropriety, not the flagrant we find even more and the con- the must be remanded Since case the of in the first duct cited in- retrial, appropriate we deem it to deal only who overrode not stance the de- appellant’s other claims of error. with objections, counsel’s fense the trial that the search of Appellant contends ruling judge’s re-emphasize itself the Torino, made without the Gran evidence. objectionable warrant, the seizure of the semi-au- and therein, pistol rifle found tomatic and justify government seeks to The violative of Blanton’s Fourth grounds: (1) two questions on that the rights and thus the evidence Amendment question counsel had invited the defense therefrom should obtained making repeated references ing suppressed. agents of number who descended the hearing suppression At the James appre upon Blanton at the time of his officer, Mercer, Covington police testi- and, (2) government that the hension 16, 1973, August he fied that on received simply trying amplify Agent Ear was a confidential informant that word from ly’s previous testimony that there were $50,000 approximately had in why reasons we were “several trunk of his automobile. The infor- the Blanton.” Our of review the testi Mr. personally that he seen mant stated had mony entirety in its shows money in the trunk and that Blanton the justification the line of in no was at the the money told him time had pursued by government. the quiry “from bank heist or a bank hold- came The South”. auto- up somewhere government The claims further supposed to have been in the was mobile the introduction of the evidence was nightclub area of The Pad approximate necessarily because harmless Covington, Ken- and Madison at 4th had before it the evidence of Blanton’s passed this information tucky. Mercer conviction, felony element Glossup of the Special Agent FBI on to proof necessary to conviction on Count 17, but the vehicle was August II, proof guilt and because was located. overwhelming. Both claims are without August It is one present evening merit. matter evi Late conviction felony thirteen dence Mercer received past, quite years another observed to infer informant had confidential gun” recently accused had en the trunk of the auto- “machine using in similar conduct. Neither can gaged was time. mobile informant the car as guilt the evidence of described overwhelming bearing 1973 Ford Torino beige error could not Gran plates, possibly jury’s Kentucky have influenced deci license and said that he gun again rights sion affected the substantial in the trunk had observed car, Miss spotting Blanton and after the car around The Pad. while emerged from the residence Locke relayed Mercer this information to Again driving. the car. Blanton entered Glossup on 21. Mercer’s Agent park- Ford to a agents followed the hearing in- testimony suppression at the Pad. Blanton ing lot across from The that he had dealt with the infor- dicated went into The Pad and Miss Locke years for several and that the in- mant approximately there for twen- remained provided generally ac- formation According Glossup: ty minutes. and reliable. curate that, Agent Glossup testified Special get going I was “........... following up on the information he them to obtain a John car warrant to Mercer, received from he had sent had seized, have the car but before I had throughout teletype inquiries the South opportunity to even leave the area concerning any large recent bank robber- Mr. Blanton and female exited the Columbia, reply from ies. A South Caro- proceeded toward the bar and car.” $147,000 that a indicated bank rob- lina point, At that descended had bery occurred there on just upon entering as he was that a Ford Torino had been used in him, keys took read robbery. Glossup also received a tel- rights, pro- constitutional him his etype Depart- from the Cleveland Police to search ceeded the car. The search reporting ment that Blanton had been Agent was conducted FBI John Bar- *5 driving the same automobile in seen the testified that had ry, who he known Cleveland, August Ohio area on 18th or personally years. for several 19th, but that police attempt- while produced the weapons The search get car, ing to a search warrant for the placed formally was then under disappeared. it had arrest. receiving phone After Mercer’s call concerning gun the August machine on Supreme This court and the 20, August federal on 21 staked have Court often dealt with the lawful Blanton, The looking Pad out ness of warrantless searches and seizures Agent Glossup their surveillance failed. Though automobiles. reasonable war that after testified cerning the con- information rare, probable rantless searches are cause him, Blanton first reached an automobile contains evidence or contacted Assistant United States Attor- plus “exigent crime fruits circum ney DeFalaise who advised him that if will justify stances” warrantless permitted time and the car was in of an search automobile. United States state, he try get mobile should Beck, warrant” searching “John Car before In United Upthegrove, States v. 504 after it was time car located. If did not 682 1974), however, this court faced permit, DeFalaise “felt problem similar of whether somewhat proper would be under the circumstances exigent probable cause and circumstanc- to conduct Carroll rule search with the justified es a warrantless search of an understanding that the car contained case, In that automobile. noted that contraband or fruits of the crime”. Probable cause exists where “the Finally, p. 22nd, at 6:22 m. on August within and circumstances ar- Glossup facts resting and another spotted [the knowledge and of parked in driveway Ford officers’] of a resi- they reasonably Avenue, had trustwor- on dence Casino later identified information thy sufficient residence as the of Deborah [are] Locke. to warrant a themselves man of rea- Mercer Agent previously had checked registration caution in the belief that” an sonable and found it being been or has is commit- offense registered to Miss although the Upthegrove, United States v. su- on ted. registration address give did not 686, citing pra, Carroll Miss Locke’s Shortly correct address. 912 280, might leaving 132, 69 Blanton the Covington 45 S.Ct. U.S. area, since the car spotted had been (1925). L.Ed. days three earlier. Cleveland Final- circumstances facts The ly, the officers had reason to believe that arresting officers on Au

