The opinion of the court was delivered by: DAVIS
The defendants in this action are charged with conspiracy and with the robbery of the Cheltenham Branch of the Fidelity-Philadelphia Trust Company on October 18, 1965 in violation of Title 18 U.S.C. §§ 2113(a), 2113(b) and 2113(d). The matters now before us are their motions for suppression of evidence, for severance, and for dismissal of the indictment.
Pursuant to these motions the Court held a hearing to ascertain the facts surrounding the arrest of the defendants and the seizure of evidence.
At about 3:00 o'clock in the afternoon of October 18, 1965, a Lieutenant Castellucci, an off-duty policeman, was sitting at the counter of a Howard Johnson restaurant in Ridgefield Park, New Jersey, having something to eat. He observed two men enter and sit at the counter only a short distance from him. One of them was the defendant Crehan. They were dressed in casual clothes with Crehan wearing an expensive looking "golf sweater" and sport shirt. They conversed very little, had a tendency to be "fidgety", and were constantly looking out of the window. The Lieutenant heard one of them say, "He should be here soon." After about fifteen or twenty minutes, the defendant Margeson entered the restaurant and approached the two sitting at the counter. They seemed less uneasy when he appeared. He had a small "drug store type bag" with him, which he placed on the counter, and within a short time, Crehan got up and walked out with it. He entered his car, made a U-turn, and stopped in front of the office of the Howard Johnson Motel which adjoined the restaurant. The Lieutenant was able to record the license plate number of his automobile.
Shortly thereafter, the third individual, Kadra, got up and walked out, leaving Margeson alone. Two or three minutes later, he returned, whispered something in Margeson's ear, and the latter passed him something which sounded like a string of keys. He then left the restaurant.
At this point, Lieutenant Castellucci, being an off-duty policeman from a different municipality, decided to call the local police and inform them as to what he had observed. His suspicions had been aroused when he first saw Crehan and Kadra sitting at the counter in their casual but expensive attire. The subsequent demeanor and conduct of all three increased these suspicions. He had not seen them commit any crime and did not know what they were doing, but he was convinced in his own mind that something was wrong. He thought they might be bookies or maybe dope peddlers, especially when one of the men had passed a small bag to one of the others. However, he readily admitted that his thoughts were based only on a "sixth sense," a "pure hunch."
After giving the Sergeant all the information he had, the Lieutenant left the scene and had nothing further to do with the events that subsequently unfolded. The Sergeant, for his part, checked the Motel register to determine if the car allegedly belonging to Crehan was registered to one of the guests. He learned that it was listed under the name of a James T. Grant in Room 45.
Returning to police headquarters, the Sergeant checked the stolen car alarms but nothing appeared on this vehicle. He then made a short report and discussed the entire matter with his Chief, Elmer J. Thompson (hereinafter referred to as the "Chief"). Three factors led them to their decision to investigate the matter further: first, that very room had been the subject of a narcotics raid some months before secondly, they felt obligated to check out a situation which a police officer from another jurisdiction had thought suspicious enough to call to their attention; and thirdly, they had had some trouble with that particular motel in the past. However, the Chief candidly admitted that he had no information indicating that the two defendants were committing, were about to commit, or had committed a crime of any kind.
Chief Thompson and Sergeant Toleno arrived at the Motel sometime between 4:50 and 5:00 P.M. Having checked the motel registration card which listed the occupant of Room 45 as James T. Grant of Holyoke, Massachusetts, a "representative" with "G.E. Company," they proceeded to Room 45 and knocked on the door. A male voice responded "Who's there?" Thompson replied "I am Chief of Police, and I would like to talk to you." After a momentary pause, the voice stated, "Just a minute, Chief, I am dressing." During the next few seconds the Chief heard muffled voices and things being shuffled about in the room. Thereupon, he sent the Sergeant to cover the rear door of the motel room. The Chief knocked on the door again and the response this time was "Give me a minute, Chief." He heard the sound of footsteps coming toward the door and then the chain lock on the door being moved. When the Chief heard the footsteps moving away from the door, he realized the occupant was locking rather than opening it. He decided to head for the rear entrance where he had sent Sergeant Toleno.
In the meantime, the Sergeant, after identifying himself, had stopped Margeson who had come running or at least hurrying out of the rear door of Room 45 with an attache case in his arms. While the Sergeant did not prevent him from opening the door of his car and placing his attache case on the seat, he did ask him if that were his automobile and requested his identification. He complied by handing him his driver's license and registration which showed no discrepancy. It was at this point that the Chief arrived at the parking lot from inside the motel.
Once the defendant had put the box down, the Chief directed him to walk out to the center of the parking lot where the Sergeant was standing with Margeson. Thereupon, the Chief looked at the box more closely. He observed that it was filled almost to the top, but all he could see were innocuous brown paper bags. Keeping one eye on Crehan, Margeson, and his Sergeant, he leaned over, put his hand into the box, and felt what seemed to him to be a revolver. He testified that he did this for two reasons; first, because his suspicions were aroused and he believed that the defendant was trying to hide something; and secondly, because he was concerned for his personal safety and that of his Sergeant.
After this cursory examination of the cardboard carton and without saying a word about his discovery either to the defendants or to his Sergeant, the Chief followed Crehan to the center of the lot and asked him for identification. While waiting for it, he asked him why he had not opened the door. Crehan answered that he had not given him enough time and that he first wanted to put the box in the car before opening the door. He then produced either a driver's license or an automobile registration card with the name James Grant and an address in Springfield, Massachusetts. The Chief noticed the discrepancy between the address listed there and the one on the motel register, which indicated Holyoke, Massachusetts. When asked about it, Crehan stated that he had moved recently and had not as yet changed the address on his license or automobile registration. The Chief then inquired as to what his business was. Crehan replied that he as a TV Salesman. In response to the Chief's question as to why he had described himself as a G.E. Company representative on the motel register, he answered rhetorically, "Didn't G.E. make televisions?" After Thompson said that he assumed they did, Crehan retorted, "Well, I sell them."
