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.
MOTION TO SUPPRESS EVIDENCE SEIZED FROM AUTOMOBILE
The defendant has moved to suppress a "starter pistol." The pistol,
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.