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United States v. Schartner

decided: March 5, 1970.

UNITED STATES OF AMERICA
v.
AUGUST EDWARD SCHARTNER, JR., APPELLANT



Biggs, Kalodner and Freedman, Circuit Judges. Kalodner, Circuit Judge (dissenting).

Author: Biggs

Opinion OF THE COURT

BIGGS, Circuit Judge.

The appellant Schartner was convicted on each count of a four count indictment charging him with (1) entering a federally insured bank with intent to commit larceny, (2) taking $84,550 from the bank with force, violence and intimidation, (3) taking this sum with intent to steal, and (4) knowingly jeopardizing the lives of two bank employees with a gun, in violation of 18 U.S.C. ยง 2113(a), (b) and (d).

Schartner argues that there were prejudicial errors at his trial. The evidence showed the following: In the afternoon of July 6, 1966 the Bridesburg branch of the Girard Trust Bank in Philadelphia, Pennsylvania, was robbed of the sum of $84,550. A bespectacled young man, later identified as Schartner, entered the bank with a brown attache case and on the pretext of desiring to open a new account gained entry into the office of and an interview with Rosinski, an assistant bank manager. The intruder drew a pistol and ordered Rosinski to lead him to the bank's vault where the head teller, Harvey, was working at the time. At the robber's command Rosinski and Harvey filled the attache case with $84,550 including a number of two-dollar bait bills. After threatening the pair with death if they should attempt to seek help or sound an alarm the robber fled with his loot.

On the evening of the robbery Harvey examined photographs produced by the police at the Philadelphia police station for approximately four hours. She chose three of these as resembling the robber, stating that they "were similar to his facial description," but she did not identify any one of the three men shown in the photographs as the robber. Two days later on July 8, 1966, a police officer brought three or four photographs to the bank and Harvey picked out one which she identified as the robber. That photograph was of Schartner. On the evenings of July 7 and 8, 1966, Rosinski examined several groups of photographs at the police station. On July 8, he selected one of these which was in fact a photograph of Schartner.

The FBI obtained a warrant for Schartner and he was arrested by FBI agents on July 30, 1966 in a cabin at Lake Texoma Lodge in Oklahoma. The agents searched the cabin and found currency totalling over $45,000 including one hundred two-dollar bait bills. The day following the arrest, the FBI obtained a warrant to search Schartner's automobile standing in front of his rented cabin. A search of the automobile revealed a billfold containing $120 in currency, identification cards, and other papers.

In August 1966, Rosinski and Harvey were asked by FBI agents to attend Schartner's arraignment in a court room of the United States District Court in Philadelphia. Rosinski and Harvey were informed that Schartner would be present in the court room. Three men were sitting in the jury box and both bank officers observed the three men and then left the court room. Rosinski and Harvey independently and separately identified Schartner as the robber without any coaching by the FBI agents.

On April 7, 1967, Schartner was found guilty by a jury. On October 26, 1967, however, the trial Judge granted his motion for a new trial because of a post-trial discovery that the testimony of an alleged incriminating eye witness, Dennis James Jones, was false.

At his second trial Schartner again was found guilty on all four counts. Schartner's motions for new trial and for arrest of judgment were denied and on December 23, 1968, he was sentenced to a prison term of twenty-two years on the fourth count, sentence being suspended on the other three counts. The appeal followed.

I. Admission of evidence obtained by the search conducted incident to appellant's arrest.

Schartner contends first that the warrant authorizing his arrest was legally deficient as not being supported by a sufficient affidavit of probable cause as required by the Fourth Amendment, and that therefore the admission of evidence obtained by a search conducted incident to his arrest was prejudicial error.*fn1 We cannot agree. An affidavit or a complaint may be validly based on hearsay information. See United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). The warrant was issued on a complaint executed by Whomsley, the special agent of the FBI who, with the aid of the Philadelphia police, carried on the Philadelphia investigation of the bank robbery. The complaint was as follows: "And the complainant states that this complaint is based on positive identification by the Manager of the aforesaid bank, Mr. Stephen Rosinski, and the Head Teller, Mrs. Rose Harvey, that defendant demanded money of them with a hand weapon, whereupon both witnesses were forced to turn over to the defendant $84,550 of money which was rightfully in the care, custody and control of the aforesaid bank."

Specifically, Schartner argues that the complaint failed to particularize sufficiently the basis for the warrant and because of this the United States Commissioner could not make an independent determination of the existence or not of probable cause. If Schartner's arrest was illegal because of a defective warrant it would follow that the fruits of the search incident to his arrest were inadmissible. See Giordenello v. United States, 357 U.S. 480, 483, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958). The Government does not challenge the basic proposition that the Fourth Amendment requires that a warrant be supported by information enabling the issuing officer to exercise independent judgment on the issue of probable cause. Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). We point out that Whomsley's complaint did in fact allow the Commissioner to discharge the constitutional function of an independent determination of probable cause. A complaint based on hearsay must meet two tests; first, the source of the hearsay declarants' accusation must be revealed, and second, the hearsay declarants must be presumptively reliable and generally worthy of belief. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The hearsay complaint in the instant case meets both of these tests. Accordingly we hold that the arrest warrant was valid.

Schartner also contends that the admission of the evidence seized in the cabin was beyond the permissible scope of a search incident to arrest. As we have said, Schartner was arrested in a cabin of the Lake Texoma Lodge in Oklahoma. The Lodge consists of a main hotel-like building surrounded by numerous cabins.One agent testified that Schartner's arrest and the search of his cabin together consumed about fifteen minutes. Another agent testified that the search alone took approximately twenty-six minutes. The cabin consisted of one room, twenty-five by thirty feet, and a bathroom. Various items, some of which were introduced in evidence, were seized from a "table in the kitchen alcove", from "the dining room table", from an "open front closet", from a blue suitcase located in the closet and from a brown leather bag, the location of which in the cabin does not appear from the record. There is evidence that the search extended into closed areas. As to the search of the brown leather bag and seizure of its contents, one of the arresting agents stated: "When we found the bag we asked Mr. Schartner if he ...


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