United States v. Thurlester Wilson

impermissi- Although forbidding deuce would be to conclude bly rule intro- that Swann is be believed because duction of a defendant’s other crimes likely Baldivid, frequent it appellate is on the basis of has been a concern of past conduct, courts, application principle his charged. committed the crime of the The cart ^[1918] Law See Reports (App.C.) Thompson pull horse along King, 233. and its ticular ing reference to Mastrototaro or case exceptions is not simplified by to the facts of a unthink- par- any precedent. that manner. other The eases are some- conflicting Rather, times and confused. Moreover, marginal rel- I consider exceptions the rule should be Christenbury’s testimony evance of regard considered with meticulous to the outweighed by engen- prejudice far case a keen under- facts standing each dered the revelation of the details necessary be- balance court, the crime. words of one prove prosecution’s its tween need to evidence should be excluded beyond case a reasonable doubt and generate its effect would be heat equally compelling demand concomitant * * * light, diffusing instead justice defendant be convicted that a relevancy peg where the minute charged solely of in the indict- the crime entirely dirty will be obscured so in- ment and not evidence which hung upon it. linen tempted jury flames Goebel, State v. 36 Wash.2d regardless that, of whether reason Boyd 218 P.2d See burden, the defendant state has met its 450, 458, S. punishment. is a miscreant who merits Ct. L.Ed. reflection, After I con- considerable Mastrototaro, we admonished the trial clude fairness prosecution for its “lavish treatment” of severely impaired. this case was the defendant’s crimes. Mastroto I would and award defendant reverse taro case,” yet was called a “borderline trial. new gambling sharking and loan crimes any related there did not involve mali

cious inclinations. Here we the re lation home, of a threat to a man’s inflammatory tendency of the testi mony sharper. worse, And what is closing argument its the Government danger

embellished the threat to include physical safety Christenbury’s

to the Transcript wife and America, children. at 628- UNITED STATES of 629; Plaintiff-Appellee, 675-676. District Court would have been well advised to hear Christenbury’s testimony preliminarily WILSON, Thurlester Defendant- degree in chambers to determine the Appellant. prejudicial re details would be No. 71-1764. probable impact vealed and jury, on the its Appeals, Court United States against balanced Government’s Seventh Circuit. testimony. need for the Argued June 1972. IV Sept. Decided Mastrototaro, publication Since precedent apparently this frail been given vigorous by prosecuting workout

attorneys in.my view, who, have failed cognizance opinion’s to take of that full

limiting language scope. and restricted Ill., Louis, for de

Joseph Cohn, E. St. fendant-appellant. Atty.,

Henry Schwarz, S. E. St. A. U. Ill., Levinson, Asst. U. Louis, L. Michael Atty., Danville, plaintiff-ap Ill., for S. pellee. Judge, DUFFY, Circuit Before Senior DURFEE*, Judge PELL, Circuit Judge.

