The opinion of the court was delivered by: HUYETT
Defendants George Whitfield and Robert F. Johnson were found guilty by a jury on a three-count indictment involving theft and possession of stolen goods constituting an interstate shipment, in violation of 18 U.S.C. § 659. More specifically, both defendants were found guilty on Count I of a conspiracy to possess goods stolen from interstate commerce, in violation of the general conspiracy statute, 18 U.S.C. § 371. Defendant Whitfield alone was charged and found guilty on Count II of stealing with intent to convert goods constituting an interstate shipment. And both defendants were found guilty on Count III of possession of goods stolen from interstate commerce.
Whitfield and Johnson have moved for judgments of acquittal and for new trials. Judgments of acquittal as to Whitfield and Johnson are granted on Count I charging conspiracy to possess goods stolen from interstate commerce, but judgment of acquittal is denied Whitfield on Count II charging him with stealing with intent to convert goods constituting an interstate shipment, and judgments of acquittal are denied both defendants on Count III charging them with possession of goods stolen from interstate commerce. The motions for new trial by both defendants are denied.
In reviewing the record we are obliged to view the evidence in the light most favorable to the government.
Thus the testimony discloses that on the night of February 21, 1973, the Florida-Texas Freight Company in Philadelphia was burglarized and twenty cartons of stereo tapes, constituting an interstate shipment,
were stolen. As a result of an anonymous telephone call to Agent Dillard Howell of the Federal Bureau of Investigation (F.B.I.) on February 22, 1973, at 8:21 A.M. a surveillance operation was set up in the area of 27th and Latona Streets, Philadelphia, to observe activity in and around a parked Ryder rental van which contained the twenty cartons of stolen tapes. At about 12:57 P.M. an individual identified by three of the surveillance agents as defendant Whitfield arrived at the surveillance location in a light blue Plymouth which he parked directly across the street from the Ryder van. Whitfield walked over to the Ryder van looked inside and then proceeded to walk down the street where he entered a row house on Latona Street. Shortly thereafter Whitfield exited the house and proceeded back to the corner of 27th and Latona. At approximately 1:08 P.M. F.B.I. Agent Bierman observed another vehicle arrive at the scene. Whitfield who was standing on the corner approached the newly arrived vehicle, placed his hand inside the window and then pulled it out, apparently clenching something in his fist. He then proceeded back to the Ryder van, entered the vehicle and started the engine. At this point Agent Bierman blocked the intersection with his vehicle. Whitfield shut off the engine, climbed out of the truck and proceeded over to the agent. Bierman then identified himself and requested Whitfield to come around to the passenger side of his vehicle to be interviewed. At this point Whitfield fled north on 27th Street. Subsequently, the F.B.I. agents removed the stolen cartons from inside the Ryder van and took them to the F.B.I. office in Philadelphia to be forwarded to the F.B.I. Laboratory in Washington, D.C. for latent fingerprint processing. The agents examined the Ryder van for possible latent fingerprints.
The evidence against Whitfield with respect to Counts I and III (conspiracy to possess and possession) consisted primarily of the testimony of the three surveillance agents
who identified Whitfield as being in and around the van parked at 27th and Latona Streets on February 22, 1973. In addition, James K. Howell, fingerprint expert for the F.B.I., testified that Whitfield's fingerprints were found on three of the twenty cartons of stolen tapes found inside the Ryder van that were sent to the F.B.I. Laboratory for processing.
Count II of the indictment charges only Whitfield with the actual theft of the goods. The evidence with respect to this count consisted primarily of the testimony of James K. Howell who identified a latent palmprint discovered on a notebook found at the scene of the burglary as identical to a palmprint obtained from Whitfield.
The evidence against defendant Johnson on Counts I and III (conspiracy to possess and possession) also consisted primarily of the testimony of Agent James K. Howell who identified Johnson's fingerprints on four of the twenty stolen cartons in the rear of the van. Latent prints of Johnson were also found on the driver's side window and the passenger's side rear view mirror of the van itself.
In support of their motions for a new trial defendants allege several grounds for error. We shall discuss only those which we consider meritorious.
Defendant Whitfield contends it was error to allow into evidence finger and palm prints taken from him on July 30, 1973, by Agents Dillard Howell and Armand Gagne. This contention was the subject of a two-day suppression hearing held immediately prior to the trial. The testimony at the suppression hearing established that at the time the lifts were taken, Whitfield was lawfully incarcerated on an unrelated state charge at the Philadelphia Detention Center. Whitfield was warned properly as to his rights by the agents and verbally consented to have his major case prints taken. The prints were taken for the purpose of comparing them to latent prints found on the notebook taken from the Florida-Texas warehouse by the agents following the burglary.
Whitfield argues that the taking of his major case prints on July 30, 1973, violated rights guaranteed him under the Fourth, Fifth and Sixth Amendments to the Constitution. More specifically, Whitfield claims that the agents' failure to obtain a warrant prior to taking the prints amounted to an unreasonable search and seizure in violation of the Fourth Amendment and that the taking of the prints in order to compare them to lifts taken from the scene of the theft compelled him to be a witness against himself in violation of the Fifth Amendment. Whitfield cites Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969).
In Beightol v. Kunowski, 486 F.2d 293 (3 Cir. 1973), the Court of Appeals for the Third Circuit discussed the impact of United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973) upon Davis. Although the taking of fingerprints does not violate the privilege against self-incrimination, the unlawful detention of a person for the purpose of obtaining those fingerprints is still prohibited. The court in Beightol states: "The issue, then, is whether the detention on January 31, 1972 was lawful."
Thus we conclude from Beightol that the taking of fingerprints from a defendant while lawfully incarcerated does not violate the Fourth Amendment. The mere fact of lawful incarceration is a sufficient basis to permit the taking of prints. The prints taken from Whitfield on July 30, 1973, while lawfully incarcerated at the Philadelphia Detention Center were therefore admissible.
We see no merit to Whitfield's second contention that the admission of his major case prints violated his Fifth Amendment right against self-incrimination. The Supreme Court has held that the protection of the Fifth Amendment applies only to compelled testimonial or communicative evidence and not to mere identifying physical characteristics such as fingerprints. United States v. Dionisio, supra ; Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). We do not perceive any distinction between fingerprints and palmprints for either Fourth or Fifth Amendment purposes.
Lastly, defendant Whitfield argues that his Sixth Amendment right to counsel was violated by the admission of the July 30, 1973 prints. The taking of fingerprints has not been held to be a critical stage of the prosecution. United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967); Schmerber v. California, supra. Indeed since there was no Fourth Amendment violation and defendant had no ...