believes that a particular person has committed a crime, but lacks probable cause for his belief, he cannot give probable cause to another officer's conduct merely by relating his suspicions to him.
If the inside officer's statement is removed, the arresting officer could not have had probable cause upon which to base his arrest. Indeed, he would never have even seen the two men after his initial encounter with them, since it was the inside officer's statement which acted as the catalyst and sent him on the chase. Where, as here, another officer's statements constitute a vital ingredient to the arresting officer's probable cause, the informing officer's basis for making them must be carefully scrutinized.
It will be recalled that the inside officer was not told by the teller or by anyone else that there had been a holdup attempt. Had he been so advised, there would, of course, be no question as to his probable cause for arresting and searching the two men himself, or for being assisted or having it done by another officer. Such a statement from a responsible source would alone be sufficient to support this action. However, we do not have that here. In this case the officer did not even hear the words of the teller, and even if he had it is doubtful that they alone would have been a sufficient basis for arresting or searching the men. The teller testified that she merely said that she believed "something was wrong," and even this was after the defendants had already departed.
This then leads us to an examination of the events which occurred inside the bank prior to the arrival of the arresting officer.
On the surface it appears entirely reasonable for one to enter a bank during the Christmas shopping season, laden with Christmas shopping bags, only to find that it is too crowded to remain until served. Even the fact of one's companion waiting by the door instead of at a less suspect location can be explained away by considering the privacy that one ordinarily desires in transacting his personal business. No words passed between the defendant and the teller. He did not demand any attention from her and it is arguable that he either failed to see the sign when he approached her counter or that he did so only to acquire information. All of these possibilities have been seriously considered by this Court in arriving at its decision. However, they must be recognized for what they are; namely, mere possibilities.
It is impossible to duplicate exactly the events which form the basis of probable cause. Especially is this so in a case such as this. Something is always lost in the translation; the expression on the parties' faces - fear, anxiety; their behavior in general. The cold record cannot reflect sense impressions: of furtive glances in the direction of the policemen; or of a suddenly quickened pace. Courts are not clairvoyant and there are few absolutes.
However, fortunately we are not entirely without guides. In the words of Mr. Justice Rutledge, "[The] rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found * * *." between preserving freedom from "rash and unreasonable interferences" and "enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). "Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their probability."
Without regard to the fruits of the search, we do not believe that such a mistake was made here. An officer need not await receipt of evidence which, by itself, would be competent evidence in a trial to determine the defendant's guilt or innocence. Such a contention "'goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for an arrest or search. * * *.'" Mr. Justice Frankfurter in Jones v. United States, 362 U.S. 257, 270, 80 S. Ct. 725, 735, 4 L. Ed. 2d 697 (1960) quoting from Brinegar v. United States, supra, 338 U.S. at 172, 69 S. Ct. 1302.
In the case before this Court two men walked into a bank. One remained by the door and, according to the testimony, continued to look from time to time outside the bank. The inside officer, who had been engaged in his work for two years and gave every appearance of being an expert in his field, testified that the pair looked suspicious to him even before they hurriedly left. When the police car pulled up in front of the bank the defendant's companion motioned for him to leave, and they both made a hasty exit. Simultaneous with or immediately after their departure the bank teller said something to the officer which, in the excitement of the moment, was not understood, but which unquestionably referred to the two men and further buttressed his conclusion that they had entered with the intention to rob the bank, a crime in itself. 18 U.S.C.A. § 2113(a).
The indictment in this case is for conspiracy to rob and for entering with the intention to rob a federally insured bank. Under the facts as related it is the judgment of this Court that the inside officer had probable cause to believe that the defendant and his companion had conspired to rob the bank and that they had entered for that purpose. He therefore could have arrested and searched them before they left the bank. The fact that their hasty departure made this impossible does not detract from his probable cause for believing that a crime had been committed, and thus his statement to the arresting officer was based on probable cause duly formed.
And now, to wit, this 3rd day of March, A.D. 1966, for the reasons stated above, it is ordered that the defendant's motion for suppression of evidence be and the same is hereby denied.
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