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March 3, 1966

Ernest Joseph BOSTIC, Jr.

The opinion of the court was delivered by: LORD, JR.

 The defendant stands charged in a two-count indictment with violating the provisions of 18 U.S.C.A. ยง 2113. Specifically, it is charged that he and a companion did unlawfully (1) conspire to rob a federally insured bank; and (2) entered said bank with the intention of committing larceny therein. The offense is alleged to have occurred in Philadelphia, Pennsylvania on or about December 2, 1965.

 The matter is now before this Court pursuant to the provisions of Rule 41(e) of the Federal Rules of Criminal Procedure which permits

"[A] person aggrieved by an unlawful search and seizure * * * [to] * * * move * * * for the return of the property and to suppress for use as evidence anything so obtained * * *."

 At the hearing the testimony revealed the following facts. On or about December 2, 1965 at 2:55 P.M., the defendant and a companion entered the West Philadelphia Branch of The Citizens Bank, located at 5513 Chester Avenue, Philadelphia, Pennsylvania. The parties wore similar outer garments, light colored trench coats and white caps, and each wore glasses. The defendant carried multi-colored shopping bags in his left hand, presumably the type frequently seen during the Christmas shopping season.

 Upon entering the bank the defendant, without stopping at any of the utility desks provided for the customers' convenience, walked directly up to a teller's window and placed the bags on the counter. His companion remained at the door of the bank, looking outside from time to time. On or in front of the window that the defendant approached was a sign indicating that this particular window was closed, and directing customers to the next available teller. The young lady behind the window testified that when she saw the defendant she was balancing the day's receipts; that the defendant said nothing to her but that she felt something was amiss. She testified further that she left her position at the window to advise her immediate superior of her suspicions.

 At this precise moment a police car pulled up in front of the bank, and an officer alighted from it. There is some controversy as to whether at this point the defendant's companion motioned to him to leave, or whether they simultaneously decided to remain in the bank no longer. In any event, it is undisputed that upon the arrival of the uniformed policeman the defendant and his companion left the bank hurriedly.

 The entire incident was observed by two policemen inside the bank, referred to in the briefs and at the hearing as "stake out men." Their purpose in being there was apparently to provide added security in view of the increased banking activity generated by the approaching holiday season. One of these officers testified that as the defendant and his companion were leaving, the teller - from some unspecified distance - said something to him regarding the two men. He testified further that this, coupled with the above described circumstances, led him to believe that there had been an attempted robbery. The uniformed officer also testified that the two men looked suspicious as they were leaving the bank, but that he declined to stop them at that time.

 Immediately upon entering the bank, the officer was told by the inside policemen to stop the defendant and his companion in that it was believed that they had attempted a robbery. He gave chase instantly and after some interlude not here relevant succeeded in stopping and searching them. It was at this time that the pistol now in question was discovered on the person of the defendant. Upon stopping the two men, the arresting officer observed a shotgun lying on the ground a number of feet distant from the men. They were at this time searched and taken into custody. There appears to be no objection with respect to incriminating statements or the appointment of counsel, and our inquiry is thus confined to determining whether probable cause existed for the search.


 There are very few questions regarding probable cause that are easy to resolve. Certainly, this was not one of them. After prolonged deliberation, however, it is the judgment of this Court that the answer to the question of whether the arresting officer had probable cause turns on whether the inside officer himself could have lawfully made the search and arrest.

 Assuming that the inside officer did have probable cause to make the search and arrest if he chose to do so, it is clear that the conduct of the arresting officer was well within the Constitutional limitations placed upon his office. He was told by fellow officers, whom he knew to be inside men, that there had been - or at least that it was thought that there had been - an attempted robbery. The exigencies of the situation did not afford him the luxury of prolonged reflection, and it was not his place to pause and ponder the question of whether his fellow officers had probable cause upon which to base their conclusion. He himself had observed the two men as they departed from the bank, and he testified that their demeanor invoked his suspicion. Moreover, when he returned to the street from the bank some anonymous passerby called his attention to the fact that the two men had fled.

 Despite the revolutionary changes wrought to criminal procedure in recent years, flight or the attempt to flee remains as both a common sense and a legitimate legal ground for inferring guilt. See United States v. Heitner, 149 F.2d 105, 107 (2nd Cir. 1945) and the numerous citations contained therein. The suggestion in Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) to the contrary is inapplicable ...

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