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United States v. Gregg

June 26, 1969


Hastings and Knoch, Senior Circuit Judges, and Kerner, Circuit Judge.

Author: Knoch

KNOCH, Senior Circuit Judge.

The defendant-appellant, John McMillan Gregg, and his co-defendant who is not involved in this appeal, were found guilty after trial by jury of violating Title 18, U.S.C. ยง 2113(a), robbery of a national bank. Appellant was sentenced to serve eighteen years in prison.

Appellant seeks reversal of his conviction on three grounds: (1) he contends that evidence was improperly admitted at his trial which although allegedly obtained in a search incidental to arrest actually was secured through a later search at the scene of arrest by Federal Bureau of Investigation agents after Indianapolis Police officers who made the arrest had removed the co-defendant and turned him over to the F.B.I. agents who arrived after the arrest had been made;

(2) he argues that inadmissible eyewitness testimony was adduced at the trial which resulted from an improper "line-up" in that eyewitnesses to the robbery were told to "go downtown and identify the robbers," and then shown the suspects singly;

(3) appellant characterizes as reversible error the denial of his unopposed motion for discovery under Rule 16, Federal Rules of Criminal Procedure, to inspect items seized from him and intended for use as evidence at his trial.

It was stipulated that the Linwood Branch of the Merchants Bank and Trust Company of Indianapolis, Indiana, is a national bank situated in the Southern District of Indiana.

With respect to the appellant's first point, we have closely scrutinized the evidence adduced at the hearing on the motion to suppress and at the trial itself. Appellant concedes that a legal arrest of the co-defendant by the Indianapolis Police officers occurred and that evidence secured through a simultaneous search by those officers would have been admissible. He contends that the arrest was complete when the federal agents arrived and that those agents could not engage in a search "incidental" to an arrest in which they had not participated. He sees two separate operations: (1) Indianapolis Police found and arrested his co-defendant, (2) F.B.I. agents found and arrested appellant and then searched the room outside which the co-defendant was arrested: Room 205 of the Mohawk Motel.

No objection is here raised to the contents of the two bags found in the possession of the two defendants at the time of arrest or the items on their persons. These items included money and weapons. Appellant's argument is directed to the evidence secured by search of Room 205 of the Mohawk Motel and of the automobile parked in its vicinity.

The search of the automobile, itself used in the commission of the crime, was conducted promptly at the scene of the arrests with keys recovered from Room 205, unlike the automobile search condemned as too remote to meet the test of reasonableness in Preston v. United States, 1964, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777, where the automobile was searched at police headquarters after its removal from the scene of the arrest.

We are satisfied that there was ample evidence to support a finding that this was an investigation cooperatively conducted by state and federal authorities. Numerous items of the testimony justify that. We note some examples.

Testimony at the trial and at the hearing on the motion to suppress indicated that about 10:45 A.M., July 18, 1966, the Bank was robbed of an amount in excess of $12,000 by two armed men. At the hearing on the motion to suppress, the evidence showed that in a very short time after the robbery Indianapolis Police Officers and F.B.I. agents were at the scene of the crime interviewing the branch manager, the bank tellers and a customer who witnessed the robbery. The witnesses described the two robbers as attired in straw hats, white shirts, khaki trousers and sunglasses. One man was said to be somewhat shorter and stockier than the other who was about six feet tall. The descriptions were promptly broadcast over police radio. About an hour later an automobile description and license number were broadcast with the explanation that an unnamed witness reported seeing two men changing clothes at Linwood and Washington Street in such an automobile.

Indianapolis Police Officer John Charles Gillespie on routine patrol, having heard the descriptions on his patrol car radio, checked motels, reaching Mohawk Motel on East Washington Street at 1:23 P.M. where his inspection of the Motel records and the area disclosed a Plymouth 1966 automobile, black over tan in color, with Ohio license plates No. 62125, and a damaged rear, which met the description previously received. Officer Gillespie called for assistance. In response to his call, Police Sergeant Anthony Price, Jr., who had also heard the broadcasts, reached the Motel between 1:30 and 1:35 P.M. With Officer Gillespie, he viewed the automobile, through the window of which they saw straw hats on the floor and an object in a case which could be a rifle.

Sgt. Price called for additional assistance. In response to that call, Police Lieutenant Paul Pearsey, who had been at the Bank and who received a description of the robbers and who had also been out in a patrol car, arrived between 1:35 and 1:40 P.M., and directed further operations. Having verified with the desk clerk the information given Officer Gillespie that the automobile in question had been brought in by two men, who were registered as in Room 205, under the names John Kelso and Robert Satterfield, Sgt. Price waited outside that room. In a few minutes a man, whom he identified as the co-defendant, came out carrying a suitcase. The co-defendant was arrested, and was placed in a police car. Special Agent Richard H. Grabham of the F.B.I. had also been at the Bank shortly after the robbery and obtained a description from the witnesses. He received a car radio call that the automobile believed to have been involved in the robbery had been found at the Motel. When he arrived shortly after 2:00 P.M. he found other F.B.I. agents already there.

Special Agent Dennis L. Ploeger of the F.B.I. had also been at the scene of the robbery and had arrived at the Motel about 1:30 P.M. with Agent Randy Waldrop, prior to the arrest of the co-defendant, and prior to the arrival of Special Agent Grabham. He checked the automobile, saw the two hats and the license plate and reaching into the open window removed the two hats from the car. He was one of the agents who searched Room 205 later and was one of those searching the other rooms of the Motel for the second man. Special Agent Richard J. Darragh, Jr., arrived at the Motel after Agents Ploeger and Waldrop just as the co-defendant was being brought out.

After a discussion with Lt. Pearsey, Agent Grabham assumed custody of the co-defendant. Both F.B.I. agents and Indianapolis Police officers searched various rooms seeking the second man. Special Agent Tommy E. Cauthen of the F.B.I. who arrived at the scene shortly after 2:00 P.M. searched several rooms and about 2:25 P.M. found the appellant in the closet of Room 218 with a blue travel bag between his legs. Agent Grabham designated some of his agents to search Room 205. Sgt. Price and Lt. ...

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