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March 28, 1984


The opinion of the court was delivered by: MARSH


The defendant, Lexie Little Carter, was indicted on October 25, 1983 for five counts of bank robbery under 18 U.S.C. ยง 2113(a). A plea of not guilty to said charges was entered on November 4, 1983 before United States Magistrate Ila Jeanne Sensenich. On December 6, 1983, the defendant changed his plea to guilty of all the charges before this member of the court. Subsequent thereto, Carter forwarded letters to the court requesting permission to withdraw his plea of guilty. These letters were ordered to be filed as a motion to withdraw guilty plea and a hearing on said motion was held on December 19, 1983. Subsequent to said hearing, an order was entered permitting the defendant to withdraw his guilty plea and enter a plea of not guilty.

 Thereafter, the defense filed a motion to suppress statements, motion to suppress identification testimony, motion to suppress evidence seized from an automobile, and a motion to sever counts. Hearings were held on said motions on January 4, 5, and 6, 1984. At the conclusion of said hearings, the court ordered findings of fact and conclusions of law from the parties. The defendant's findings of fact and conclusions of law were filed on February 27, 1984; the government's findings of fact and conclusions of law were filed on March 16, 1984.

 After a review of said findings, the defendant's motions, and the transcripts of proceedings, the court will deny the defendant's motions to suppress.


 The defendant, Lexie Little Carter, has filed a motion to suppress statements asserting that certain statements should be suppressed as the fruits of an unlawful arrest citing Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). Defendant further alleges that at the time the statements were made he was under the influence of drugs. As a result, his will was allegedly "easily overborne" (Paragraph four of the motion) and he, therefore, implies that the requisite voluntariness was lacking. Also raised as a factor going to the suppression of statements is defendant's contention that interrogation did not cease when defendant requested an attorney and no attorney was provided. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

 Defendant further alleges that he was under "considerable emotional and psychological pressure to confess brought to bear on him by the State and Federal officers who questioned him incessantly." Therefore, defendant contends the statements were given as a result of psychological coercion in violation of his due process rights under the Fifth Amendment to the Constitution of the United States.

  The Arrest

 We shall begin with a review of the facts and circumstances incident to the defendant's arrest on September 21, 1983.

 The defendant was arrested pursuant to a valid arrest warrant. The affiant to said warrant, City of Pittsburgh Police Detective Regis Smith, described the basis for said warrant in detail at the hearing (Tr. p. 82). Defendant was identified by Allegheny Detectives James Heyl and Peter Kempton and by City of Pittsburgh Police Detective Smith from a surveillance photograph of a robbery of the Swissvale Branch of Equibank N.A. and had also been identified by Donna Harris, *fn1" a teller at the Pittsburgh National Bank, on Liberty Avenue which was robbed on September 14, 1983.

 On the day of the arrest, September 21, 1983, five Pittsburgh Police Detectives staked-out the defendant's apartment. At approximately 5:15 p.m., defendant drove down Locust Street approaching his apartment. Detective Leonard received a radio transmission from Detective Hynes advising him that defendant was driving on Locust Street. Detective Leonard and his partner, Joseph Figura, proceeded to block the roadway with their car. Detectives Hynes and Smith, also from the City of Pittsburgh, were behind the defendant's car. Carter stopped his car, got out of the car, put his hands on the roof, and was patted down (Tr. p. 29). Detective Hynes read Carter the Miranda warnings, secured the arrest, and read the warrant to Carter while sitting in his car (Tr. p. 149).

 Detective Hynes proceeded to search the car and found a long barrelled pistol (which turned out to be a pellet gun) sticking out from underneath the driver's seat (Tr. p. 29).

 With respect to the above facts and circumstances incident to the arrest warrant, arrest, and seizure of the pellet gun, we find no merit to the defendant's allegations that the arrest was illegal. There is no hint of impropriety in any of the procedures utilized by the police who participated in Carter's arrest.

 The Interrogation and Statements Provided by Defendant

 We next review the facts surrounding the defendant's in custody interrogation.

