During thе night of July 29-30, 1967, the federally-insured Bank of Mississippi at Mantachie, Mississippi, in rural Itawamba County, was broken into, and about $14,000 taken. Appellants were arrested later on July 30th, not at the scene of the crime but elsewhere in Itawamba County. They were indicted and convicted in the Northern District of Mississippi, in a joint jury trial, of аiding and abetting each other to enter the bank with intent to commit larceny, in violation of 18 U.S.C. §§ 2 and 2113(a). No confession was introduced and no issue is raised as to the sufficiency of the evidence or the instructions. The main questions center on the validity of the arrests and the searches made. We shall discuss the рoints seriatim.
I
The arrest of Ferino and the seizure of articles in his automobile
Ferino was arrested about 3:30 A.M.-3:45 A.M. on July 30th, near Mantachie. At that time, Deputy Sheriff Hendricks, Deputy Sheriff Buse, and State Patrolman Holcomb, investigating a report that youngsters were exploding fireworks on a householder’s property, had set uр a roadblock on the highway at which some cars were stopped. While the other two officers were away following a car which had sped from the roadblock, Hendricks noticed an unknown lone individual walking across the highway toward a parked *6 car with Alabama tags. Hendricks started toward this individual аnd, as the latter began to back the car out, called on him to stop; when, the driver continued, Hendricks pulled out his revolver, ran alongside, ordering him to stop, which he did. In answer to queries, the driver (Ferino) said he had no driver’s license or identification. Hendricks then formally placed him under arrest and had him remain in the car (since Hendricks, alone, was guarding three cars and several people) for some time until the other officers returned. Then, Ferino, again on inquiry, was unable to produce a driver’s license or car registration. He was asked to step out of the car, and by shining a flashlight into the car the оfficers saw two billfolds inside; these were retrieved and turned out to have identifications of the other appellants, Williams and Butera. The three officers at the roadblock did not know, during this time, that the bank had been burglarized.
Ferino’s warrantless arrest is challenged on the basis that Depufy Sheriff Hendricks had no authority, and also for lack of probable cause. Hendricks was never formally appointed in writing (as Mississippi law required), but he had been employed by the sheriff, had signed an oath of office, and had acted for a long time as a deputy in uniform, without challenge. Under Mississippi law he was at least a
de facto
peаce officer (Mississippi Code, 1942 Ann., Sec. 4045; Miller v. Batson,
The prosecution treats Ferino as having been arrested by Hendricks after the former had been unable to produce a license or identification. An arrest at that time certainly had a basis of probable cause that he was driving without proper credentials.
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Moreover, it is most probable that Hendricks, as he testified, did not start to move toward Ferino with the purpose of arresting him, but simply to have him identify himself in connection with the fireworks-exploding which had been going on — a reasonable request at that time of night and in those circumstances. Accordingly, it cannot be said that the arrest “began” when Hendricks first moved toward Ferino (and before it was known that the latter could not identify himself). See Smith v. State,
It would seem, however, that the detention first ocсurred when Hendricks drew his revolver, which was after Hendricks approached Ferino but before the latter was asked to produce license or identification. We believe that this stoppage-by-revolver was, in the circumstances, a reasonable “seizure” to prevent Ferino’s escaрing by car (cf. Terry v. Ohio,
The initial detention being lawful, it was then lawful for Hendricks to inquire as to the driver’s license and identification. On thе latter’s failure to respond adequately, there was, as we have said, probable cause to arrest for unauthorized driving. The arrest was valid.
As for Butera’s and Williams’s billfolds, they were seen from without the car by use of a flashlight, after Ferino’s arrest. Being in open view from the outside, they could be validly taken without a warrant. Harris v. United States,
II
The arrest of Butera and Williams
After Ferino’s arrest, it was discovered in the early morning of July 30th that the bank had been entered. Coming from nearby Fulton to help in the investigation, Patrolman Knight (of that police department) met two strangers walking on the highway away from Mantachie, wet up to their knees. On inquiry, they said they had spent the night at the sister of one of them in Mantachie (but gave no names) and that they were going home (without naming a place); they asked the name of the next town and U. S. highway. Knight offered them a ride to Fulton (after first going to Mantаchie) ; they preferred to be picked up on his way back to Fulton. In Mantachie, Knight reported the encounter to State Patrolman Holcomb and an FBI agent. These three returned to the highway where Knight had seen the two and saw them further down the road reaching for the handle of the door of a car parked in front of a house. On the officer’s approach, the two men ran into the woods, leaving the car door open. Holcomb broadcast a description of the men over his car radio, and later that day Butera and Williams, answering that description, were arrested by other offiсers, without a warrant, in a remote area of the county, not too far from the woods the two men had earlier entered.
A search of Butera at this arrest produced $315 in ones, fives, tens, and twenties. At the trial, three of the fives were traced directly, by expert testimony, to five-dollar bills from the bank’s vault, and there was also less direct testimony connecting the other small bills to the bank. A tear gas pen was found on Williams.