Senior Associate Judge. DUFFY, Senior Circuit appeal conviction of This follows a federal for violation * designation. sitting by S. Court of Claims R. Durfee U. James Senior Associate was which had been firearms laws.1 Defendant Wilson issued the name of years’ im- term of three William Without sentenced for a Kotinas. further collo- quy, prisonment. Officer Williams commenced a com- plete search of the of defendant principal us issue before Wilson. the sawed-off whether “pat-down” by After indictment was the basis Officer Wil- by police liams, dur- pocket which was found officers he reached into defendant’s ing had Express for which a warrant and removed search an American Cred- by previous procured, proba- been police was tainted Card which later was used as a securing uncov- action and conduct which ble cause basis in war- a search forming probable ered evidence rant for the automobile which defendant driving. cause for the issuance basis was Defendant then told was by po- search warrant. one of the officers to follow lice car in his own vehicle the Salem the constitution- Defendant contests County jail, which he did. during ality police tactics and conduct police re- trial, his initial encounter with spect At the Officer Williams did tes- Express tify to an American Credit that his search of defendant was per- (Williams’) Card which extracted from his protection. was for his own by Trooper one However, “pat-down” son Williams. had not re- potential weapon any vealed a in nothing of Wil- January 21, 1971, On Wil- defendant pockets. son’s There was driving son was on Inter- an automobile suspect radio bulletin to indicate was Highway 57, Salem, state Illi- south dangerous. Furthermore, apprehen- nois, approximately at ten o’clock sion occurred at ten o’clockin the morn- morning. stopped by Defendant Il- ing police squad with three officers and Trooper linois State Williams at a loca- present. cars highway tion on the oc- where two other cupied police positioned. cars were message by The first radio received Trooper Williams the trial testified at Trooper Williams was based a tele- that the sole basis this detention of phone police statement authorities defendant was a radio bulletin which by Mayhaus one who assistant previously had heard over his radio manager stop highway of a truck on the male, which stated that a “colored had purchased gasoline defendant where possession Express in his an American attempted purchase other articles credit card which was stolen” and was Express with an American credit card. driving a red 1970 Ford Torino with gasoline A clerk in- at station plate certain license number. purchases formed defendant that government concedes fact by $25, made use of the card exceeded any defendant had not violated laws, traffic the card must be verified with the precise or at this time was there Express American Division of Texaco. any other deten- known reason for his telephone Defendant then talked on the except tion for the aforementioned with tion, but after a short conversa- Texaco by formation received means of the ra- hung up phone the defendant dio bulletin. making any and left the station without Upon being stopped by police, purchases. de- additional opened fendant Wilson his car door and Mayhaus testified that when he called left his automobile. He met the officers Express the American of Texa- Division mid-way about between the assembled inquire validity co to about the automobiles. card, he talked to some unidenti- request Trooper Williams, person At fied and unknown informed produced defendant license him a driver’s the card had been stolen. 5861(d), 5871, possession unregistered