known dangerous contraband was in the car and 22, 1973, were to warrant sufficient gust property might stolen be contained to believe reasonable caution a man In these therein. op- circumstances car evidence or fruits portunity search the car was “fleet- arresting crime. officers had aof ing”, Maroney, Chambers v. from a reliable source that 90 S.Ct. (1970), L.Ed.2d 419 of the car which Blanton had trunk justified. the warrantless search was gun”, a “machine driving contained contends, however, money, possibly as obtained in a well as since the FBI robbery. They knew that knew a week in Blanton had advance the car present possession use could contain the stolen extensive money illegal weapons, question likely they and thus had the car weapon. should obtained a search warrant constructive prior they to the Finally, Agent Barry, time when first arresting offi saw the However, 22nd. cer, per he had known Blanton car testified while spotted Covington by the years, unques informer, and thus he sonally past presence criminal the car’s continued knew of tionably had record, proved days elusive three prison prior since Blanton had been in until it was seen in 1972. We think thereto Cleveland. here gave arresting situation thus unlike that facts in Cool these Hampshire, v. New idge cause to believe probable ex-felon, (1971). possessed a firearm in viola L.Ed.2d 564 In Coolidge, police 1202(a) Title 18 of the United had known for tion of sever § days location Appendix. al the car Code to be addition, they searched. had no rea however, Admittedly, probable *6 believe question son to that the car in justify alone will not a warrantless cause going jurisdic to be moved from the and seizure. search v. tion, and no reason believe the car Beck, supra, Lewis, v. objects which were either sto We turn then len, contraband, dangerous. question of whether sufficiently “ex practice preferable would have circumstances existed igent” to justify agents here to have obtain- for probable search where warrantless they when decided to act warrant existed. ed a cause provided them. The basic test “exi for whether However, particular in the circumstances exist, gent circumstances” and thus ease, this where the location of becomes unnecessary to conduct warrant uncertain, we hold car that search, a lawful is whether “it is not required agents were not to obtain practicable secure a warrant”. Car warrant, good only for search short supra, roll 267 U.S. at period, on the chance that the car could S.Ct. at 285. Here there is no period. located within that Accord- dispute practicable it was not for ingly, we hold search was valid. arresting to obtain a search grounds remaining appeal The two they after first saw the car warrant need brief comment. Covington evening on the Only twenty 22nd. about minutes Blanton’s claim that there was elapsed between the time Blanton en sending insufficient evidence to warrant tered The Pad and the time when he jury the case to the is without merit. attempted to leave in the car. principal addi basis for this claim is that tion, to believe reason by vehicle was owned Deborah fact, not Blanton. This as well as gent excusing circumstances obtaining a testimony Locke’s that others Miss had search warrant as the police Cleveland goes weight to the sought to the car but officers to do. access See Cardwell v. evidence, sufficiency Lewis, (1974) showed both use and control of (Opinion 41 L.Ed.2d 325 of Stew- art, J.). sufficient to send the car jury. to the case appellant it was error

Finally, claims judge, resuming trial the trial ruling on the motion suppress,

after jury:

to state jury, the time

“Members of was on the

this witness stand when courtroom, excused from the question on the of whether or it was UNITED America, STATES of awas lawful arrest or deten- not there Plaintiff-Appellee, of the defendant this tion witness v. time he went at the to the automobile Court has ruled that was a Stanley MARKS, d/b/a Cinema X detention and lawful arrest.” lawful Theatre, Defendant-Appellant. urges that “The conclu UNITED America, STATES of inescapable jurors, when told sion Plaintiff-Appellee, arrested, appellant legally had been would conclude that if the court felt the ‘legal’, appellant had commit arrest AMERICAN AMUSEMENT COMPA- crime that entitled the

ted a NY, INC., Defendant-Appellant. arrest, therefore, make guilty eyes Judge, America, UNITED STATES of therefore, the law.” We do not draw so Plaintiff-Appellee, sweeping a conclusion from the state made, although we that such ment Guy WEIR, Defendant-Appellant. unsaid, to a are better left remarks being they irrelevant to the issues are to UNITED STATES of could, Any misunderstanding decide. believe, easily have been cured instruction, appropriate but we note no *7 request was made

such Blanton’s Harry MOHNEY, Defendant-Appellant. event, any counsel. circumstance likely of is not complained to recur on UNITED STATES of retrial. and remanded to the district Reversed for a new trial.

court COMPANY, AMERICAN NEWS INC., American

a/k/a News Distributing Co., Defendant-Appellant. McCREE, Judge (concurring). Circuit Nos. 74-1531 to 74-1535. I concur in the decision to reverse for United States Court Appeals, majority the reasons stated in the opin- Sixth Circuit. I would also hold that the ion. warrant- search of the less vehicle was unlawful 1975. would order suppression yielded. evidence it I proba- cause existed to believe

ble that the car contraband, but I find no exi-