*3
containing
Watson,
Mr.
and billfolds
BREITENSTEIN,
Before
HILL and
Mur-
identifications
Willie
SETH,
Judges.
Circuit
ray
Murray.
and of
Willie was
photograph in his
identified from a
bill-
BREITENSTEIN,
Judge.
Circuit
April,
fold as
before
worked
This case is
before us on
now
a re-
janitorial
for the
which cleaned
service
mand from the
Court of the
night.
provided
the bank at
He had been
opinion
our
States.
first
key
a
he worked
the bank while
there.
Murray
we held that
Willie
standing
object
did not
have
to a
county
A
then went to Kan
detective
search which resulted in
the seizure
City, Missouri,
sas
and enlisted
aid
him
at the trial.
arresting
police
in
and
there
Willie
Murray
Cir.,
See
Henry.1
accompanied
two Kansas
which was
apparent
officers
stamps
Mis-
cal evidence
used at the
marks made
breaking
entering
showed
bank.
sion
taking
of the bank.
Albert,
Willie,
Thomas were
and one
question
had rea-
is whether
for violations
indicted
federal court
connecting Henry
grounds
sonable
for
(b). An
2113(a) and
of 18 U.S.C. §
with that crime.
appropriate
Rule
motion
under
was made
F.R.Crim.P.,
41(e),
suppress
evi-
giv
first be
Consideration must
dence obtained
the search
en to the search
Pontiac. Between
objec-
trial
motion was denied. At the
day
2:00 and 2:45
A.M.
tions to the introduction
evi-
burglary
patrol
an officer on cruiser
and Thom-
dence
overruled. Albert
spot
passed
car
where the
acquitted
was found
as were
Willie
parked and
*4
found
ear was not there.
the
charges
jury.
guilty by the
No federal
later saw the car at about 4:30
He
against Henry
state
made
but
were
reported
in
4:45 A.M. and
to officers
charges
and
were filed
him
later
vestigating
burglary. They checked
the
dismissed.
Missouri
told that
the
and were
license
validity
it had
of
been issued to a Ford. These cir
The constitutional
plus
burglary
nearby
subsequent
of the
cumstances
the
the
and
seizure
search
grounds
in
money depends
were reasonable
for
further
va
a
vestigation
They
Henry.
of the
lidity
This in
found the
arrest
car.
of
engine
keys
officers,
depends
warm and
on whether the
saw
turn
they
arrest,
probable
floor. The situation
that
of
had
was such
moment
justified
examining
glove
de
cause
to make it. Probable
cause
pends
compartment
they
moment
on whether at
that
found the bill
where
offi
and circumstances within the
Henry.
facts
of
folds Willie and
believe
We
they
knowledge
had
and of which
cers’
prudent
that a
man would have acted as
reasonably trustworthy information were
the officers did.
prudent
inman
sufficient
to warrant a
promptly
Willie was
as
identified
a
believing
Henry
that
had committed
employee
janitorial
of
former
service
committing
Here the
an offense.5
was
bank.
shown
addresses
investigation
pursuing
officers
registration
on the car
and in
bill-
felony,
burglary,
it was
bank
and
City,
folds were
Kansas
Missouri.
necessary
offense be com
not
that
investigating
told a detec-
only
presence
that
mitted in
from
local
tive
sheriff’s office what
they
that
had
cause to believe
reasonable
they
had found.
went
The detective
guilty
felony.6
Henry
The Su
was
a
City
the Records Bureau of the Kansas
preme
“The rule
Court has said:
Department
Police
and found that Hen-
practical,
probable
a
non-tech
cause is
ry
previously
been arrested
affording
conception
com
best
nical
McKinney.
then went to
Detective
for
promise
has
found
ac
that
been
Robbery
Mc-
Bureau and asked that
* * *
commodating
opposing
often
assigned
Kinney
help him.
Mc-
interests.”
Kinney
City
and another Kansas
detec-
accompanied
Two factors
a deter
enter into
Kansas
tive
detective
probable cause,
Michigan
mination
the commis
to the
address
Avenue
where
McKinney
Henry
of a criminal
and the iden
sion-
offense
arrested
and
Albert
tity
person
perpetrator
of that
heretofore
the circumstances
related.
91,
Ohio,
160,
Brinegar
5.
State of
Beck v.
v.
United
223, 13
85 S.Ct.
L.Ed.2d 142.
69 S.Ct.
93 L.Ed.
v.
6. Carroll
156-157,
45 S.Ct.
The two were taken to the
station.
the search because
Shortly
premises.
at-
after their arrival
there an
his connection with the
torney phoned,
station,
relationship
then came to the
had the same
to the
for about 45 minutes
talked to them
as did
to search and
Willie.
presence
officer. Extra-
out
as an incident
to a lawful arrest
seize
things
dition
was waived and Albert
“extends to
under the accused’s
**
* and,
were taken to Kansas.
immediate control
to an
depending
extent
on the circumstances
something
Probable cause is
case,
place
ar-
to the
he is
where
suspicion8
than
and some
mere
more
12 In
rested.”
the circumstances here
thing less than
which would sus
presented, we
that
the search of
believe
tain a
Probable
conviction.9
cause
the bathroom was reasonable.
probabilities.
concerned
As the Su
part
Brinegar
search
revealed
Court said
fruits
the crime.
