rear seat. When only two of the occupants could produce identification, he radioed for a more detailed description of the bank robbers. He learned that one of the robbers had an earring in his ear and noticed that one occupant, Richard McIntosh, wore an earring. The officer then requested Briggs and the others to go to the state police barracks for further questioning about the robbery.
We might agree with defendant's contention that the presence of four black males, one wearing a golf cap, driving together in a car bearing no resemblance to that connected with the robbery, would not constitute probable cause for an investigatory stop. Whatever the officer's suspicions, however, he made the stop only after Briggs committed a traffic violation, passing a truck in a no-passing zone. At the trial Briggs admitted the violation.
In the course of a routine traffic stop, after two occupants could not produce identification and after seeing the hat which had been on one of the occupants now lying on the seat, the officer radioed for a description of the bank robbers. He noted the earring and concluded that under all of the circumstances these four were possibly involved. He did not search the car at that time other than to observe what was in plain view. He requested Briggs to drive the car to the state police barracks for further inquiry concerning the bank robbery, which Briggs, by his own testimony, voluntarily did.
Under these circumstances, we find that probable cause existed for the officer to stop the car and then to request Briggs to go to the barracks.
The Search of the Briggs Car
Defendant objects to the search of the laundry bag in the trunk of Briggs's car and to a search of the paper bag containing money which allegedly occurred before Briggs gave his consent.
Testimony in the suppression hearings and at trial indicated that upon arrival at the police barracks Trooper Hudson looked into the car and saw a brown bag on the floor of the front passenger side. He said the bag "looked . . . to contain a considerable amount of money." He also saw "a wad of bills in the back seat, stuck there". The four men then were frisked for weapons and were asked to produce identification. The weapons search revealed a large sum of money and a money wrapper from Peoples National Bank stuffed in the side of McIntosh's sock.
After this discovery, Briggs was asked if he would consent to a search of his car. He did so without hesitation and signed a waiver. The search of the passenger compartment revealed money hidden between the seats and a paper bag containing $3,500. Search of the trunk revealed the laundry bag which contained the shotgun.
Defendant contends that, Briggs, as owner of the car, did not have authority to consent to a search of the laundry bag which belonged to one of the other men. The government contends that defendant does not have standing to raise the issue or to complain of the search of Briggs's car.
In Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973), the court held that a defendant does not have standing to contest a search and seizure where the defendant (a) is not on the premises at the time of the contested search and seizure, (b) alleges no proprietary or possessory interest in the premises and (c) is not charged with an offense that includes as an essential element possession of the seized evidence at the time of the contested search and seizure. Here the defendant does not meet any of these criteria.
Defendant was charged in the second count of the indictment with endangering the lives of the bank tellers by use of a dangerous weapon. He is not charged with an offense in which possession at the time of the seizure is an essential element but is charged with an offense in which possession at an earlier time is an essential element. We hold that petitioner had no standing to contest the search of Briggs's trunk and the laundry bag.
Defendant also urges that Briggs's consent to search the trunk did not extend to items which did not belong to him, such as the laundry bag. Persons who are unwittingly thrust into the role of a participant in criminal activity may consent to a search of items which have been placed in their safekeeping in order to exculpate themselves from the alleged crime. United States v. Diggs, 544 F.2d 116 (3d Cir. 1976).
Thus, the circumstances of this search must be considered. The search of the car trunk and laundry bag occurred at the police station after the occupants of the car were arrested and after the weapons frisk had yielded a wad of bills and the money wrapper from the recently robbed Peoples National Bank. Dan Briggs, the owner of the automobile had consented to the search. When the laundry bag was discovered in the trunk, the agent lifted the bag and became suspicious because it was unduly heavy. He removed some clothing from the bag and found the sawed-off shotgun. Briggs said that he knew nothing about the bag or the gun.
It has been said that "searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). One such exception involves the warrantless search of automobiles, although the word automobile is "not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461-462, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
Unlike in the search of a home, probable cause can justify warrantless searches of automobiles for evidence of crimes. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 62 n.7, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (concurring opinion of Justice Harlan); Texas v. White, 423 U.S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304 (1975). However, certain factors must be present such as concern over the threat of destruction to suspected contraband or over the mobility of the vehicle. A search conducted at a police station is as great an intrusion as the concededly permissible course of holding the vehicle until probable cause can be determined by a magistrate. See Chambers v. Maroney, 399 U.S. at 46-52, where the court upheld the search of a car driven to a police station after defendant had been arrested.
Consent to a search is recognized as an exception to the warrant and probable cause requirements of the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). Consent to search is not lightly to be inferred, and the government has the burden of proving that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. at 548-549. We conclude that the evidence here clearly establishes Briggs's voluntary and knowing consent to the search of his automobile, even though Briggs consented only after his arrest. See Carpenter v. United States, 463 F.2d 397 (10th Cir.), cert. den. 409 U.S. 985, 93 S. Ct. 337, 34 L. Ed. 2d 251, 93 S. Ct. 337 (1972).
We are faced here with a situation similar to that addressed by the court en banc in United States v. Diggs, supra. Briggs's legitimate interest in exculpating himself from suspicion must be balanced against the expectation of privacy to be protected on behalf of the unidentified owner of the laundry bag. The circumstances of this case do not allow rote application of the principles that can be garnered from the plurality opinion in Diggs ; in that case the possessor of the small metal box frantically pleaded with the authorities to open the box and indicated that he would open it if they did not. In determining this balance we note United States v. Bussey, 507 F.2d 1096 (9th Cir. 1974), wherein the court pointed out that the consent of a participant in an attempted bank robbery to a search of the motel room where the group was staying was valid as to the common areas but did not extend to the defendant's personal luggage.
