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October 25, 1973

Gene Tony KULP et al.

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

I. Preliminary Statement

 The defendants in this case were charged with receiving and concealing goods in excess of $5,000 moving in interstate commerce from Dallas and Houston, Texas to the Eastern District of Pennsylvania, knowing the same to have been stolen. *fn1" The three defendants whose post trial motions are before us (Kulp, Dougherty and Powell), were jointly tried and were convicted by a jury. *fn2" Their motions have been variously denominated as motions for judgment of acquittal (Rule 29(c)), new trial (Rule 33), and arrest of judgment (Rule 34), and they raise a variety of points which may be enumerated as follows: First, all defendants claim that the admission of evidence obtained from a search of Dougherty's automobile and of other evidence seized from a trash dump behind Kulp's home was error. Second, the defendants all contend that it was error to permit certain in-court identifications of Kulp and Powell. Third, all defendants submit that it was error to refuse to allow them to withdraw from a stipulation entered into on the eve of trial as to the ownership of certain stolen property, when it appeared at trial that one of the witnesses (Mrs. Diane Fennekohl) had become disabled and could not have appeared to verify ownership had she been called. Fourth, all defendants assert that it was error not to declare a mistrial when, by reason of the non-appearance of Mrs. Fennekohl, the United States Attorney could not connect certain silverware (not included in the stipulation) to the case. *fn3" Fifth, Powell asserts that we erroneously denied his motion for severance. Sixth, Powell claims that we erred by failing to give a "missing witness" charge. Seventh, Dougherty argues that we erred in denying his motion for judgment of acquittal in that the verdict was not supported by the weight of the evidence. Eighth, Kulp asserts that he was prejudiced by a witness's reference to pictures.

 It will be helpful at this juncture to set forth briefly the evidence adduced at trial. *fn4" All of the evidence on the events in question was put on by the government; none of the defendants took the witness stand. Only Dougherty put on any evidence, and that was character evidence.

 Briefly summarized, the government established the following points by the testimony of F.B.I. agents, especially of Special Agent James Aardweg. (1) On the evening of March 20, 1972, a number of F.B.I. agents set up a surveillance of the home of Kulp in Morwood, Pennsylvania, in a rural section of Montgomery County. (2) The agents saw several male figures milling about and loading packages into a Cadillac automobile protruding from Kulp's garage. (3) When the Cadillac and another vehicle left Kulp's premises, the agents followed and stopped them. (4) They found Dougherty to be the driver and Powell a passenger of the Cadillac in question and Dever to be a passenger of the other car. (5) They observed in plain view in the back seat of Dougherty's cars several suitcases that matched the description of those reported as stolen in Texas. (6) They seized those suitcases, including one with a tag marked "American Airlines Flt. 442." (7) They later opened the trunk of Dougherty's car with the keys that he gave them and procured therefrom another suitcase and a footlocker. Appended to the footlocker was an REA Air Express shipping tag indicating that it had been shipped on March 13, 1972, from Houston to Philadelphia and held for one B. Dever. (8) All of the suitcases and the footlocker were opened and were found to contain substantial quantities of proof coins, stamps, jewelry and other valuable articles. (9) The government also established that Dougherty was a jeweler.

 The next elements of the government's case were established by stipulation. First, it was stipulated that the goods found in Dougherty's car were the same goods that had been stolen between March 12th and 18th from three identified homes in Texas. Second, it was stipulated that the goods mentioned in the first stipulation had a value in excess of $5,000. The stipulations obviated the necessity of the government's bringing witnesses from Texas to establish ownership and theft of the goods.

 The government next proceeded to link Kulp and Powell with the transportation of the stolen goods from Texas to Pennsylvania. Ollie Johnson, who was employed by REA Air Express in Dallas on March 18 made an in-court identification of Powell. He testified that he was "pretty sure" that Powell was one of the men who shipped some luggage from Dallas to Philadelphia on March 18th. He had talked to Powell at the time and remembered the shipment because of the unusual weight of the luggage. Johnson also testified to serial numbers which matched the serial numbers on one of the REA slips used in Philadelphia to pick up the suitcases. Agent Mullins of the F.B.I. then testified that Johnson had also selected photographs of Dever and Powell on April 3, 1972, as the men who shipped the luggage in question. The photospread itself was not introduced.

 Donna Kay, a stewardess for American Airlines, positively identified Kulp in court as a man who was aboard flight 442 from Dallas to Philadelphia on March 19, 1972. She testified that she remembered him because (1) he was casually dressed, which is not typical of first class passengers; (2) he sat with a short man without talking or moving about as much as was usual; (3) he was about 6'1" tall, which is about as tall as Miss Kay's brother; (4) he had blondish color hair; and (5) he had very craggy facial features, with high cheekbones and a thin strong jaw.

