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February 8, 1971

William COLEMAN and Clyde Joyner

Joseph S. Lord, III, District Judge.

The opinion of the court was delivered by: LORD, III

Defendants seek to suppress (1) two revolvers, two ski masks and two shopping bags seized in two warrantless searches of an auto and (2) oral confessions given to, and memorialized in writing by, the F.B.I. A hearing was held in this matter on June 12, 1970. *fn1"

 On February 6, 1970, at or about 6:45 p.m., patrolman Edwards of the Springfield Township Police observed the two defendants standing to the rear of a Chevrolet sedan. The officer was suspicious of these men because their car was parked in front of a large three-story house which was dark and appeared empty, because about a month earlier a bank in the area had been robbed (N.T. 14, 15), *fn2" and because they "ran" to the front seat of their car when the officer cruised by in his clearly marked patrol car (N.T. 20). Edwards immediately made a U-turn and pulled behind the defendants' parked vehicle (N.T. 15).

 Officer Edwards approached the Chevrolet, and peered in at the defendants who were sitting in the front seat. The officer asked defendant Coleman, who was (literally, though not figuratively) in the driver's seat, for his owner's card and driver's license; Coleman produced them, and they "checked out all right" (N.T. 16). However, when Joyner was unable to produce identification (N.T. 16, 17), and when Coleman asserted that they were in the area to pick up a friend from work who he admitted worked in Philadelphia (N.T. 16), the officer remained suspicious.

 Edwards asked Coleman if he would mind opening the trunk, to which the latter replied, "No, not at all, I would be glad to" (N.T. 22). In Joyner's presence Coleman opened the trunk, and in it the officer saw "* * * quite a disarray * * * of clothing, bags, boxes" (N.T. 22, 23). Coleman picked up a toolbox from the disarray in order to show the officer his working tools, and this revealed a pistol which had been covered by the toolbox. Thereupon Edwards, without inquiring whether the pistol was registered (N.T. 23), arrested Coleman for transporting a firearm and Joyner for the possession of a firearm (N.T. 29). The pistol was seized at this point. Edwards ordered the defendants to sit in their car, and he proceeded to radio for aid. The defendants tried to flee in their car; however, after a chase of several blocks Edwards and an officer in another car boxed in the defendants and apprehended them (N.T. 24, 25). The defendants were then brought down to headquarters by Officer Edwards and both were charged with violation of the Uniform Firearms Act and with resisting arrest (N.T. 30).

 At about 7:00 p.m. Detective Prath of the Springfield Township Police, responding to a call from headquarters, drove to the location where the defendants had been apprehended. Another officer briefed Detective Prath regarding the case (N.T. 44) and gave him the keys to defendants' car. Detective Prath then conducted a warrantless search of the car and seized a revolver, two ski masks and two shopping bags.

 Shortly after being indicted the defendants were released on bail which they had posted in cash (N.T. 54). On February 9, 1970, Detective Prath told agent Deneen of the F.B.I. about the bail money that had been posted in cash by the defendants and about the evidence obtained from the vehicle (N.T. 57, 68). Subsequently, the F.B.I. obtained arrest warrants on the basis of an affidavit which read as follows:

"Investigation conducted by Robert J. Deneen, Special Agent of the Federal Bureau of Investigation, which developed that on January 9, 1970 the aforesaid bank was robbed by two Negro males wearing ski masks, each carrying an automatic pistol and a shopping bag with a cord handle; that on February 6, 1970 the accused, Clyde Joyner and William I. Coleman, were arrested in Springfield Township and found in possession of two ski masks, two automatic pistols, two shopping bags with cord handles, one pair of black gloves; that the aforesaid articles were exhibited to four witnesses to the robbery on January 9, 1970, such articles being identified as identical to those in the possession of the robbers, and that on February 6, 1970, the accused * * * posted bond in Springfield Township * * * which bond was in cash and included nine one dollar bills stolen from the aforesaid bank on January 9, 1970." (N.T. 87, 88).

 On February 12, 1970, at 8:15 a.m., two F.B.I. officers entered defendant Joyner's house and arrested him. They found him in his bedroom, apparently asleep, with a piece of fabric wrapped around his arm (N.T. 74, 76). Joyner said that he was a narcotics addict and that he had had a "fix" shortly before the officers arrived (N.T. 74, 75). Nonetheless, he appeared coherent (N.T. 75, 82). He was arrested and advised of his rights (N.T. 75, 76).

 Joyner arrived at F.B.I. headquarters at about 9:15 a.m. (N.T. 76). He was stripped and searched (N.T. 76). No doctor saw him before his interrogation; however, he appeared coherent throughout the interview (N.T. 82). Before the interrogation began, Joyner was advised of his Miranda rights. He refused to sign a form waiving those rights, but stated that he understood those rights and was willing to talk to agents (N.T. 78). He proceeded to confess to participation in the bank robbery. The interview and processing of the prisoner concluded shortly after noon (N.T. 79).

 Coleman was arrested by the F.B.I. at his place of employment, then was taken to F.B.I. headquarters. He was twice advised of his constitutional rights (N.T. 92). He confessed during a 25 minute interrogation.


 The government contends that the search by Officer Edwards, though warrantless and not incident to an arrest, was consented to and is therefore constitutional. See, e.g., United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (C.A. 3, 1970). The burden is on the government to prove that there was consent to the search, i.e., that there was a binding waiver of Fourth Amendment rights. E.g., Bumper v. North Carolina, 391 U.S. 543, 548, 549, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). And this burden of proof is heavy: it is only where there is "* * * an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), that an effective waiver of a constitutional right can be found. More specifically,

"[a] search and seizure may be made without a search warrant if the individual freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied." ...

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