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October 26, 1979


The opinion of the court was delivered by: SNYDER

Defendant Isaac Prescott, charged with bank robbery at the First National Bank of Mercer County, Farrell, Pennsylvania, in violation of 18 U.S.C. §§ 2113(a) and (b), has filed pretrial motions seeking to suppress a statement and physical evidence illegally obtained, a motion to conduct a lineup and a blank lineup, and a motion to suppress eyewitness testimony on the grounds that photographic displays were unduly suggestive. After due consideration of the testimony presented, and after argument by counsel, the motion to suppress certain physical evidence will be partially granted, the motion for a lineup will be denied, the motion for a blank lineup will be denied, and the motion to suppress eyewitness testimony will be denied.

I. Motion to Suppress Statement and Physical Evidence

 Defendant seeks to suppress the use of fingerprints and photographs taken following his arrest by the Youngstown Police *fn1" on August 25, 1979, based on the allegation that the arrest was without probable cause.

 Richard Hart, the Youngstown police officer who, with his partner, arrested Prescott, testified he had been dispatched by radio to the emergency room of Youngstown's Northside Hospital at approximately 5 A.M., August 26, 1979, in response to a call from the security officers at the Hospital stating that Prescott refused to leave the premises. Upon arrival, the officers found Prescott in the waiting area of the emergency room and he stated that he was waiting for a taxi. While Prescott could not say where he lived, he did hand over to the officers his wallet containing a receipt for a room at the Y.M.C.A. Prescott says he was suffering at the time from an overdose of cocaine, but Hart testified that, other than not recalling where he lived, Prescott appeared to be normal and was not disoriented. Hart stated he verified by telephone the fact that Prescott did have a room at the Y.M.C.A., with the rent paid through August 25, 1979. Hart found out that the Federal Bureau of Investigation (FBI) was looking for Prescott, although he was not told at that time the reason for the FBI's interest in him. Hart also learned at the Hospital that Prescott was a Hospital employee with a history of previous discipline problems, that he was at that time on "sick leave", and was informed by the security guard that he would file a criminal trespass complaint against Prescott. It was at this point that Hart and his partner arrested Prescott. He was taken to the Youngstown lock-up, was booked on a charge of criminal trespass, and on the following day, the security guard filed the formal complaint.

 Recently, in Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), it was held that a warrantless arrest is constitutionally permissive if the facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person's belief that the suspect is committing, or Is about to commit, an offense. Thus, the validity of the arrest does not depend on whether the suspect has in fact committed the offense at the time of arrest. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).

 The Defendant submits that technically he could not be guilty of trespass since he was merely in the Hospital waiting for a taxi after his release, or, in any event, because he was an employee of the Hospital, although on sick leave at the time of his arrest. But, as we have seen, this is not determinative of the question raised. To the contrary, we believe, the record indicates that Prescott's arrest by the Youngstown Police for criminal trespass was clearly with probable cause. The information received by Hart from the Hospital's security guard indicated that Prescott refused to leave the premises, although he was requested to do so, and was demanding treatment which the Hospital had refused to give. There was a clear indication that Prescott was committing a criminal trespass, and the arrest was thus with probable cause.

 By a motion to amend the Defendant's motion to suppress, which we have allowed, Prescott contends that the violation for which he was arrested was a misdemeanor of the fourth degree (Ohio Stat. § 2911.21; § 2929.21, setting forth the penalty for violation of misdemeanors; § 2935.03, authorizing arrest without a warrant when the offense is being committed in the officer's presence). Although the motion to amend sets forth that the Government consented to the grant of the motion, upon inquiry by the Court, the Government has refused to take any position whatsoever with respect to the motion. Noting that the motion did not request additional hearing, and believing we should consider the substance of the motion, the motion to amend was granted.

 The amended motion then avers that Prescott's arrest was without legal authority because the Defendant was arrested for criminal trespass when the misdemeanor was not being committed in the officers' presence. The testimony, however, was to the contrary that the officers' sole interest in Prescott was in seeing that he left the premises and, when he refused to leave in their presence, they then took him to the lockup. We are not unmindful that the officers knew at that time that the FBI was looking for Prescott, but the officers had probable cause to arrest Prescott, and did so. It was his commission of an offense in their presence for which he was arrested, and not because of any information they had received from the FBI. The motion to suppress the fingerprints and photographs taken at the time of arrest will be denied.

 II. Consent to Search

 Following Prescott's 5 A.M. arrest, FBI Agents Roberts and Wilson of the Youngstown Office arrived at the Jail at approximately noon to interview Prescott about the robbery. Prescott was advised of their identity as FBI Agents, read his constitutional rights, *fn2" and signed the waiver of rights form *fn3" and a consent to search form. *fn4" Prescott admits signing the waiver of rights and consent to search forms but claims that he did not read them because his eyes were scratchy, that he was still recovering from dope, and he only signed the forms because the Agents told him it would be helpful to do so, and that they never explained to him exactly what the forms meant.

 Agent Roberts testified that Prescott walked into the room and, except for bloodshot eyes and looking like he needed sleep, he was responsive and cooperative. Roberts told Prescott that signing the forms was strictly voluntary and that he could refuse to do so. Roberts said that Prescott apparently read the forms, as he saw his lips moving. No one, including Prescott, indicated Prescott might be on drugs or intoxicated, and he appeared to Roberts to be normal except that in the interview it was only after considerable prodding that Prescott remembered recent events. After obtaining the consent to search from Prescott, the Agents searched the room at the Y.M.C.A. which was rented to Prescott, and the return shows:

"August 26, 1979
Youngstown, Ohio
Pursuant to a written consent signed by ISAAC M. PRESCOTT, JR., a search was conducted of Room 509, YMCA, Champion St., Youngstown, Ohio, by Special Agents MILLARD J. ROBERTS, JR. and HARRY J. WILSON of the Federal Bureau of Investigation (FBI). The following items were removed from Room 509 during this search:
1. Message dated 8/22 indicating someone brought keys Message left re money.
2. Message dated 8/22 indicating person left car with ...

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