We conclude that the search and discovery of the sawed-off shotgun was within the parameters of the Fourth Amendment. Briggs's interest in exculpating himself, his control over the car, his consent, the officer's suspicion arising from the heavy weight of the laundry bag, the presence of money in the seats of the auto, in a bag in the front seat, and the discovery of money and a money-wrapper in McIntosh's sock prior to the search all tilt the scales in favor of the legitimacy of the search.
Defendant also asserts prejudicial error in the discrepancy between the testimony of Dan Briggs and that of Officer Hudson concerning the paper bag full of money later found in the car. Defendant relies upon Dan Briggs's statement that when he saw the bag prior to the stop by Officer Hudson it was closed (N.T. 203, 219, 221). On the other hand, Officer Hudson stated during the suppression hearing that when he looked in the car after it had arrived at the barracks the bag was open and he could see a considerable amount of money. We refused to reopen suppression hearing testimony to examine further the possibility that the officer conducted a warrantless search of the car before Briggs consented. We conclude that the defendant does not have standing to assert the Fourth Amendment rights of the occupants of the car. Under Brown v. United States, supra, lack of standing on this point is based upon defendant's denial of any possessory interest in the money, his absence from the scene at the time of the search, and inconsequence of possession of the money as an element of the offense of bank robbery. We do not need to inquire further into the evidentiary basis for this argument.
The Stop by Officer Russo
Defendant maintains that evidence of the stop of his automobile by Officer Russo on the day of the robbery should have been suppressed and all reference to his identification by the officer during the stop withheld from the jury. He was stopped by Officer Russo and then permitted to go on. Defendant's argument presumes an illegal stop of his automobile. The evidence reviewed in Section II above establishes that the stop was not illegal. Officer Russo stopped defendant's light green vehicle upon the basis of information he received over the radio describing the car involved in the robbery. The stop was made after the officer ascertained that the automobile belonged to Fred Lee Jones, a resident of Pittsburgh. Under these circumstances, the officer was justified in making an investigatory stop to ascertain the driver's identification.
The defendant at all times cooperated during the stop -- he freely answered questions concerning the robbery (maintaining his innocence), even voluntarily consented to open his car trunk, and was finally allowed to go on his way. We conclude, therefore, that the stop was an investigatory stop, that the facts warranted this intrusion, and that the scope of the intrusion was reasonably related to the circumstances justifying the interference in the first place. United States v. Collins, 532 F.2d 79 (8th Cir.), cert. den. 429 U.S. 836, 97 S. Ct. 104, 50 L. Ed. 2d 102 (1976); United States v. Harris, 404 F. Supp. 1116 (E.D. Pa. 1975). If defendant's Fourth Amendment rights were not violated, and we hold they were not, there is no merit to defendant's assignment of error to the court's denial of his motion to amend the motion to suppress so as to include Officer Russo's testimony and identification of defendant.
Defendant also asserts that he was denied a fair trial by the government's failure to make known to his attorney prior to trial the contents of a statement defendant made when he was stopped by Officer Russo. He had explained his presence in the New Castle vicinity by indicating that he was trying to get to Aliquippa but was lost. Defendant's attorney maintains that Fed. R. Crim. P. 16 has been violated, thereby prejudicing his presentation of the case.
Counsel asserts that the statement was made without the defendant having been given his Miranda rights and therefore was made in violation of his constitutional rights. The statement was given under circumstances which did not indicate an arrest or custodial interrogation; therefore Miranda does not apply. Steigler v. Anderson, 496 F.2d 793, 798-800 (3d Cir.), cert. den. 419 U.S. 1002, 95 S. Ct. 320, 42 L. Ed. 2d 277 (1974).
The government maintains that defendant's attorney was well aware, or should have been aware, of the existence of the explanatory statement prior to trial. While we can find nothing in the record to support the government's contention that it informed the defendant's attorney of the statement prior to trial, we note that the statement did come out at trial and that the government explained that it fully believed the defendant's attorney was apprised of the statement before the beginning of the trial.
In examining the "penalty" provisions of Rule 16 the court
"may order such party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances."
We do not see how the admission of defendant's explanatory statement, to explain his presence in the area, prejudiced his presentation of the case. The rule specifically provides that as a remedial measure the court, in its discretion, may order the discovery or inspection of the statement at the time its existence becomes known to the court. We cannot conclude that this asserted violation of Rule 16 had any prejudicial impact against the defendant. See also the recent opinion in United States v. Kaplan, 554 F.2d 577 (3d Cir. 1977).
After thoroughly reviewing all of the points raised by defendant, we find no reason to set aside the verdict of the jury.
An appropriate order will be entered.
MAURICE B. COHILL, JR. / UNITED STATES DISTRICT JUDGE
AND NOW, to-wit, this 22nd day of April, 1977, IT IS HEREBY ADJUDGED, DECREED AND ORDERED that defendant's motion for judgment of acquittal, or in the alternative, for a new trial, be and is denied.
IT IS FURTHER ORDERED that May 5, 1977 at 9:00 A.M. be set as the time for sentencing in Courtroom 15, 7th Floor, United States Courthouse and Post Office, Pittsburgh, Pennsylvania.
MAURICE B. COHILL, JR. / UNITED STATES DISTRICT JUDGE