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United States v. Ziemer

June 13, 1961


Author: Schnackenberg

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.


Following a trial without a jury, the district court adjudged the defendant, Glen William Ziemer, guilty on three counts of an indictment charging counterfeiting operations in violation of 18 U.S.C.A. ยง 474, and sentenced him to four years imprisonment for each violation, to be served concurrently. Appealing therefrom, he relies on the failure of the court to grant his motion to suppress evidence. The court held a hearing on the motion. We state the salient parts of the evidence.

A former roommate of defendant reported in April of 1956 that a suit had been stolen. On March 3, 1960, Milwaukee police officers Franklin and Marx were ordered to talk to defendant about the theft of the suit and certain bed clothing. The officers testified that they entered the building in which defendant's rooms were located and were then directed to his door. In response to their knock, defendant, while partially clad, opened the door. The officers identified themselves, and defendant said he was Ziemer. He then put on his trousers in the doorway and talked about the stolen suit of clothes. Defendant became very nervous. When the officers asked if they could come into the room, he answered "I would rather not." Defendant asked why the officers seemed so interested in coming into the room, to which they replied they had asked for permission to look for the clothing, and that, if he had no knowledge of it, he would have nothing to hide. Thereupon defendant said "you may enter my room and you may look." He thereupon moved to one side of the door from the center where he had been standing. The door was open as far as the furniture in the room would permit.

Defendant testified that, when the officers asked, "You seem awfully interested in keeping us out; what have you got in there?", he said "Well, you can see what's here; there's a bed, television set and a dresser, and that's all there is in here." Then one of the officers said "You really don't mind if we come in, do you?" and defendant said "I certainly do mind." According to defendant, the officers came in and he "had to back up and * * * they were in the room". Defendant opened the door to an adjoining room to turn off a red photographic bulb burning there and the officers followed him.

Officer Franklin's testimony, covering events occurring after defendant said the officers could look for the clothing mentioned in the theft complaint, we set forth:

"Officer Marx proceeded first; I followed. In Mr. Ziemer's presence we moved to the closet which is a large walk-in type, and Officer Marx proceeded first in the closet. Mr. Ziemer followed Mr. - Officer Marx and I followed Mr. Ziemer, so Mr. Ziemer was between us. Officer Marx and I observed a pair of trousers which was lying on a book which covered a pan. Officer Marx picked up the pair of trousers and, in doing so, the book fell to the floor. In looking into the pan, about that far under the solution (indicating) there was what appeared to be a negative of a ten-dollar bill. Officer Marx moved to the doorway and into the bedroom proper. Lying on the floor was a flashlight. He picked this flashlight up, stepped back into the closet, shown its beam onto the tray, and at that time we did identify it as a negative of a ten-dollar bill and placed Mr. Ziemer under arrest."

After he was placed under arrest, Ziemer was asked if he had any more negatives or counterfeiting equipment in the room and he said, "Yes. I'll show you." He walked from the closet to the bed from under which he pulled a suitcase, opened it and showed the officers partially completed noted and some copper engraved plates. Pictures were taken of the equipment seized from Ziemer, and of the bed, two presses, a camera, a whirler, various chemicals, copper plates and counterfeit United States currency notes, as well as a belt worn by Ziemer, containing two places of concealment where he had $300 of legitimate money.

Defendant also testified that he requested Betty Koepsel to testify that she overheard him tell the detectives that they couldn't come into his room. However, she testified that Ziemer came to her apartment and requested her to testify that she overheard Ziemer tell the detectives that they couldn't come into his room, and that she told him she couldn't so testify because she didn't see or hear anything, whereupon Ziemer told her that "it wouldn't matter because nobody could prove that you weren't telling the truth".

Defendant testified that in 1941 he was convicted of a felony, possession of counterfeit material.

After hearing the testimony of all witnesses for both the government and the defendant and having an opportunity to observe their demeanor, the district court made this finding:

"Believing the testimony of the police officers and disbelieving that of the defendant, the court finds that the defendant voluntarily and knowingly consented to the search for the clothing and that while the officers were there with permission for that purpose, they saw the counterfeiting material and thereafter placed defendant under arrest. Defendant's motion for the return of seized property and suppression of evidence is hereby denied."

In United States v. MacLeod, 7 Cir., 207 F.2d 853, at page 854, we said:

"* * * The District Court, after hearing testimony upon this disputed factual issue, made the findings above noted. In reality, the only question for our consideration is whether the record ...

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