*1 and was of the claim The conclusion that the defense of the nature aware of the respondent substantially opportunity prejudiced inves- adequate afforded by delay contrary tigate to all the evidence. it. The libelant is entitled trial to a on delay admittedly There was merits. alleged days date of between Judgment vacating will be entered marine date when and the collision judgment of the District Court re- respond acting engineer, on behalf manding the action to that court for fur- make opportunity to ent, was afforded proceedings ther not inconsistent here- damage Royal Oak. survey of the with. argument respondent’s The thrust of the delay, emphasized in initial is that this findings conclusions fact and below, adopted consti the court law agree. The cannot tuted laches. We slight delay im nor neither foreclosed paired respondent’s defense delay might have The merits. credibility, the issue
been relevant to opinion, un express but no we America, UNITED STATES of case it was instant the facts in the der Plaintiff-Appellee, by the de raised the issue irrelevant to laches. fense of SYKES, Richard John John Brenton Pres- ton, raised Ray Strunk, The defense Kenneth Defendants-Appellants. laches, respondent, aside from that No. 14670. had been its denial that there rested on collision, position in Novem taken United States Court of notified of the ber of when was Sixth Circuit. There was uncontradict libelant’s claim. July 23, 1962. offered at the trial that ed evidence necessary defense, testimony prove this meritorious, avail if in fact it was
able. been aboard the The witnesses who had alleged Royal the time of the Oak at available; fact, their were
occurrence depositions . more than been taken prior to the trial and were
three months at the trial. The
offered in evidence who had been aboard the members
crew Dunlap E. time Charles alleged were still the em- occurrence respondent time
ploy at the mate, available. first and were trial Pineiro, was called as a witness one Oscar length respondent and testified Royal in which the Oak manner as to clearly appears It from un-docked. testimony that he had a distinct recol- his un-docking and the circum- lection surrounding it. Cf. Waterman stances Steamship Gutierrez, Corp. 1962). (1st Cir. *2 Leggett, Newport, Robert Ky., D. John Elfers, Covington, Ky.,
R. appellants. for Moynahan, Jr., Bernard T. Atty., U. S. Meade, Mitchell N. Atty., Asst. U. S. Lexington, Ky., appellee. MILLER, Before Judge, Chief SIMONS, Judge, Senior Circuit DARR, Judge. Senior District MILLER, SHACKELFORD Jr. Chief Judge. appellants, The Sykes,' John Richard Ray John Brenton Preston and Kenneth Strunk, guilty by jury were found conspiring the District Court of to rob Berry, Berry, Ken- articles found in the car. Judge, Bank the Union tucky, hearing Fed- after con- insured bank a state cerning appellants and Corporation, in the arrest Deposit eral Insurance mo- Title overruled the violation of Sections *3 no tion. was There Code. 18 United States charging offense the substantive count Appellants the contend that fact, and, robbing the bank in the bank of suppress motion to should have appellant received Each not robbed. was been sustained it obtained in was imprisonment. years a sentence of five through illegal the an search of automo trial, intro- the At the Government Although without a bile warrant. there following showing the duced evidence was no automobile, for the search of the warrant facts. the Government contends January A.M. on or about 3 legal On that the search was because it was 1961, police city of New- the officers of a lawful arrest. Under this Kentucky, Mon- port, & to 10th went rule, established well search without response Newport in in mouth Streets dependent initially upon warrant is a law stating three men that there were call Rabinowitz, ful United v. arrest. States parked which been an automobile had in 56, 60, 339 U.S. 653; S.Ct. They questioned P.M. the since 10 Johnson v. United 333 U.S. unsatisfactory men, gave evasive who 367, 92 L.Ed. 68 S.Ct. 436. Accord they why were there at that as to answers ingly, inquiry ques direct our