 Thomas Burns, an REA Air Express employee at 30th Street Station in Philadelphia, identified Kulp in court as one of the men who on March 20 picked up some exceptionally heavy luggage which had arrived from Dallas. He testified that the man resembled Kulp very much. He stated that he remembered the man because he had talked to him about a gun rack on the back of his truck and because of the unusual weight of the luggage. *fn5" Burns also identified the REA shipment receipts. *fn6"

 Joseph Maloney, also employed at 30th Street Station, testified that he had talked to Dever when Dever signed for the suitcases and had seen others with Dever, but he could not identify any of Dever's companions. He testified that the luggage was particulary heavy and had been shipped from Houston and Dallas. *fn7"

 We turn now to a discussion of the issues raised by the various suppression motions and will then discuss the various errors alleged as arising from the trial. The admission of physical evidence and identification testimony were the subject of extended evidentiary hearings on defendants' motions to suppress. The motion to suppress physical evidence seized from Dougherty's car was denied via a bench opinion several months before trial. The hearings on the defendants' motions to suppress both in-court and out-of-court identifications of certain witnesses and to suppress the silverware seized from the trash pile behind Kulp's home *fn8" were conducted for the 2 1/2 days preceding trial. The motions were again denied from the bench and we thereupon proceeded with the trial. On September 11, 1973, we entered an order denying the post-trial motions. Following are the reasons why all of the defendants' post-trial motions have been denied.

 II. The Automobile Search

 Special Agent James Aardweg of the F.B.I. was the principal government witness at the suppression hearing. According to Aardweg, at approximately 3:30 p. m. on March 20, 1972, the Philadelphia office of the F.B.I. received a telephone call from a man who refused to identify himself, stating that the F.B.I. had been interested in a man named Gene Kulp about a year before in connection with some stolen guns. The caller further stated: (1) that Kulp had recently received a large quantity of proof coins that had been stolen in the Dallas, Texas area two days previously; (2) that the coins had arrived in Philadelphia on March 20, 1972; and (3) that a jeweler named Dougherty would be at Kulp's home in Morwood, Montgomery County, Pennsylvania, during the evening of March 20, 1972, to purchase the coins. Agent Aardweg had personal knowledge of the F.B.I.'s prior investigation which was related by the anonymous caller and remembered that Kulp was a subject of the investigation. *fn9" The Philadelphia office of the F.B.I. contacted their Dallas office in order to ascertain whether there were any reports in the Dallas area of recently stolen proof coins. Later that afternoon, the Dallas office phoned the Philadelphia office and reported that they had learned from the Dallas police that on March 18, 1972, a large number of proof coins and jewelry were stolen from the home of Hoyt Crabtree of Dallas.

 Early that evening, Agent Aardweg, accompanied by several other agents, proceeded in two cars to the Limerick Barracks of the Pennsylvania State Police, where they were joined by a state policeman who was familiar with the rural area near Kulp's home in Morwood. While en route, Agent Aardweg received a radio communication from his supervisor noting that several suitcases were stolen in the Crabtree burglary which presumably were used to transport the coins and jewels from the Crabtree home. The suitcases were described as follows: one unusually large brown leather suitcase with straps and a double zipper, one large black leather suitcase, one small dark blue nylon suitcase or "flight bag" and one blue flowered overnight suitcase. After arriving in the vicinity of the Kulp residence, the agents spent considerable time locating it because of the rural nature of the area. They finally found the house which was positioned off the main road, and the agents thereupon proceeded to turn around in Kulp's driveway. In doing so, they noticed several Cadillacs and a Volkswagen parked in front and a late model Cadillac backed partway into Kulp's garage attached to the house.

 The agents next set up a physical surveillance from a road behind and slightly above the Kulp home. Although they began the surveillance at 9:00 p. m. in darkness and were approximately 200 yards from the home, the house and garage areas were well-lighted. From their vantage point, they could discern several male figures milling about the Cadillac protruding from the garage; the men appeared to be loading some large packages into the car. At 10:30 p.m., as the agents were relocating their point of surveillance, they noticed two of the cars leaving the Kulp home. When the two cars turned onto the main road, the agents followed them. After a short distance the agents turned on their sirens and the cars pulled off the road.

 As Agent Aardweg was approaching the Cadillac, the driver opened his car door to get out. At this point, Aardweg recognized the defendant Dougherty as the driver of the car, because he had known Dougherty personally for about 10 years. *fn10" He did not recognize the defendant Powell. In addition, when the interior car light came on as the door was opened, Agent Aardweg could see from the outside of the car that the suitcases in the back seat of the car matched the description of the suitcases stolen in the Dallas burglary. He observed a very large brown leather suitcase with two leather straps and a double zipper, a small dark blue nylon bag and a blue flowered medium size suitcase. Aardweg also saw another bag that had not been described as stolen but he did not see the large black leather suitcase.