1. 26 U.S.C. of an § firearm. § searching giv- not warranted Mayhaus his contacted then specific ing known to the offi- formed facts them this information There- at the cers roadside detention. of the radio bulletin. basis action, contends, fore, such County the Salem After arrival self-protec- impermissible under the investigating jail, received officers Terry Ohio, 392 tion rationale of the ef- radio another communication (1968) 20 L.Ed.2d 889 presented license fect that driver’s York, 40, 88 v. New Sibron from a defendant had been taken University policeman in Illinois govern- theory purported by the robbery. incar- armed Defendant was justifying alleged at the his message ment after this second radio cerated possessed req- they roadside had the officers. been received arrest, cause basis uisite Only the defendant had driven after ensuing of his and therefore the County jail accompanied car Express person producing American squad cars the officers their arrest. card was to that incidental the second radio communication after officers, determining propriety by the of such In had been the received search, probable given the a Fourth Amendment defendant his Miranda warn- ings requirements present. jailed. must be cause decisions, Supreme Court the U.S. recent Following incarceration, Wilson’s ju imperative that a it is held that signed Trooper Complaint for Weems a opinion supplied with sufficient dicial be of a for the search the search warrant independent support an information to driving. The motor vehicle Wilson probable judgment exists for cause that Complaint that the officers indicated warrant, before arrest a search an cards, “looking pa- were for other credit Whiteley v. may issue. warrant such a belonging may pers, which be stolen 1031, 560, Warden, 28 91 S.Ct. 401 U.S. Chicago, Illinois”. William Kotinas S., (1971); Spinelli v. U. 306 L.Ed.2d probable The signed cause was certificate 584, 410, L.Ed.2d 21 U.S. (1969); 89 S.Ct. 393 magistrate. by officers a Ventresca, v. United States 637 vehicle then the defendant’s searched L.Ed.2d 85 S.Ct. bag in the a duffle and found Aguilar Texas, (1965); v. 684 108, the rear the automobile. 12 L.Ed.2d 723 suppress evidence A motion (1964). respect the was denied oth- to trial as were District Court that a re law now settled post-conviction er for defense motions considering police viewing Court, a relief. probable cause in criteria for officer’s arrest, effecting argues search or government a appeal, warrantless Upon stringent apply stand a no less should was made state arrest prel magistrate as a a than ard would troopers at occurrence of Wilson’s of a warrant. apprehension highway. ude to the issuance on supra; Whiteley Warden, United v. if he was ar- Defendant insists that Aguilar supra; Ventresca, States v. officers, by police highway on rested supra; Texas, Jones subsequent search were arrest and constitutionally impermissible for es- probable a sential information for cause lacking. basis action was for such elementary it is Conversely, and searched if the arrest was not made detained officers who jail must have roadside until the ac- at the arrival defendant the defendant by police officers, to form companied Wilson information had sufficient argues a appeal probable for issuance on the intrusion of basis cause detaining warrant, and ar- him or the roadside officers ery officers, rest of must deemed Wilson be constitu- the credit card tionally impermissible. “. is axiomatic that an inci- precede dent search not The total available to information part justification.” as of its and serve apprehen- officers at of their time supra, York, Sibron v. New 392 U.S. at sion of radio com- the defendant Thus, page 63, page 88 S.Ct. at munique headquarters from on based a justified search cannot as inci- phone Mayhaus from as- call Mr. dent to a lawful Chimel v. arrest. Cf. that he had serted believe cause California, description pos- person of defendant’s 23 L.Ed.2d 685 sibly possessed a stolen credit card. possessed basis of the information arresting offi We hold that Mayhaus supplied by had uni- been cer did to arrest cause dentified in the Ex- American the radio the defendant herein because press Company. Division of Texaco Oil inadequate relied on bulletin With this information basis independent arresting no officer had actions, troopers their the three state alleged information corroborate viewing justified, upon felt car facts stated bulletin. description phone recited in the call and argued by hypothetically defense As subsequent stopping bulletin, radio justi- possible appeal, counsel on another conducting the car and a full search fication seizure defendant. card Whitely Warden, sUpra, the Su a lat- supply probable arrest at cause for preme Court held a warrant that where a detain least to er time or at the excuse applied a could not local sheriff excep- self-protection defendant finding support probable cause, a an Ohio, Terry su- in allowed tion first arresting officer time at different and a succeeding distinguished pra, in the but location, absent corroborative additional supra. Sibron, case of tending evidence the in to substantiate tip, exception Despite to former's could not effect a constitu this require- tionally permissible search and arrest. Amendment warrant Fourth supra, corroborating Terry, Su- The additional informa in ment found to, by, that in quite tion available the ar clear preme or known made Court resting intrusion, coupled justification officers the suffi with such an spe- ciency tip . . police an “. informer’s must be officers must show facts, adequate probable taken which 'cause basis for a war articulable and cific together rant to or incident inferences issue and rational the arrest reasonably constitutionally facts, that search are warrant defective fol those lowing holding Supreme page (392 88 S.Ct. in Court’s at trusion”. Whitley. recognize need 1880). page We at protect- police in action for affirmative opinion We are of the it is still a security contem- ing personal their requirement report that an informant’s Terry, in Supreme Court plated be “made from direct observations that opinion supra. we But are personal knowledge”. United States exception can- Amendment Fourth this Squella Avendano, 575, 581 447 F.2d render- bar at applied the case not be (5th Cir., 1971). constitu- ing defendant search case, specific