to the we night. said he hadn’t work- of One time tion the arrest of was lawful. whether other said months and the two ed for six applicable the absence of an federal working. They they hadn’t been law the statute the of state where an among twenty-five money the cents in place arrest without warrant takes de the them. The officers arrested three of validity. termines its United States v. case, men, appellants the in this are who Re, 581, 589, Di 332 U.S. against charge placed vagrancy L.Ed. Miller v. United them, impounded the automobile. In 301, 305, 2 L.Ed. searching the the automobile officers 2d 1332. glove loaded in the found two revolvers Appellants contend that since the compartment of the and an additional charges press- court the state were not charge placed appellants was judgment has been no ed and there carrying deadly weap- a concealed and thereunder, it has not conviction been a further search the automo- on. In the arrest was established lawful. luggage officers found bile the hand, appellants the other On have stockings compartment two ladies acquitted charg- under the state been end, upper in knot at the one half tied rulings Billings as to make the es so eye holes, plate a license for Mason Commonwealth, Ky. 381, 3 S.W.2d Kentucky, County, which had been ille- 770, and in Parrott v. Commonwealth gally manufactured which had small 440, applicable. (Ky.), 287 S.W.2d permit to it would hooks attached Kentucky held in those hung plate, over be another license toit acquittal in the state court cases pieces slips, rope, pillow two two length charge made the state the evidence gloves fishing cord, and four produced a search without a warrant they caps, of which had been cut two so following the arrest inadmissible an- pulled further down on be the head. could being prosecuted on a other case different having adopted The case charge what found in based Government, disposition no
United States
search.
charges
of the two
made
New-
Police Court.
port
acquittal
In the absence
charge
original
ques
state
Appellants moved in the
under
Court
validity
concerning
of the arrest
suppress
is an
the evidence
guilt beyond
prove
decide
court to
as to
open
federal
one
Nicholson,
presented.
doubt.
upon
the evidence
States v.
the basis of
330, C.A.6th,
circumstances,
think
we
Under
Ap-
Kentucky
ruling
Court
In addition
article found in
Commonwealth, 280
peals
in Davis
automobile,
Depot
bartender
applicable wherein
is
S.W.2d
appellants
Cafe
three
testified that the
legality
is
arrest
held
together
occasionally
would
in the cafe
be
36, Kentucky Code
Section
controlled
and on one occasion told him while
pro-
Section 36
Practice.
of Criminal
serving
was
“they
them drinks
a table that
peace
with-
arrest
vides
big job planned.”
had a
Strunk
public
when a
a warrant
out
shortly
testified that
before the arrest
presence. This has been
*4
in his
committed
and Preston
in
the
were
the
room of
back
by
Ap-
Kentucky
Court
the
construed
Sykes
Depot Cafe and
came back there
authorize an arrest if the
peals to
said,
opportunity make
and
“I have the
to
good
upon
and
in
faith
acted
substantially
$5,000.” Preston testified
public
grounds
to believe that
Sykes
same, and
the
added that
wanted
presence.
being
in his
opinion
their
as to whether or not he
Hoskins,
Ky.
Sizemore
go through
it, whereupon
with
should
leading
facts
material
S.W.2d
said,
going
“Well,
you
if
Strunk
are
to
dispute.
not
by
were
in
up to the arrest
you
going
$5,000,
make
must be
rob
to
District
They
the
were summarized
bank,”
“Well,
Sykes replied,
to which
overruling
sup-
Judge
the motion to
in
you
Sykes
did
how
know?”.
testified
evidence,
press
as follows:
the
approached
had
that he
been
some
drive
to
a car for them
The Court is
men
on a bank
“THE COURT:
robbery and that
went to
and
opinion
the officers in mak-
he
Strunk
that
the
acting
search,
Preston and had the
ing
under instruc-
conversation above
this
appellants
superior,
to. The
on the ba-
referred
they
claim that
from their
tions
rejected
sugges-
emphatically
circumstances surround-
the
sis
credibility
tion,
ing
part
but the
testimony
and their loca-
this
defendants
these
jury.
