The opinion of the court was delivered by: HUYETT
Defendant, James J. Tuggles, is charged with aiding and abetting the commission of a bank robbery in violation of 18 U.S.C. § 2113(a) and (b), and § 2. The defendant claims that a two-dollar bill was taken from him by an illegal search and seizure, and that certain statements were obtained illegally by the police and the F.B.I. He has moved to suppress the use of this evidence at trial.
I. The seizure of the two-dollar bill.
At approximately 4:30 that same afternoon Tuggles walked into the South Philadelphia Detective Division and asked Lt. James Lavin why the police were looking for him. Lt. Lavin said that they wished to speak with him concerning a bank robbery. He told Tuggles that he was not under arrest. Defendant indicated no hesitancy to remain.
Lt. Lavin then asked the defendant to count his money. Tuggles counted his money in front of Lt. Lavin. The police officer, who was aware that two-dollar bills were used as "bait money" in the robbery, noticed a two-dollar bill among the defendant's money. After Tuggles returned the money to his wallet, Lt. Lavin asked him to wait in the "holding room". Tuggles did this without complaint or hesitation. Lt. Lavin then obtained the serial numbers of the stolen money from the files, returned to Tuggles, and asked him to take out his money again. When the defendant took his money out, the two-dollar bill was not there. Lt. Lavin took the wallet and found the bill inside. The serial number on the bill was that of one of the stolen bills.
The Government does not seek to justify the seizure of the two-dollar bill on the grounds that it was incident to a lawful arrest. Tuggles had been advised that he was not under arrest; there was no indication of any threats or force; and Tuggles cooperated willingly without any hesitancy or complaint. See Fuller v. United States, 132 U.S. App. D.C. 264, 407 F.2d 1199 (1967, rehearing en banc 1968), cert. denied, 393 U.S. 1120, 89 S. Ct. 999, 22 L. Ed. 2d 125 (1969); Fisher v. United States, 324 F.2d 775 (8th Cir. 1963), cert. denied, 377 U.S. 999, 84 S. Ct. 1935, 12 L. Ed. 2d 1049 (1964), rehearing denied, 379 U.S. 873, 85 S. Ct. 24, 13 L. Ed. 2d 81 (1964). The defendant at this time was merely under investigation. Fourth Amendment protections, however, apply even in the investigatory stages. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969).
The Government justifies the seizure of the two-dollar bill by the "plain view" doctrine. "[Objects] falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067 (1968). The Government argues that Lt. Lavin rightfully saw the two-dollar bill in plain view when Tuggles complied with a reasonable request and that he had probable cause to seize the bill as evidence.
There are some situations where the police may intrude into private areas for good reason and may properly seize evidence which is then in plain view. The Supreme Court has ruled that police who enter an impounded car in order to secure the windows and doors may seize any evidence discovered. Harris v. United States, supra. The Court in Harris specifically did not decide whether police may seize evidence when they have entered an impounded car pursuant to a police regulation requiring a thorough search in order to remove all valuables. A district court, however, has admitted evidence obtained by police in such a manner. United States v. Fuller, 277 F. Supp. 97 (D.D.C. 1967). In Fuller, the Court reasoned that the police practice of removing all valuables in order to safeguard them was reasonable when it was not utilized as a search without a warrant. The Court noted that there was no indication that it was a search for evidence of a crime. Cf. Vauss v. United States, 125 U.S. App. D.C. 228, 370 F.2d 250 (1966).
The scope of the intrusion was limited. Tuggles never surrendered control of the money, but merely counted it in the officer's presence. He was not required to spread the money to afford the officer a clear view of the contents. The limited scope indicates that the purpose was not the acquisition of evidence. It does not become a search for evidence in this instance merely because evidence of the crime, bank robbery, may appear when a suspect counts his money. The fact remains that the procedure was not used for the purpose of a search. See Fuller v. United States, supra; cf. Vauss v. United States, supra.
The behavior of the defendant indicates that he cooperated voluntarily with the procedure. Tuggles was free to leave at any time. He testified that he was told that he was not under arrest. He did not hesitate or complain when Lt. Lavin requested him to count his money, but complied willingly. There was no need to give the defendant any warnings since he was not in custody, the investigation had not narrowed to him, and the request was not for the purpose of obtaining evidence. See Bendelow v. United States, 418 F.2d 42 (5 Cir. 1968), cert. denied 400 U.S. 967, 91 S. Ct. 379, 27 L. Ed. 2d 387 (1970); see also United States ex rel. Anderson v. Rundle, 274 F. Supp. 364 (E.D. Pa. 1967).
When Lt. Lavin seized the two-dollar bill he had probable cause to believe that it was contraband. Tuggles was under investigation for a bank robbery in which two-dollar bills were the "bait money". Two-dollar bills are extremely rare in general circulation.
The officer had ...