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United States v. Butts

April 14, 1983



Author: Rosenn

Before: GIBBONS, HUNTER and ROSENN, Circuit Judges


ROSENN, Circuit Judge.

Appellant Cheyenne Morgan (Morgan) was convicted of one count of possession of a government check stolen from the mail in violation of the Act of June 25, 1948, 62 Stat. 779, as amended, 18 U.S.C. ยง 1708. He here, challenges his conviction, urging that the police lacked probable cause to arrest him and that the statement they obtained from him following his arrest was therefore inadmissible as evidence. Appellant's contention is meritorious and we reverse.


The events leading to Morgan's arrest occured as part of an investigation by federal postal inspectors into thefts of United States Treasury checks from the mails. The investigation focused on a photographer's studio, the Chircosta Photo Studio (the Studio) in Pittsburgh, Pennsylvania, where the postal inspectors believed many persons were obtaining the photographic identification necessary to cash the stolen checks. The postal inspectors stationed an agent inside the Studio to observe customers requesting photographic identification cards, and another agent outside the Studio to follow any customer suspected of stealing a Government check.

On April 2, 1982, the date of Morgan's arrest, postal inspector Leverone was stationed inside the Studio. Between 10:00 and 10:30 A.M. Morgan's co-defendants, Monroe Butts and John Passanante, entered the Studio and requested identification cards. The sales clerk gave the men an application form to be filled out.Passanante filled out the form by copying information from a piece of paper given him by Butts. Butts then signed the application and had his photograph taken. After Butts and Passanante left the photo studio, the sales clerk described these events to Leverone, telling him that the men had explained that Butts could not complete the form himself because he had an injured arm. Finally, she mentioned that she had notice a green check in Butts' pocket.

Leverone reviewed the application and noted that the address and zip code used on the application were from a neighborhood that had a very high rate of mail theft. He relayed this information via telephone to postal inspector Trainor, who was in charge of the operation and who was located in the postal inspection office. Trainor then radioed two surveillance teams stationed outside the studio and instructed them to follow and apprehend Butts and Passanante.

Two agents, Johnson and Reddington, followed directly behind Butts and Passanante, who were walking along a street. Two more agents, Elder and O'Hara, followed from across the street. Butts and Passanante approached a parked car. The four agents also approached the car and at about this time two of the four agents noticed the check in Butts' pocket. Agent Elder then noticed appellant Morgan sitting in the back seat of the car, and he ordered Morgan out of the car. In the meantime, agent Johnson identified himself to Passanante as a postal inspector, while Reddington began questioning Butts about the check. When Butts told Reddington that the check did not belong to him, Butts, Passanante, and Morgan were all taken down to the postal inspector office for further questioning.

At the postal inspection office, during separate interviews, Butts, Passanante, and Morgan all waived their Miranda rights and completed written statements admitting possession of the stolen check. The proceedings at the postal inspector's office took approximately four hours.

Butts, Passanante, and Morgan were subsequently charged with possession of a stolen check and brought to trial in the Western District of Pennsylvania before Judge Cohill. Following a suppression hearing, Judge Cohill ruled that he would not exclude the confessions of any of the three defendants. Each of the defendants then pleaded guilty, reserving the right to appeal the issue concerning admission of the confessions presented at the suppression hearing.*fn1 In separate orders we have affirmed the convictions of defendants Butts and Passanante,*fn2 but we now reverse the conviction of defendant Morgan for the reasons discussed below.


In deciding whether the district court erred by admitting defendant Morgan's confession we must ask two questions. First, we must ask whether the authorities had probable cause to arrest Morgan for constructive possession of a stolen check. Second, we must ask whether, assuming the authorities lacked probable cause, the confession should have been excluded as the fruit of a poisonous tree, or whether some intervening even had purged the taint of the improper arrest ...

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