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UNITED STATES v. TILLERY

October 4, 1971

UNITED STATES of America
v.
Joseph Lee TILLERY


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 Motion to Suppress. According to agents of the FBI, on June 24, 1971, at approximately 3:05 P.M., a lone gunman robbed a branch of the Fidelity Bank in Ridley Township, Pennsylvania, and took $3,000 including $500 in bait ten dollar bills. During the robbery, one of the tellers was shot in the shoulder.

 About fifteen minutes later, Mr. Burke, the owner of a residence located in the immediate vicinity of the bank observed a man carrying a bag and fitting the description of the robber running through a hole in his fence. As he passed, Mr. Burke asked him what was wrong. The man replied, "they are after me." The suspect continued to run, and Mr. Burke saw him get into a 1962 or 1963 Pontiac Tempest with a white top, blue bottom, and flowers on the front hub caps as well as on the passenger's side of the car. This car was driven by another male and had pulled up and parked about 5 or 10 minutes before the man came running through the fence. The auto immediately sped away with its two occupants.

 Later that same afternoon, a 1962 Oldsmobile F-85 with a white top, blue bottom and flowers on both the hub caps and passenger's side was stopped by the local police in Chester, Pennsylvania. The driver, Mrs. Scott, a resident of Chester, explained that she had no knowledge of the whereabouts of her car earlier in the day, but her eleven year old daughter Karen indicated that sometime that morning she (Karen) had given the keys to Joseph Tillery, the defendant. Karen further stated that Tillery had returned the car during the afternoon and that he was accompanied by another individual. The following day, an FBI agent showed Karen pictures of the robber taken by a camera inside the bank. She identified the man in the photograph as "Sonny W.," and told the agent that he was with Tillery when the latter returned Mrs. Scott's car.

 In the meantime, one of the FBI agents investigating the bank robbery indicated that he too was looking for Joseph Tillery on a bond default warrant issued by a Federal Judge in the District of Columbia. At that point the agents apparently decided to arrest Tillery on the "D.C. Warrant." This warrant has been made a part of the record in this case, and we note that it concerns the offense of carrying a dangerous weapon rather than bond default as the arresting agents had originally thought. Nevertheless, there is no dispute that this was the bench warrant pursuant to which the defendant was ultimately arrested.

 Thus, on the afternoon of June 25th (the day after the robbery) six or seven agents went to the vicinity of the home of Tillery's mother in Chester, which was his last known address. At 3:26 P.M., these agents stopped a 1966 Thunderbird and arrested Joseph Tillery, the driver. They made a quick "pat-down" search for weapons and hustled him into their car. According to the agents, a crowd of residents who were aware of the arrest had gathered, and these people hurled various slurs at them. At the suppression hearing, an agent testified that Tillery was informed that his arrest was based on the "D.C. Warrant" mentioned above, and the defendant confirmed this statement.

 The agents then transported Tillery to FBI headquarters in Philadelphia where they conducted a "strip-search". This procedure involves a complete search of the arrestee's person, and in the process all items of clothing are removed and thoroughly searched. During this search, agents found a ten dollar bill which matched one of the serial numbers of the bait money stolen on the previous day from the Fidelity Bank. As a result of this information, an indictment was filed against Joseph Tillery on August 5, 1971 charging him with bank robbery and incidental crimes under 18 U.S.C. § 2113. His alleged accomplice William James Smith, a.k.a. "Sonny W," has not yet been apprehended.

 Defendant now moves to suppress the bait ten dollar bill found in his pocket based on the following theories:

 (1) The "D.C. Warrant" was a sham for arresting the defendant and searching him for bait money relating to the bank robbery.

 (2) Even if the "D.C. Warrant" was valid, nevertheless, evidence seized incident to an arrest for one offense cannot be used to prosecute the defendant for an unrelated offense.

 (3) Even if the evidence seized incident to an arrest can be so used, in this case the bait money must be excluded because (a) the scope and delay in the strip search was unreasonable, and/or (b) assuming the legality of such a search, nevertheless, the agents lacked probable cause to seize the ten dollar bill in question.

 (4) Since the legality of the arrest and search cannot be predicated upon the "D.C. Warrant," the government must rely upon the validity of an arrest for bank robbery in order to introduce the bait money. And as to the bank robbery charge, the agents lacked probable cause when they arrested the defendant.

 (5) Even if the agents had probable cause, their failure to secure an arrest warrant when they had time to do so renders the arrest on that charge unlawful, and any evidence seized ...


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