Appellants insist that there was no probable cause for the warrantless arrest of Butera and Williams, but we disagree. By the time of this.arrest, the facts known to the officers concerned with searсhing for the two strangers first seen by officer Knight (information which was communicated either directly or impliedly to the officers who actually made the seizure) included: (a) the burglary of the bank, indicating that more than one person was probably in *8 volved; 3 (b) the arrest of Ferino, an out-of-stater, and its surrounding circumstances, including the two billfolds with their separate identifications of two out-of-state men other than Ferino; (c) the statements by the two men to Knight, their appearance when he first met them, and their obviously being complete strangers to the area; (d) the actions of the two men in trying to open a ear door and in running intо the woods when the officers returned from Mantachie; (e) their descriptions which were broadcast; (f) their being found where they were. This accumulated knowledge satisfied the standard of probable cause to believe that the two arrested men were connected with the burglary. It follows, too, that the search of their persons, at the time of arrest, was proper because they had been validly arrested.
Ill
The seizure of appellants’ clothing
As already stated, Ferino was arrested near Mantachie at about 3:30 A.M. or 3:45 A.M. on July 30th; shortly thereafter, he was taken to the jail in neighboring Fulton. Butera and Williams were arrested at about 9 A.M. the same morning, and also taken to Fulton. There, FBI agents talked to the three men, beginning sometime between 9:30 and 9:45 A.M., advising them of their rights and interrogating them. The appellants were also fingerprinted and “booked” at that time, and their clothing was removed. The record does not reveal precisely when the clothing wаs taken, but an FBI agent testified that it was during the fingerprinting and “booking” process — “shortly” after appellants reached the jail, “prior to Noon or around Noon”.
The FBI agents desired the clothing in order to send it to the FBI laboratory in Washington, and it was so sent (apparently as soon as it could be). As a re-suit of this inquiry аnd testing by the laboratory, it was shown at the trial by expert testimony that the clothing (Ferino’s and Williams’) contained traces of an insulation material which was the same as that used in the bank’s vault door and that Butera’s and Williams’ clothing had traces of “slag balls” (typical of a metal-burning or metal-cutting operation) similаr to “slag balls” from the safe in the vault. This evidence and the clothing were admitted over objections that the taking of the clothing was illegal.
We hold that the seizure of the clothing was proper as an incident to the arrest of appellants, and that the ensuing search was valid. The men obviously could not be disrobed in public at the places they were first taken into custody — not until they reached the jail at Fulton where other clothing was available for them. Their clothing was removed within a short period after they arrived there, and it is plain that the FBI agents intended from the beginning of their investigation to take the suspеcts’ clothing and have it tested in the laboratory for any tell-tale evidence which might be discovered. This taking-for-testing was not an afterthought, but rather an action which was an integral part of, and therefore incident to, the process of arrest.
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See Golliher v. United States,
These facts differentiate this case from the Court’s reсent decision in Brett v. United States, 5 Cir., 1969,
IY
Denial of a speedy trial
Williams claims that he was denied a speedy trial. The dates are these: — his arrest took place on July 30, 1967, the commissioner held him on August 7th, the indictment was returned on January 30, 1968, not guilty pleas were entered on February 7,1968, and the trial took place in June 1968. On February 15, 1968, at a hearing before Circuit Judge Clayton (sitting by designation in the District Court) the pleas were confirmed and the appellants were given thirty days in which to file motions. Williams’ counsel said at that time that Williams did not wish any additional time, and asked for a trial. Judge Clayton responded that the case would be set for trial in due course, but not before the expiration of the thirty days “the other two defendants may use, if they care to do so”. On March 13, 1968 (not quite thirty days later), Williams moved
pro se
for a speedy trial and for severance, and the Government responded that the motions were improper because he was then represented by court-appointed counsel. The latter did not thereafter ask for a trial until shortly before it was actually held. In addition, there is no showing (or substantial offer to show) that the delay prejudiced Williams in his preparation for trial or in the trial itself, and it is clear that most of the delay was due to the lack of a regular judge in the district.
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In the particular circumstances, though the delay was long, the constitutional claim of lack of a speedy trial must be rejected. See Reece v. United States,
V
Williams’ claims of excessive bail and right to a severance
The commissioner refused to reduce Williams’ bail below $25,000, which he was unable to make,
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but he never asked relief from the district court or took an appeal to this court, as he should have if he wished to raise the issue. Stack v. Boyle,
Williams also says that the trial court should have granted him a severance. There was, however, no real reasоn to try Williams separately on this joint aiding-and-abetting indictment. There was no problem of confessions, or other condition making severance appropriate. The question of separate trials was within the District Court’s discretion (Smith v. United States,
The judgments are
Affirmed
Notes
. Hendricks testified that Ferino told him that some lady had brought him from Tupеlo to Mantachie and that he had gotten out of her car to walk to his own. Hendricks had, however, seen no car approaching in that area; in addition, Ferino was a stranger to Hendricks who was a long-time resident of the county.
. Since Hendricks was the only officer at the roadblock at that moment, he could not well give chase.
. For instance, near the bank there were found acetylene torches and other heavy equipment obviously used in the burglary.
. It was reasonable to deal with the three suspects at one time, on the morning of July 30tli, and not to take Ferino’s clothing before dawn when he wаs first brought to Fulton.
. Judge Clayton had been appointed to the Court of Appeals, and Judge Iveady did not take office until April 26, 1968. During the period Judge Clayton sat by designation in the District Court (after he had taken his place on this court on November 24, 1967), no trials were held. The first trial was held on May 4, 1968, after Judge Keady assumed his seat.
. The other two appellants were released on bail.