tionally In this valid. Mayhaus is obvious that Mr. had no dan- respect personal knowledge facts with articulable that the credit card de- or defendant gerous nature report was stolen. His on a was based re- committed crime telephone violent picting a call to an unidentified not were cently personal himself could no have had knowledge present. that the card was stolen. informa- no Assuming arguendo received police had The that armed. suspect was cause for arrest the discov- tion existed transgressed violating the limitations laws which traffic not defendant was police Fourth Amendment. There a noth- stopped. There was when was ing suspicious he pocket of the de- he officer lifted from a in his conduct government fendant, troopers; he cheek enclosed detained envelope. presented him- promptly his car left daylight. in broad officers self respect to this is- In summation with police Three alone. The defendant was sue, theory no on there is present. noth- officers were ing be sus- search of defendant can Wilson suggests in the record exception the Fourth tained as an fall with- of the defendant requirement. As Amendment warrant Terry exception. Supreme the spect Court has stated with re- re- to this Fourth Amendment Sibron, supra, police officers Coolidge quirement recently most defendant, approached Sibron, in a 454-455, Hampshire, New step outside. restaurant and told him him and He did so. An officer followed reiterating (1970) their statement from pocket and into thrust hand Sibron’s 347, 357, Katz v. United containing envelopes therefrom removed (1967), L.Ed.2d 576 Supreme heroin. Court held “ . searches conducted outside this search was in violation of judicial procéss, ap- without Fourth to the United States Amendment per proval by judge magistrate, are evidence such Constitution and Fourth se unreasonable under suppressed. must be subject only spe- to a few Amendment— page supra, Sibron, at cifically and well-delineated established Supreme page exceptions.” The facts in the ease. at Court stated: present not where one bar do a situation entitled to officer is exceptions “The exists. these every person whom seize and search searching into hold the act of de- We or whom on the street he sees pocket pat-down when the did fendant’s places a inquiries. Before he makes weapon potential in that not reveal a pocket, citizen person of on the hand elsewhere, constituted con- anything, must have he search of stitutionally beyond scope permissible con- search the adequate, reasonable stitutionally for in searches allowed grounds doing In so. case for weapons. weapons, self-protective for search argues our Defendant before particular point to to he must be able evidentiary product that Court reasonably in- he facts from which search, to determined have which we armed individual was ferred that the securing the illegal, for basis be dangerous.” disclosing the to car warrant search his (392 The Sibron Court further stated object shotgun, for which 65, page 1904), page at at 88 U.S. S.Ct. asserts, Therefore, defendant convicted. assuming arguendo that there “Even discovery illegal of the for” the “but grounds adequate to were search Sibron probable served as card which credit weapons, scope for of the nature and complaint for and is cause basis for the search Patrolman Martin conducted car, for his of the search warrant suance justifi- clearly were so unrelated to that secured not have been cation as to the heroin inadmissi- render that the contends He thus as evidence. ble.” sub uncovered evidence of the illegal tainted upon sequent search was rely We also a decision this to Wong holding poisonous tree.” “fruit of Court to substantiate our herein. 471, 83 371 U.S. Foust, United 461 F.2d Sun v. United v. States (1961); 328, (7 1972) Silver 441 Cir., 9 L.Ed.2d and S.Ct. we considered States, 251 held seizure thorne Lumber Co. v. unlawful a search and 1296 “ . reason- there existed a 319 385, 392, 64 L.Ed. U.S. improperly ad- possibility able the con- to evidence contributed mitted argu- agree the defendant’s We Florida, State Schneble viction”. ment. L.Ed.2d 92 31 S.Ct. Supreme Court’s is the Pertinent California, (1972); Chapman 386 supra, Wong Sun, statement 824, L.Ed.2d 705 S.Ct. page 417: 487-488, pages at at California, Harrington (1967); that all evidence not hold need “We 250, 254, simply be- tree’ poisonous ‘fruit of the light not have come it would cause dis- For the reasons hereinbefore po- illegal of the actions but for cussed, judgment District of the apt question in Rather, the more lice. Court granting es- ‘whether, such a case is Reversed. illegality, primary of the tablishment objec- instant to which the evidence Judge (dissenting). PELL, Circuit by ex- at come tion is made been my opinion, credit card the stolen illegality ploitation or instead of that police officer taken the state distinguishable sufficiently by means during the course of a lawful primary purged taint’.” cident lawful based bar, evident In the case at supposed Since cause. for warrant complaint the search police activi- roadside taint of the initial car, the tainted evidence Wilson’s essence, ty is, in basis for the result said as the basis card served majority opinion, I must reached in the the evidence warrant. follows opinion. respectfully dissent from that shotgun forming the the form police officer it is true that While herein, was for the indictment sole basis original testify search was did that the exploitation from the discovered protection, motivat- for the officer’s own ing illegality not the conse- necessarily lend them- do not factors independent source quence of some eompartmentalization. No selves to neat detection.2 officers, aware most doubt opinion that we are of the either been of their some brothers failing during the District Court erred course of or killed wounded grant suppress are, encounters, the defense motion to least in such roadside shotgun. determination, From this con- suffer part, a desire not motivated sequently, possession the conviction for a similar fate. illegal shotgun must be reversed stopping However, prior to his Wil- statutory for it vio- was the basis of the son, particular police be- officer had charged lation in the indictment. knowledge specific possessor of the come answer- individual to the effect that an argues The if Government even general description ing and Wilson’s ruling