The fact
69 S.Ct.
subsequently charged
technical;
was not
1310:
“These are not
only
arp
practical
federal offense is immaterial. The
the factual and
considera-
objection
everyday
made to the
life on which reason-
tions
illegal
prudent men,
claim of an
not
techni-
search and seizure.
able
cians,
probative
All facts
rational
act.”
us
value
before
investigating
specific
are admissible
local
a fel-
unless some
rule
officers were
ony
just
forbids.13 Here no rule
which had
been committed.
forbids
*5
product
They
thorough
of
in
the search and
was
but restrained
seizure
properly
They
“reasonably
in
received
actions.
acted as
evidence.
prudent” men,10
discreet and
and used
Affirmed.
judgment.
sober
Their
was
conduct
properly responsive “both to the needs
SETH,
Judge (dissenting).
Circuit
liberty
rights
of individual
and to the
By reason of the remand to us of this
community.”
opinion
In our
by
Court with
di-
Henry
arrest of
was lawful.
rection that
it be
reconsidered
ref-
person,
to
erence
of
arrest
a third
The search was incident to the
regarded
we must assume that the Court
Henry
lawful arrest of
and was made
appellant’s relationship
prem-
to the
immediately
The
thereafter.
arrest oc
ises searched to be such that he had
curred
the door of a second-floor
standing
object
to the introduction in-
apartment
previously occupied
then and
objects
of
The evi-
seized.
by Henry
per
and his brothers with dence with which
arewe
here concerned
parents,
of their
mission
owners of
during
prem-
was seized
a search of these
building.
was found un
ises. For want of a better term to refer
by
der the floor of a hall
bathroom
premises
appellant,
to the
in relation to
occupying
those
the second floor. The
“protected.”
will be referred to as
only
occupant
other
of the second floor
was Thomas who was indicted with
of
Willie
constitutional
protected premises
and acquitted. The
use
the bathroom as to the
course
permission
personal
may waive,
was either with
he
one which
parents as owners or of the tenant Thom
no contention is made that
did so.
he
government argues
as. We take
action of the
that
he
instead
holding
right by
Court as
that Willie had stand-
lost the
an event over which
Mallory
States,
449,
Ventresca,
8.
v. United
354 U.S.
11. United States v.
1356,
454,
102, 112,
741, 748,
77 S.Ct.
L.Ed.2d 1479.
L.Ed.2d
85 S.Ct.
684.
States,
9.
v. United
168,
364,
80 S.Ct.
L.Ed.2d 134.
12.
v. United
U.S.
Preston
881,
367,
883, 11
84 S.Ct.
L.Ed.2d 777.
Husty
Wigmore
ed.,
Evidence,
L.Ed. 629.
51 S.Ct.
13. 1
on
3d
recognized
control,
took of such stature as to
had no
and which
be
place
premises
a fundamental
as in Harris
in his absence
one
on the
knowledge.
apparently
This United
without his
67 S.Ct.
person,
L.Ed.
it is difficult
the arrest
another
event was
Henry Murray,
by
appellant.
A
understand how it could be lost
such
brother
made which a
of circumstances
thereto was
combination
unrelat-
search incident
prem-
protected
appellant’s part,
thoroughly
ed to
on
action
covered
completely beyond
all
his control.
and resulted
the seizure
ises
question. This arrest at the
evidence
particular
respects
The circumstances are
some
place
of chance
was a matter
related to the cases concerned with a
the whereabouts
determined
given by
consent to search
another mem-
person
time of his arrest.
at the
arrested
family
or
ber
the accused’s
with con-
Murray
on
The arrest
one
or
cotenant
sent
co-user
proba-
premises
have been
or
other owner of an interest
cause,
to such ar-
the search incident
ble
rest,
premises.
many
con-
such cases
its
as to
ex-
and the search
sent is found to
as to the
be effective
rights
ap-
tent,
but the
accused, but the decisions
on
are based
upon
pellant
or fall
should not stand
voluntary
per-
nature of the act
to him.
unrelated
such circumstances
They
“supervision”
son
with “control” or
depend upon
whether
should not
property.1 In
before us
the case
place
of arrest
voluntary
by anyone
no
there was
act
elsewhere,
premises
wheth-
or
prop-
who
connection with
illegal.
It is
arrest was
er the
erty. Henry Murray’s
in the
arrest
appellant has
questionable whether
even
building
any-
indicates no consent to
standing
his brother’s
to assert
that
thing,
fact
that
illegal
rights
by an
arrest.
violated
protected
would be
also as to him
not
does
argument
government’s
alter
the situation because reliance is
crime, as
fruit of a
once
here,
or the
upon any
arrest alone and not
volun-
which
in a manner
has been seized
*6
tary
government’s
acts. Under the
the-
thereby
person it is
as to
is
ory
just
well
the arrest could
as
have
everyone regardless of
legally
as to
seized
stranger.
complete
been of a
relationship
premises or
universally
certainly
is
events. This
legality
ap-
seizure as
position,
recognized and a time-honored
rights
pellant, and to his
should be the
inconsistent
result
thereof
but
determining
ob-
factor.
made
substance
existence of
jection to the
been
rights
the Su-
which
rights.
seized in
violation
his
exist. There
Court found to
action,
party
he
is not a
in this
recogniz-
purpose in
no
real
would
prosecuted, and
was not
whether
easily
lost
if
can be so
them
of his
seizure was was not violation
the acts of others.
rights would not
a sufficient
seem be
appellant’s
pro-
for a decision as to
to be
basis
rights.
If the
unreasonable searches
tected
Commonwealth,
Ky.
Cir.);
example
Morris
v. United
v.
see Roberts
For
58;
Shambley,
Cir.)
People
States,
(8th
S.W.2d
38,
v.
where