 At this juncture, the agents informed both Dougherty and Powell as to their identity and gave them "Miranda warnings." Dougherty and Powell both replied that they were aware of their rights and did not wish to say anything. Because of the lateness of the hour and the fact they were stopped on a narrow road in a rural area, the agents instructed Dougherty and Powell, as well as defendant Dever, who was in the other car with a woman, to follow them to the Limerick State Police Barracks. *fn11" Upon arrival at the barracks, before proceeding with the investigation, Aardweg called the Assistant United States Attorney on duty in Philadelphia and received advice as to how to proceed. Aardweg thereupon requested Dougherty to relinquish the keys to his car in order to open the trunk. Dougherty acceded to the request and the agents opened the truck and removed therefrom a footlocker and a large black leather suitcase fitting the description which had been transmitted from Dallas. They also removed the previously described suitcases from the rear seat and floor of the car. An REA Air Express shipping tag was appended to the footlocker. It indicated that it had been shipped on March 13, 1972, from Houston to Philadelphia and held for one "B. Dever." All of the suitcases and the footlocker were opened in Dougherty's presence. Only the footlocker might have been locked.) The luggage was found to contain substantial quantities of proof coins, stamps, jewelry and other articles of the kind which had been described as being stolen in Dallas. The defendants were detained for several more hours and then released on the advice of the United States Attorney. The indictments soon followed.

 The defendants contend that the warrantless search and seizure of the automobile and the suitcases violated their Fourth Amendment rights against unreasonable searches and seizures. The defendants concede that the agents had probable cause to conduct a search but argue that exigent circumstances were lacking to justify a warrantless search and seizure, and that it was not a lawful search incident to a lawful arrest. *fn12" In approaching the question, we start from the premise that notwithstanding the existence of probable cause, warrantless searches are per se unreasonable absent exigent circumstances or some recognized exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)

 As noted above (see n. 12), it is clear that the agents had probable cause to search. However, the defendants first contend that the anonymous phone call at 3:30 in the afternoon of March 20 provided probable cause to search Kulp's home. We disagree and, had had the police gotten a warrant based merely on this phone call, we doubt whether the warrant would have been valid. Indeed, the agents followed the prudent course and continued to investigate the tip. The investigation corroborated the tip in every respect. The final block in the building of probable cause occurred when the agents saw the suitcases that matched the description of those stolen in Dallas and recognized jeweler Dougherty as the driver. Thus, the probable cause consisted of the tip, corroboration of the tip, the independent evidence obtained from the agents' surveillance, and the presence of incriminating evidence in plain view in the back seat of the car. See United States v. McNally, 473 F.2d 934 (3d Cir. 1973); United States v. Moody, 485 F.2d 531 (3d Cir. 1973).

 In an earlier opinion, United States ex rel. Johnson v. Johnson, 340 F. Supp. 1368 (E.D.Pa.1972), we analyzed warrantless automobile searches in light of Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In Johnson, we concluded that the result in Coolidge was merely the fruition of the warning in Chambers that exigent circumstances do not in every instance accompany the search of an automobile. However, the facts of the present case are governed by Carroll and Chambers because the car was stopped on the open highway in an isolated, unfamiliar area, at 10:30 p.m., and because the car was movable, making the opportunity to recover the stolen items fleeting. This is a classic automobile search where there existed exigent circumstances to justify a warrantless search.

 Our conclusion is bolstered by two recent decisions in this circuit. In United States v. Menke, 468 F.2d 20 (3d Cir. 1972), federal agents had intercepted a ten pound box of marijuana sent from Korea and addressed to Menke at a rural address in New Castle, Pennsylvania. The agents arranged for a controlled delivery to that address. At 4:12 p. m. the agents observed Menke take the box from the mailbox located about 200 yards from his house and place it in the trunk of his car. At the house he removed a "like appearing" package from the trunk and entered the house at 5:00 p. m. The agents then executed the search warrant issued for the home but were unable to locate the parcel. A search of the trunk of the automobile parked in the driveway revealed the parcel and it was seized.

 On these facts the court held that exigent circumstances existed to justify a warrantless search of the automobile. Among other matters highlighted by Judge Aldisert in his opinion for the court were the following: (1) it could not be assumed that after 5:00 p. m. a United States Magistrate or District Judge or other warrant issuing authority would be immediately available in a rural area to issue the warrant; and (2) the goods in question were contraband. Inter alia he observed:

Where an automobile is the subject of the search, the possibility of its movement and the concomitant disappearance of the contraband is a more critical factor than a count of the number of agents present who could be dispatched to a warrant-issuing authority. Even the plurality opinion in Coolidge, heavily relied upon by the district court, disclosed: "There was no way in which he could conceivably have gained access to the automobile after the police arrived on his property." 403 U.S. at 460, 91 S. Ct. at 2035. Justice Stewart then explained that after Coolidge was placed under arrest, his wife and child were driven to a relative in another town, "and they stayed with her there until around midnight, long after the police had had the Pontiac towed to the station house." Moreover, Justice Stewart emphasized: "[Surely] there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States . . . no contraband or stolen goods or weapons, no confederates waiting to move the evidence." 403 U.S. at 462, 91 S. Ct. at 2036. In contrast, here there was contraband. Here, there were three other persons in the residence -- the defendant's father, mother and sister. The Korean registry slip was found in the house they occupied. The agents could not have known whether these persons were confederates. And, if they had been, there was nothing to have prevented their moving the car, for they were neither in custody nor under arrest.

 Id. at 23.

 In United States v. Moody, supra, the agents searched an automobile and seized 54 one-gallon jugs of non-tax-paid whiskey therefrom after a chase of several blocks following which the driver fled the car. Judge Hunter upheld the ...

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