 After his arrest, Carter was taken to the City of Pittsburgh Public Safety Building, Police Robbery Office. Ronald Bernot, a detective in the Pittsburgh Police Department, read the defendant his rights at approximately 5:45 p.m. on the day of the arrest, September 21, 1983 (Tr. pp. 52-53; Government Exhibit No. 1). The defendant's rights were read to him from a standard Pittsburgh Police Department pre-interrogation warning form. The defendant signed the form (Government Exhibit No.1), which was witnessed by Detective Bernot (Tr. p.53). Said form indicates Carter waived his rights and was willing to respond to questions without a lawyer being present. Carter also signed Miranda rights and warning forms read to him by Allegheny County Police (Government Exhibit 3) and by FBI Agent Ralph Young (Government Exhibit 7). He waived his rights on these forms as well. The FBI "Interrogation: Advice of Rights" form was signed at 8:47 p.m. (See Government Exhibit 7).

 After reading defendant his rights and obtaining a waiver, Agent Young proceeded to question defendant on five different bank robberies in chronological order (Tr. p. 62). The method used was to show the defendant an FBI dissemination memo identifying the robbery and a bank surveillance photograph (Government Exhibits 9, 10, 11, 12, and 13). *fn2" After the presentation of each dissemination memo and surveillance photograph, Carter admitted to committing each robbery and initialed both the dissemination memo and the photograph relating to each particular bank robbery (Tr. pp. 62-65). FBI Agent Young described the atmosphere during interrogation as "cordial and (sic) cooperative" (Tr. p. 65). Detective Heyl of the Allegheny County Police characterized the atmosphere during the interrogation as "friendly" (Tr. p. 26 and and p. 172).

 Although we recognize that a defendant could be intimidated during an interrogation involving three different law enforcement organizations (the City and County Police and the FBI), we specifically find no intimidation or coercion under the facts and circumstances of this case as elicited at the hearings on January 4, 5, and 6, 1984 (Tr. p. 73 and p. 172).

 Carter completed his oral statements concerning the bank robberies at approximately 9:08 p.m. (Tr. p. 67), and was then taken for arraignment to the local magistrate in the Public Safety Building (Tr. p. 67). He returned to the interview room around 11:00 p.m. (Tr. p. 67) and was asked if he was willing to give a taped statement. He declined and said he wished to speak to a lawyer and interrogation ceased (Tr. p. 67 and 166).

 Considering the above enumerated facts and circumstances (including the fact that Carter was familiar with an advice of rights form having been a County Police Officer), *fn3" in connection with the defendant's in custody interrogation and oral statements admitting he committed the five bank robberies, we find no merit to defendant's motion to suppress statements. This conclusion is bolstered by the fact that defendant voluntarily initialed memoranda describing each bank robbery and initialed the surveillance photograph. There was no violation of defendant's Fifth Amendment due process rights, nor was there a violation of procedures dictated by Miranda, supra.

 An appropriate order will be entered denying defendant's motion to suppress statements.

 We shall next address defendant's motion to suppress identification testimony.


 The defendant avers that subsequent to his arrest on September 21, 1983, a line-up was held at which certain witnesses identified the defendant as the bank robber. Defendant further alleges that said line-up was illegal in that the authorities used prejudicial procedures and that the line-up was held without counsel being present, that the line-up was unduly suggestive, and that photographic arrays were provided to witnesses which were unduly suggestive. All of the above is alleged to be a violation of the defendant's Fifth Amendment rights to due process. We find no merit to these contentions.


 On October 3, 1983, a line-up was conducted. Detective Norman Leonard identified the photographs of said line-up (Government Exhibits 14A, 14B, 14C, 14D, and 14E; Tr. p. 197). The photographs show that five black males of varying height, weight, and build, and wearing different apparel, participated in the line-up. The defendant was in the number one position at the line-up. Each participant in the line-up was required to recite two phrases: "Don't you move" and "Do as it says" (Tr. p. 199).

 The identifying parties (five victims from the banks involved-Tr. pp. 206-207) were properly instructed not to look at each other or speak to anyone. They were seated in such a way as to be separated and were instructed that if they recognized any party in the line-up, they were to fill out a form circling the number of the party (Tr. p. 199).