The Chief turned to Margeson and asked Sergeant Toleno to hand to him Margeson's driver's license and car registration. The Sergeant had already checked them against this defendant's car and had found no discrepancy. The Chief then asked him who he was and what he was doing in this motel. He said that he was a salesman, was not registered there, but was only visiting Crehan. He did not use Crehan's name but only pointed to him. He appeared nervous.
At this juncture the Chief, not being satisfied with the answers to his questions and cognizant of the gun in the box, told them that they were both under arrest. Crehan immediately asked upon what charge they were being held. The Chief told him that he was arresting them under the disorderly person's statute for failing to give a "good account" of themselves. The Chief and the Sergeant then for the first time frisked them.
The police took the two defendants and the carton to the police station whereupon the Chief proceeded to inspect the carton without having obtained a search warrant. He found under the paper bags covering the top, three loaded revolvers, several "grotesque" halloween type masks, gloves, caps, numerous license plates from various states, a pouch full of ignition keys, and a locked night depository bag bearing the legend "Fidelity-Philadelphia Trust Co." During the examination of the contents of the box, Margeson bolted from the police station but was quickly apprehended. The police searched him thoroughly and discovered $1200.00 tucked under his belt. They also searched Crehan and found $595 in his wallet. None of the bills was bait money from the Fidelity-Philadelphia bank robbery.
The Chief notified the Philadelphia Police and The Federal Bureau of Investigation after the defendants had been booked and locked into individual cells. It was not until this time that the Chief or his police department learned of the robbery of the Fidelity-Philadelphia Trust Company in Cheltenham, Pennsylvania.
On the following day, the F.B.I., armed with a warrant, searched Room 45 and seized some $2,000.00 and various articles of clothing.
The first legal issue that has been raised is the question as to exactly when in the chain of events the arrest of the two defendants occurred. The defendant Crehan contends that he was arrested as soon as the Chief placed his hand on his revolver and ordered him to stop and put down the box. Margeson argues that he was arrested when Sergeant Toleno stopped him in the parking lot. The government maintains that neither was apprehended until the Chief told them they were under arrest for failure to give a good account of themselves.
It is unnecessary for us to determine the moment when the arrest took place or to decide what constitutes an arrest or when if ever the police may detain a person without such detention constituting an arrest. See United States v. Boston, 330 F.2d 937 (2nd Cir.) cert. denied 377 U.S. 1004, 84 S. Ct. 1940, 12 L. Ed. 2d 1053 (1964); Brinegar v. United States, 165 F.2d 512 (10th Cir. 1947), aff'd 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); Jenkins v. United States, 161 F.2d 99 (10th Cir. 1947); Cf. Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960); Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959) (Majority and dissenting opinions); Schook v. United States, 337 F.2d 563 (8th Cir. 1964). Under either the government's position or the position of each defendant, the result on the issue of suppression of evidence will be the same.
It is well settled that evidence seized incident to a lawful arrest will not be suppressed on the grounds of an illegal search. See United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950); Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914). It is also well established that an arrest without a warrant is valid under the Fourth and Fourteenth Amendments of the United States Constitution, provided that it is based on probable cause that the person arrested was committing or had committed an offense. E.g., Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). As the Court said in the recent case of Beck v. Ohio supra 379 U.S. at 91, 85 S. Ct. at 225:
"Whether [an] arrest was constitutionally valid depends * * * upon whether, at the moment the arrest was made, the officers had probable cause to make it - whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense."
This concept of probable cause lies somewhere between suspicion and sufficient evidence to convict. See Brinegar v. United States, supra 338 U.S. at 175, 69 S. Ct. 1302; Henry v. United States, supra 361 U.S. at 102, 80 S. Ct. 168. However, "* * * good faith on the part of the arresting officers is not enough." Henry v. United States, supra at 102, 80 S. Ct. at 171. "The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests [interests of the individual versus the interests of society]. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Brinegar v. United States, supra 338 U.S. at 176, 69 S. Ct. at 1311.
In determining whether probable cause existed to arrest the two defendants in this case, it must be stressed that neither the Chief nor the Sergeant nor Lieutenant Castellucci had the slightest indication or suspicion that Crehan and Margeson had been involved in a bank robbery. Both the Chief and the Sergeant testified that they did not know of the hold-up of the Fidelity-Philadelphia Trust Company until after the defendants had been arrested and taken to the police station.
The Chief and his Sergeant relied on the hunch of an off-duty policeman from another jurisdiction in going to the Motel to investigate the defendants. They had not seen the defendants and knew nothing about them except what the Lieutenant had told the Sergeant. The Lieutenant himself knew neither Crehan nor Margeson nor Kadra nor anything about their backgrounds. His information was founded solely on observing their conduct for about a half-hour, and from such observation, he inferred that they might be involved in gambling or, possibly narcotics. He saw none of the "normal" paraphernalia associated with these crimes and heard nothing incriminating the defendants in such activities.
While it was well established that the police may rely on hearsay information as the basis for probable cause, such information must come from reliable informers or at least from persons known to have more than bare suspicions about criminal activity. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Costello v. United States, 298 F.2d 99 (9th Cir. 1962). The police may not engage in a bootstrap operation; they may not create probable cause from the mere suspicions of another, even if he be another policeman, where there is otherwise no grounds for it. See Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948).
The Chief admitted that at the point when he first knocked on the door of Room 45 at the motel, he had absolutely no grounds or probable cause upon which to arrest the occupants. We agree with that conclusion and will therefore ...