APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Seitz, Chief Judge, Rosenn, Circuit Judge, and Lord, District Judge.*fn* Joseph S. Lord, III, District Judge, dissenting.
The appellants, Peeks, Brightwell and Spence appeal their conviction.
Appellant, Thomas Peeks, makes the following contentions: (1) that the evidence seized from the Brightwell residence was obtained in violation of the Fourth Amendment prohibition against illegal searches and seizures and should have been suppressed by the trial court; (2) the trial of the co-defendant jointly was prejudicial to defendant Peeks and denial of defendant's motion for severance constituted prejudicial error; (3) denial of defendant's motion for change in venue constituted error since defendant was unable to obtain trial by an impartial jury; (4) the pretrial publicity reporting on defendant's trial, as well as on more generalized criminal activity undertaken by identified black groups precluded a trial consistent with standards of due process; (5) the impanelment of an all-white jury was inherently prejudicial to appellant; (6) under the totality of the circumstances of this case, appellant was denied due process and a fair jury trial.
Appellant, David Brightwell, makes the following contentions: (1) that the court erred in sustaining a warrantless entry and search and seizure without a clear showing of probable cause and exigent circumstances; (2) that the court abused its discretion in permitting a witness to make identification by voice analysis without sufficient inquiry into the competency of the witness to testify, especially when the witness' testimony was speculative and was in the nature of an opinion; and (3) that the court erred in refusing to dismiss an impaneled jury which did not properly reflect a cross-section of the community.
Appellant, Stephen Spence, makes the following contentions: (1) that the court erred in refusing to suppress the evidence found in the home of co-defendant David Brightwell on the grounds that same was obtained as a result of an illegal search and seizure, in violation of appellant's rights under the United States Constitution, and permitting said evidence to be introduced against appellant at trial; (2) that the court erred in refusing appellant's requested jury instructions and in failing to instruct the said jury that, although the law authorizes an inference of guilt of theft from possession of recently stolen goods, the jury is not required nor instructed to draw such inference; (3) that the court erred in refusing appellant's requested jury instructions and in failing to instruct the said jury that, in order to find that the appellant "aided and abetted" in the bank robbery, they must find that appellant had prior knowledge of the robbery; (4) that the court erred in refusing to grant appellant's Motion for Severance prior to trial; (5) that the court erred in refusing to grant appellant's Motion for Acquittal at the close of all the testimony; (6) that the jury verdict was against the weight of the evidence; and (7) that the court erred in refusing to dismiss the charges because of the government's failure to afford the appellant a speedy trial as required by the United States Constitution.
We have examined the record of the joint trial as well as the opinion of the district court and the briefs on appeal. We think such examination supports the conclusion that no error was committed by the district court. We note particularly that the facts found by the district court in its unreported opinion fully support its conclusion that the requisite probable cause and exigent circumstances existed to support warrantless entry and search of the Brightwell residence and the subsequent plain view seizure.
The judgments of the district court will be affirmed.
The judgments of the district court will be affirmed.
JOSEPH S. LORD, III District Judge, dissenting.
Defendants Brightwell, Peeks and Spence appeal their convictions for bank robbery, 18 U.S.C. § 2113(a), and putting lives in jeopardy with a dangerous weapon during that robbery, 18 U.S.C. § 2113(d), citing numerous grounds for reversal. While I find that most of defendants' contentions are clearly without merit, I disagree with my Brethren's conclusion that probable cause and exigent circumstances justify the warrantless entry and search of the Brightwell residence.
Before trial, defendants moved to suppress evidence seized from Brightwell's home. The trial court held a hearing on this motion and in an unreported opinion, dated March 24, 1976, the court ruled that the warrantless entrance of Brightwell's home was justified under the "hot pursuit" doctrine and that once inside the dwelling the warrantless seizure of evidence was supported by the "plain view" exception to the warrant requirement. On appeal the majority has accepted the trial court's analysis.
An understanding of the factual situation leading to the seizure of evidence in Brightwell's residence is essential to the analysis of the hot pursuit exception. The evidence elicited at the suppression hearing and the trial court's findings in its opinion provide the basis of the following summary.
The bank robbery and subsequent seizure of evidence at Brightwell's residence occurred during the afternoon of February 14, 1975. At approximately 12:41 P.M., the Camden Police Department received an anonymous telephone call from a woman who reported that there was a "suspicious" green 1974 Chevrolet Monte Carlo, bearing Pennsylvania license plate 73N726, located in a back alley on the 1200 block of Lake Shore Drive, Camden and that three individuals were in the vicinity acting in a "suspicious" manner. The caller did not describe what she meant by "suspicious." In response to this call, the Camden Police sent a unit to investigate.
At 12:50 P.M. the Camden Police received a call that an armed robbery was in progress at Peoples National Bank in nearby Woodlynne, and that a 1963 Chevrolet was used as the getaway car. A police unit was immediately dispatched to the scene.
At approximately 1:05 P.M. a report was received that a brown 1963 Chevrolet, bearing New Jersey license plate NEW 192 had been stolen from a Pathmark parking lot located approximately one-quarter mile from Peoples National Bank. The police concluded that this stolen ...