Swygert, Chief Judge, and Kiley and Fairchild, Circuit Judges.
Appellants Castaldi, McBride and Cook appealed separately from their convictions by a jury of conspiracy to enter a federally insured savings and loan association building with intent to commit a felony, 18 U.S.C. § 371, and substantive offenses of burglary of the building, 18 U.S.C. § 2113(a). We affirm the convictions.
In the early morning of June 11, 1969, Carbondale, Illinois police were notified of a burglary being committed at the Carbondale Savings and Loan Association (S-L). As the police approached the building about 3:00 a. m., they heard someone shout "Cops," and observed two men running from the building, one of whom was wearing an unusually bright blue shirt. The men eluded the police, one running straight ahead and the other turning a corner of the building in the direction of nearby shrubbery. The policemen proceeded to the building and found it had been broken into. They found a ladder against the building at an open window, and entered and found a two foot hole had been pounded through a concrete wall leading to the vault. They also found appellant Castaldi hiding in the building. Police arrested and searched him and found a Missouri driver's license. Immediately after Castaldi was arrested, police searched the outside area and noticed, about a block away, a 1965 Cadillac bearing a Missouri license. It was the only car on the street, was parked three feet from the curb, was unlocked, its radiator was warm, a key was in the ignition, and fresh handprints were in the dust on the trunk. The police called and ordered the Cadillac towed to, and impounded at, a nearby service station.
Appellant McBride was soon found and arrested. He was hiding in shrubbery two doors from the S-L building. And while driving McBride to the Murphysboro jail seven miles away at 5:00 a. m., one of the officers, who had observed the men running from the building earlier, saw a man wearing a very bright blue shirt with a build identical to the blue-shirted man seen earlier. The man fled. Other officers were alerted and soon arrested the man, who turned out to be appellant Cook.
At about 5:25 a. m. an Illinois state investigative agent, accompanied by two policemen, went to the service station where the Cadillac was impounded. The investigator searched outside and inside for fingerprints. Thereafter, the policemen searched inside the car and found a switch in the glove compartment which opened the trunk. Neither the investigator nor the police had a search warrant. In the trunk the police found torches, acetylene gas, wire cutters, a ladies' nylon stocking, two-way radios and a ski mask.
We see no merit in the contention that the district court erred in failing to grant appellants' motion for acquittal on the ground that the government failed to prove unlawful intent.*fn1 The jury could very well infer that the building was entered with intent to commit a felony from the following facts: a ladder was found positioned against the S-L building, a window had been jimmied and the front door damaged, a hole had been pounded in the concrete wall around the vault, Castaldi was found hiding in the building, and the Cadillac was discovered suspiciously parked and disposed nearby.
The court's ruling that prima facie unlawful intent had been shown was not erroneous. This proof shows much more than suspicion and therefore distinguishes Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504 (1966). And the government was not required to show that there was money in the vault in order to prove defendants entered the building with intent to steal. Pinkney v. United States, 380 F.2d 882 (5th Cir. 1967).
A pre-trial motion was made by McBride and Cook to suppress the incriminating material seized in the 5:25 a. m. search on the ground that the search was unlawful in violation of their Fourth Amendment rights.*fn2 After a hearing and briefing the court denied the motion. The evidence was admitted at the trial.
The question is whether the 5:25 a. m. search of the Cadillac was illegal as violative of the Fourth Amendment, and admission of the fruits of the search unconstitutional error.
We think the police at 3:00 a. m. had probable cause under the circumstances to seize and impound the Cadillac. They had been notified of the burglary in progress, observed the men running from the building, found the building had been forceably entered, found inside a two foot hole pounded through a concrete wall leading to the S-L vault, and found Castaldi hiding in the building, wearing a black sweat shirt and pants, workmen's boots and black gloves, and in his possession a Missouri driver's license. About a block away from the building, police found the unlocked Cadillac bearing a Missouri license -- the only car on the Carbondale street, and situated in suspicious circumstances. We think also that the police judgment that the Cadillac was related to what they had discovered in the building was justified. Their order to have the Cadillac towed to the service station and impounded was in our view prudent police conduct, especially with Castaldi's two confederates, previously seen running from the building, at large. See Chambers v. Maroney, 399 U.S. 42, 52 n. 10, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).
The general rule is that all warrantless searches, even if based on probable cause, are "per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). Here we think the government has met its burden of showing that the search in question falls within ...