  The defendant was represented by Attorney James Ecker at the line-up and Mr. Ecker made no objections prior to the start of the line-up (Tr. p. 213) or after the line-up (Tr. p. 214). Two bank tellers, Anne McGough and Charlotte Close, made positive identifications of the defendant. Said tellers circled the number one, the number of the defendant, and signed their names to the forms (Tr. p. 201).

 We have reviewed the photographs of the line-up (Government Exhibits 14A to 14E) and find that the line-up was not prejudicially suggestive, nor were the procedures of the line-up improper.

 Defendant's allegation that counsel was not present at the line-up is not supported by the record. Attorney James Ecker was present at the line-up and did not object to the procedures utilized, either before or after the line-up took place.

 With respect to the photographic arrays (Government Exhibits 15 and 18) shown to the witnesses to the bank robberies, we do not find them unduly suggestive.

 Accordingly, an appropriate order will be ordered denying the defendant's motion to suppress identification testimony.


 The defendant has moved to suppress a "starter pistol." The pistol, *fn4" specifically, a Crossman pellet gun, taken from the defendant's motor vehicle.

 From August 25, 1983 through September 14, 1983, five banks were robbed in Allegheny County, Pennsylvania. The defendant, Lexie Little Carter, was identified as the robber of the Swissvale Branch of Mellon Bank, pictured in a surveillance photograph by Detectives James Heyl and Peter Kempton. He was also identified by the victim teller, Donna Harris, in the Swissvale surveillance photograph as the person who robbed her in the Liberty Avenue, Pittsburgh National Bank on September 14, 1983.

 On September 21, 1983, Detective Regis Smith secured an arrest warrant for the defendant from City of Pittsburgh Magistrate Beverlee DeStein.

 At 5:15 o'clock in the afternoon, the defendant was arrested as he arrived in his car near his residence on Locust Street in the Mt. Oliver area.

 The officers ordered the defendant to get out of his car. As he started to do so, Officer Hynes looked into the car and saw on the floor between the defendant's legs the handle of a gun. When defendant got out of the car, Officer Hynes reached inside the car and removed the gun which was a long barrel pistol that turned out to be a pellet gun.

 Under the facts and circumstances of the above-described arrest and seizure, it is our opinion that the defendant's constitutional rights were not violated by the arresting officers. Undoubtedly, he was in constructive possession of a pellet gun on the floor of his car between his legs, a part of which was in "plain view". Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).

 In New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), the Supreme Court set forth a rule on the permissible scope of a search incident to the arrest of a person in an automobile. In the case at hand, there could be no question that the arrest was based on probable cause.

 In Belton, supra, an automobile in which the defendant was a passenger was stopped by a New York State policeman for travelling at an excessive rate of speed. The police officer in determining that none of the four occupants owned the car, smelled marihuana, and viewed an envelope suspected of containing marihuana which was on the floor of the car. The occupants were directed to exit the car and the policeman arrested them for possession of marihuana. Each occupant was searched and the passenger compartment of the vehicle was searched. A jacket belonging to Belton was found in the passenger compartment. On unzipping the pockets of the jacket, the policeman discovered cocaine. Belton was subsequently indicted for possession of a controlled substance. The trial court denied Belton's motion to suppress the cocaine and the Appellate Division of the New York Supreme Court upheld the decision of the trial court. The New York Court of Appeals reversed.

 Justice Stewart in an opinion upheld the arrest and seizure stating:


"It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so. This Court has recognized, however, that 'the exigencies of the situation' may sometimes make exemption from the warrant requirement 'imperative.' McDonald v. United States, 335 U.S. 451, 456, [93 L. Ed. 153, 69 S. Ct. 191]. Specifically, the Court held in Chimel v. California, 395 U.S. 752, [23 L. Ed. 2d 685, 89 S. Ct. 2034], that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need 'to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape' and the need to prevent the concealment or destruction of evidence. Id., at 763."

 Belton, supra, at p. 457.

 We agree with the analysis in Belton and, accordingly, will enter an order denying the defendant's motion to suppress the "starter pistol," i.e., the pellet gun.

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