Duffy, Senior Circuit Judge, Pell, Circuit Judge and Durfee*fn* , Senior Associate Judge. Pell, Circuit Judge (dissenting).
DUFFY, Senior Circuit Judge.
This appeal follows a conviction of the defendant for violation of the federal firearms laws.*fn1 Defendant Wilson was sentenced for a term of three years' imprisonment.
The principal issue before us is whether the sawed-off shotgun which was the basis for the indictment and which was found by police officers during a search for which a warrant had been procured, was tainted by previous police action and conduct which uncovered evidence forming the probable cause basis for the issuance of the search warrant.
Defendant contests the constitutionality of police tactics and conduct during his initial encounter with police with respect to an American Express Credit Card which was extracted from his person by one Trooper Williams.
On January 21, 1971, defendant Wilson was driving an automobile on Interstate Highway 57, south of Salem, Illinois, at approximately ten o'clock in the morning. Defendant was stopped by Illinois State Trooper Williams at a location on the highway where two other occupied police cars were positioned. Trooper Williams testified at the trial that the sole basis for this detention of defendant was a radio bulletin which he had heard previously over his radio which stated that a "colored male, had in his possession an American Express credit card which was stolen" and was driving a red 1970 Ford Torino with a certain license plate number.
The government concedes the fact that defendant had not violated any traffic laws, or at this precise time was there any other known reason for his detention except for the aforementioned information received by means of the radio bulletin.
Upon being stopped by the police, defendant Wilson opened his car door and left his automobile. He met the officers about mid-way between the assembled automobiles.
At the request of Trooper Williams, defendant produced a driver's license which had been issued in the name of William Kotinas. Without further colloquy, Officer Williams commenced a complete search of the person of defendant Wilson.
After a "pat-down" by Officer Williams, he reached into defendant's pocket and removed an American Express Credit Card which was later used as a probable cause basis in securing a search warrant for the automobile which defendant was driving. Defendant was then told by one of the officers to follow the police car in his own vehicle to the Salem County jail, which he did.
At the trial, Officer Williams did testify that his search of defendant was for his (Williams') own protection. However, the "pat-down" had not revealed a potential weapon in any of Wilson's pockets. There was nothing in the radio bulletin to indicate the suspect was dangerous. Furthermore, the apprehension occurred at ten o'clock in the morning with three police officers and squad cars present.
The first radio message received by Trooper Williams was based upon a telephone statement to police authorities by one Mayhaus who was the assistant manager of a truck stop on the highway where defendant purchased gasoline and attempted to purchase other articles with an American Express credit card.
A clerk at the gasoline station informed defendant that when purchases made by use of the card exceeded $25, the card must be verified with the American Express Division of Texaco. Defendant then talked on the telephone with Texaco but after a short conversation, the defendant hung up the phone and left the station without making any additional purchases.
Mayhaus testified that when he called the American Express Division of Texaco to inquire about the validity of the credit card, he talked to some unidentified and unknown person who informed him that the card had been stolen. Mayhaus then contacted the police giving them this information which formed the basis of the radio bulletin.
After arrival at the Salem County jail, the investigating officers received another radio communication to the effect that the driver's license presented by the defendant had been taken from a University of Illinois policeman in an armed robbery. Defendant was incarcerated after this second radio message had been received by the officers.
Only after the defendant had driven his car to the County jail accompanied by the officers in their squad cars and after the second radio communication had been received by the officers, was the defendant given his Miranda warnings and jailed.
Following Wilson's incarceration, Trooper Weems signed a Complaint for a search warrant for the search of the motor vehicle Wilson was driving. The Complaint indicated that the officers were "looking for other credit cards, papers, which may be stolen belonging to William Kotinas of Chicago, Illinois". The certificate of probable cause was signed by a magistrate. The officers then searched the defendant's vehicle and found the shotgun in a duffle bag in the rear of the automobile.
A motion to suppress evidence with respect to the shotgun was denied by the District Court prior to trial as were other defense motions for post-conviction relief.
Upon appeal, the government argues that the arrest was made by the state troopers at the occurrence of Wilson's ...