time,
in
the
o’clock
the
their
for
at that
section,
morning,
downtown
in a
testimony
was also
There
from resi-
located,
houses were
business
where
Berry,
very
of the town of
dent
small
night club, had
there
near
Kentucky,
Sykes
in
that he
town
saw
and
street,
on
loafing
hours
five
the
four or
some
man who resembled
Preston on two
men
about
these three
day,
different occasions
the same
reason;
any apparent
it, without
shortly
arrest, driving
before their
slow-
gave illogical
questioned,
when
then
through
ly
looking
Berry,
town of
the
vague
irresponsible
and
or rather
observing things.
to
and
from side
side
why they
suspicious
for
reasons
and
agent
made to
In a statement
present, and
officers
the
were
Sykes said that
the F.B.I.
he had in-
alerting them
to these
call
received
suspicious
Berry,
at
to rob the bank
tended
Ken-
think
circumstances—I
agent
get-
tucky,
the
to
and described
the
justified making
they
in
an ar-
were
away
planned
use,
that,
to
route he
and
they
vagrancy and
searched
rest
running
get-away
shortly
the
in
route
result of the arrest.
car
the
arrest,
stopped
had
he
the
before
at a
motion be overruled.”
Let
person
country
store
had a
with him
buy
caps
opinion
that were
we are
two
later
these facts
found
Under
Judge
storekeeper
was not in error
the car. The
testified
District
caps
ruling
purchased
arrest was valid and
two
at his
Strunk
store
January
19th,
properly
or
18th
made as an
1961. An
the search
agent
testified
of the arrest. Probable cause F.B.I.
Strunk stated
driving
may
he
that was
justifying or
him
arrest
exist
automobile
though
stopped
country
the time
facts
be such
not
even
bought
caps.
hearing denied,
two
Preston
store and
agent
F.B.I.
made a statement
to the
177 carefully car in But believe the search thereupon I He statement. not deter in this case was warranted circumstances, jury that it was structed the Judge recited referred the offense mined whether up probable law, opinion, felony set under Ohio MILLER’S or not was was police Sykes’ justify jury accept cause to the action of should and that making purposes for officers. One of the convicted had not been statement crime, vagrancy prevent ques offense is felony consider of a Attorney, criminal action and that as it is considered District entirely its of a va- question without from the mode of life will flow grant. Therefore, the search do not consider consideration. We police to ascertain prejudicial circum officers question under the illegal Lee, in- 193 whether the automobile carried United States v. On stances. might affirmed, 2nd, 306, 310, strumentalities be used 343 F.2d C.A. 1270, the commission of a L.Ed. crime. U.S. rehearing denied, S.Ct. L.Ed. Dolan United 8th, 454, 459-460, de cert. C.A. 218 nied, L.Ed. U.S. judgments are affirmed. Judge DARR, (concurring). Judge opinion I concur in the COMPANY, SELB MANUFACTURING However, MILLER. I believe that Western, Inc., Corpora- Division of tion, vagrancy does Manufacturing Corpo- arrest for not warrant and Blades *6 ration, Corporation, Appellants, extending beyond person of vagrant. There would be no reason INTERNATIONAL ASSOCIATION OF to search house or an automobile as MACHINISTS, DISTRICT NO. arrest. An able-bodied to such Organization, Appellee. Labor loitering person, who is without visible No. 16995. by po- support, means of be arrested vagrancy, lice officers for his States custody, but Eighth searched insure safe Circuit.
nothing the offense could connected with July 6, 1962. be found an extended search. Aug. 15, Rehearing Denied 1962. My judgment of va- grancy category falls into the same
minor traffic violations. The rule on in- in connec-
cidental search automobiles minor
tion with the arrest for traffic vio- is,
lations
“Where an accused is arrested for
a minor violation traffic presence officer,
in the arresting
is no reason for the glove explore compartment
or search the trunk of the ab- cause, additional
sent such
search is considered unreasonable procured thereby, any Varón, inadmissible.”
rendered
Searches, Seizures and Immunities
(1961), 1, pages 107, Vol.