the District in Court erred driving was the automobile Wilson denying suppress defendant’s motion to driving possession a in his in had fact shotgun poisonous as “fruit of a credit card. stolen tree”, such error was harmless. We disa- gree. obviously stop not did inclusion of into The officer any of evidence of motivation was the in- entire basis Wilson because elementary self-protection. dictment. As far as he knew it is knowledge gained any leading from Neither was the information to clue or discovery unlawfully Oil seized.” Standard items 1171, Iowa, “independent rendering F.2d 1177 source” of 408 evidence Co. v. State Wong (8 1969). in See Durham United admissible certain situations. Cir. 1968). (9 Sun, 190, supra; States, 196 Cir. F.2d nor was the evidence ob- tained authorities “without resort to marketplace. present-day time, specific existed for We would no reason closing clearly predi eyes be stop our to the of realities action. The such practices relating sto modern about the commercial on the information cated deprived widespread credit use of cards—real- credit card. Wilson len significant judicially properly in ities which should freedom of a action cognizable accomplished. ignore way and an we were to the ex- arrest was —if Arizona, 436, thievery consequent tent of 384 U.S. See Miranda v. abuse 1602, are all 16 L.Ed.2d cards. We familiar with the store clerk who checks a credit card 38, Chapter 107-2(c), Ill. subsection against prepared by number a list a Rev.Stat., 1969, peace that: “A states anonymous equally nameless clerk or an person officer when: arrest computer showing credit cards that are grounds (c) . . reasonable He has not to be honored. person . to believe that years recognized committed an many offense.” For we have reliability of records made ap majority opinion The crux of the regular course of business and have ac- pears to did be that the officer not have cepted such records into evidence for grounds, or, putting reasonable it anoth their truth. 28 1732. I find U.S.C. § way, Whiteley er in reliance on v. War analogy this no far-fetched to the den, 28 L. S.Ct. present manag- situation. assistant (1971), Ed.2d 306 ing officer hav using procedures er was the established independent knowledge, personal no the detection nonviable credit the information from sufficiently not others was cards, and, result of the use trustworthy reasonably regular procedures those course Spinelli constitute cause. business, par- of his learned that the States, ticular card stolen. had been This (1969), 21 L.Ed.2d Brine through formation communicated gar v. United regard- specificity channels with 93 L.Ed. 1879 ing possessor. Reasonable cause ex- however, my Whiteley, opinion occurred, isted for the applicable nothing not here. There was part search was made in incidental reflected in the record there as very locating purpose for the the sto- reliability of the informer who len credit card. leading processes fountainhead of the Any procedure more cumbersome eventually to the issuance a warrant mobility coupled of indi- and the arrest. The record the case misusing viduals credit cards would before Whiteley. us differs from that in that, practical purposes, mean for all A individual, known the assistant man- apprehending chances the misuser ager stop of a truck where Wilson had virtually would be so minimal as to be purchased gasoline, called had the Amer- nonexistent. insistence An Express Company ican and was in- person” at “unidentified the American formed that the card was Al- stolen. Express issuing Company any other though identity company knowledge personal whom he talked Express at American impose impossi- theft would a condition indicated, do violence to ble to meet. reason assume that the assistant arrest, Following contin- Wilson manager’s calling telephone number custody. pursuant Thereafter, ued in very that he purpose, had for this some shotgun warrant, a search the sawed-off interloper would come on the line Although it is true that was discovered. purport speak on behalf of the credit specified in the card issuer. (de- warrant, that contraband it is clear point, possession me, fined seems item the an cognizance we must crime) take seized conditions itself is a legal Harris v. search. course Cf. (1947). The 1098, 91 L.Ed. ba- which formed

sawed-off ease is

sis of offense instant contraband. See 5861(d), U.S.C. §§ In United and 5871. States 1970), (9th

Dickey, Cir. 428 F.2d possessing conviction for defendant’s affirmed, unregistered firearm during gun

where had been seized upon a

the execution a search based discovery for the search warrant issued marijuana. forth,

For the herein set I reasons judgment of conviction

would affirm the Wilson, obviously guilty of charged, possession an un- crime registered firearm, obviously not a

sporting weapon primarily one asso- but purposes.

ciated with lethal I must also present

observe that situa- factual particularly

tion is one of those which is

frustrating to law enforcement officials.

Here, police very carefully refrained although automobile, searching easily

it was accessible at the sta-

tion, judicial until a warrant could be

obtained. al., Appellants,

George KRASNOV et S. DINAN.

Brendan

No. 72-1337. Appeals,

United States Court Third Circuit. July 11,

Argued 1972. Sept.

Decided

Case Details

Case Name: United States v. Thurlester Wilson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 7, 1972

Citation: 465 F.2d 1290

Docket Number: 71-1764

Court Abbreviation: 7th Cir.