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United States v. Brown

decided: August 28, 1980.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CYNTHIA BROWN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 CR 730 -- Nicholas J. Bua, Judge .

Before Swygert, Bauer and Cudahy, Circuit Judges.

Author: Bauer

On January 19, 1979, defendant-appellant Cynthia Brown and two co-defendants, Joyce Stokes and Maurice Townsend, were named in a one count indictment charging them with the unlawful possession of thirty-five checks stolen from the United States mails in violation of Title 18, United States Code, Section 1708. Appellant filed a motion to suppress certain evidence on the ground that it was tainted by her alleged unlawful arrest. Following the submission of memoranda and a plenary hearing, the motion was denied by the district court.

Subsequent to the denial of the motion, the appellant waived her right to trial by jury and entered into a written stipulation with the government as to the facts to be adduced at trial, and offered no evidence in her defense. On April 25, 1979, based upon the stipulated evidence, the appellant was found guilty as charged in the indictment. On May 23, 1979, Brown was sentenced to a period of five years' probation. The sole issue on appeal is whether the trial court erred in denying the appellant's motion to suppress. We conclude that the district court properly denied the motion and accordingly affirm the judgment of conviction appealed from for the reasons set forth below.

I

The facts material to the disposition of this appeal are not in dispute. On October 26, 1978, Detective Paul Polk of the Park Ridge Police Department was on duty at the First National State Bank of Park Ridge, Illinois to investigate previously reported instances of forged checks being negotiated at the bank's drive-in facility. At approximately 3:30 p.m., Detective Polk observed co-defendant Stokes attempt to cash a check at the drive-in window. Stokes was informed by the teller that the amount of the check presented for payment was too large for negotiation at the window and that Stokes would be required to cash the check in the bank lobby, which was at that time closed for business.

Stokes departed the drive-in facility area and Detective Polk followed in his unmarked police vehicle. At the intersection in front of the bank, Polk observed the appellant and co-defendant Townsend enter Stokes' automobile. As the Stokes vehicle turned a corner, Polk noticed that it did not bear a rear license plate. He then activated his emergency signal and curbed the Stokes automobile several blocks from the bank. At Polk's request Stokes produced her Illinois driver's license which listed a residence address in Park Forest, a suburb located a considerable distance from Park Ridge. Upon inquiry, Stokes claimed that her rear license plate had been stolen together with her car keys. She also claimed that she had attempted to cash a $100 bill at the bank, rather than a check. Polk issued a citation to Stokes for operating an improperly licensed vehicle.

Detective Polk then checked the license plate number with the police department over his radio and verified that the vehicle was registered to Stokes at the address indicated on the driver's license. He also confirmed that the transaction at the bank involved an attempt to cash a check with a mortgage book. Polk then asked Stokes to produce her mortgage book. Stokes responded by again asserting that she had only attempted to cash a $100 bill. Polk asked Stokes to exit her automobile and he conducted a brief search of the area in which she had been seated, as well as the front passenger area where Brown had been seated and the back seat area where Townsend had been seated. Polk searched the appellant's purse and conducted a frisk search of co-defendant Townsend. Polk asked the appellant for identification, which she produced.

Two marked squad cars arrived at the scene. Polk dispatched one officer to the bank to locate the teller involved in the transaction and to notify the bank's security personnel. The other police vehicle, driven by Officer Schiarra, remained on the scene. Polk then directed Stokes to follow his car back to the bank. The Stokes automobile was followed by Officer Schiarra in his squad car. Detective Polk testified that the appellant and her co-defendants were not under arrest, but were not free to leave.

Upon arriving at the bank, the teller identified Stokes as the woman involved in the transaction. Officer Schiarra informed Polk that he had seen Stokes and the appellant pass an object to Townsend in the back seat and that Townsend had hidden the object behind him. Polk then searched the rear seat area by reaching between the cushions and found a mortgage book and check belonging to a Mr. DiPietro. Polk showed the book and check to the teller, who identified them as having been earlier presented to her by Stokes. An assistant vice-president of the bank stated that he knew Mr. DiPietro and that none of the defendants were related to DiPietro.

The defendants were directed to reenter the Stokes automobile and to follow Polk to the police station. In the police station parking lot, Polk again searched the automobile and, upon removing the rear seat, found additional checks. Polk asked Stokes for the key to the trunk and she again claimed that it had been lost. The defendants were taken into the police station and placed in a holding area. Townsend was seated on a bench for five to ten minutes after his arrival at the station. When Townsend left the bench, Polk noticed a General Motors automobile key on the bench. The key fit the trunk lock of Stokes' car and upon searching the trunk, Polk recovered additional checks. The defendants were held overnight at the Park Ridge Police Station, and were released to federal authorities the next morning.

Two of the pieces of mail and two blank checks found in the trunk of Stokes' automobile bore the fingerprints of the appellant at the time of recovery. On October 27, 1978, Brown gave a statement to Postal Inspectors in which she admitted having participated in the scheme outlined above, as well as having knowledge of previous dealings by Stokes and Townsend involving the negotiation of stolen checks.

At the hearing on the appellant's motion to suppress her statement and fingerprint samples, the district court found that the initial stop of Stokes' car was proper and that the return of the three subjects to the bank was on arrest. The district court further held that as to co-defendant Stokes, the arrest was based on probable cause, but probable cause to arrest the appellant and co-defendant Townsend was at that point lacking. The court found however, that the officer's observation of the passing of an object by Stokes and Brown to Townsend, who attempted to conceal it, coupled with the recovery of the stolen mortgage book, gave rise to probable cause to arrest the appellant and co-defendant Townsend. Accordingly, the court held that because probable cause to arrest the appellant had been ...


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