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United States v. Pavelski

April 21, 1986


Consolidated Appeals from the United States District Court for the Eastern District of Wisconsin. No. 84-CR-132--Terence T. Evans, Judge. No. 85-CR-18--Robert W. Warren, Judge.

Author: Grant

Before BAUER and WOOD, Circuit Judges, and GRANT, Senior District Judge.*fn*

GRANT, Senior District Judge.

This Appeal arises from convictions for two bank robberies. In the first, No. 84-CR-132, a jury found defendants-appellants guilty of the December 27, 1983 armed robbery of the Cudahy Marine Bank in Cudahy, Wisconsin, in violation of 18 U.S.C. §§ 2, 2113(a) and 2113(d). A fourth robber, Gray, pled guilty and testified against the appellants. The trial court sentenced defendants-appellants, Pavelski and Michael Rudolph, to twenty-five years' imprisonment and defendant-appellant, John Rudolph, to eight years' imprisonment. The trial court ordered each of make restitution in the amount of $27,995.

In No. 85-CR-18, a jury convicted Pavelski of the November 23, 1983 armed robbery in the First State Savings and Loan in New Berlin, Wisconsin, in violation of 18 U.S.C. §§ 2, 2113(a) and 2113(d), and Thomas Rudolph of simple bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a). The trial court sentenced Pavelski to twenty-five years' imprisonment, and Thomas Rudolph to twenty years' imprisonment, both sentences to run consecutively to the appellants' previous sentences. The trial court ordered each to make restitution in the amount of $3,000.

Before each trial, the appellants moved to suppress evidence taken from them prior to their arrests. Both trial judges denied these motions, and appellants challenge the denials. John Rudolph also challenges the trial judge's denial of his motion for severance. We affirm the convictions.


The primary question in these appeals involves the evidence taken from the appellants when they were apprehenced in Portland, Oregon. The significant events leading to the appellants' capture follow.

On November 23, 1983, Pavelski, Thomas Rudolph and Gray, a co-defendant who testified pursuant to a grant of immunity for the instant armed robberies as well as two others, held up the First State Savings and Loan in New Berlin, Wisconsin. On December 27, 1983, those three, plus John Rudolph, held up the Cudahy Marine Bank in Cudahy, Wisconsin. The four fled and began a ten-month cross-country odyssey which took them to Illinois, Louisiana, Texas, Florida, Washington, D.C., back to Illinois, on to Arizona, Nevada, Montana, back to Nevada where they disposed of the weapons used in the Wisconsin armed robberies, on to California, Colorado, Nebraska,*fn1 South Dakota, North Dakota, back to Nevada, back to California and finally on to Oregon. The appellants and Gray spent most of the more than $80,000 that they had stolen from the Wisconsin banks.

At approximately 8:55 A.M. on October 6, 1984, the four were driving a car with Colorado license plates in Portland, Oregon. They made an abrupt right-hand turn which Deputy Sheriff Fitz of the Multonomah County, Oregon Sheriff's Department observed. The abrupt turn, the out-of-state plates and the four men in the car drew Deputy Fitz's attention. Deputy Fitz, an officer with fifteen years' experience, followed them in his patrol car. After noting that they were driving slower than the posted speed limit, the deputy discontinued his pursuit.

Deputy Fitz saw the car again in another location at approximately 10:28 A.M. He maneuvered his patrol car past the appellants' car in an effort to gain eye contact with one of them. None looked in his direction. Concluding that the lack of eye contact was unusual, Deputy Fitz turned around and began to follow the car. Deputy Fitz radioed for back-up help and began looking for a reason to stop the car. Before he found his reason, the appellants and Gray, of their own accord, pulled into a parking lot. Deputy Fitz stopped his patrol car behind them, and another uniformed Deputy Sheriff pulled his patrol car along the right of them. Deputy Fitz had no suspicion that they had violated any laws.

Pavelski exited the driver's seat and walked to the front bumper of the car. Deputy Fitz approached Pavelski and asked where they had been. Pavelski answered that they had become lost while looking for a house in the Troutdale area where a girl named Donna lived. Pavelski explained that he was from Colorado and produced a Colorado driver's license bearing the name of Michael Scruggs. The deputy asked Pavelski how long he had been in Portland and Pavelski answered that he had been there two or three weeks. By this time, a police officer from Fairview, a neighboring community, had joined the two sheriffs. The Fairview officer parked his patrol car twenty to thirty feet in front of the appellants' car.

Seeking corroboration for Pavelski's story, Deputy Fitz stepped back to the left rear passenger door and tapped upon the window. Thomas Rudolph lowered the window and, after being asked, responded that they had been in Portland for two or three days. As Deputy Fitz questioned Thomas Randolph, he noticed that Gray, who was sitting on the other side of the rear seat, was becoming extremely nervous and was perspiring visibly despite the cool temperature. These circumstances caused Deputy Fitz to become concerned about his personal safety.

Deputy Fitz asked the passengers for identification. They told the deputy that their identification had been stolen the previous day. Gray indicated that he might have some identification in his suitcase in the trunk. Because of his concern for his safety and the safety of the other officers, Deputy Fitz accompanied Gray to the rear of the car and carefully watched him rummage through his bag. Gray found no identification and Deputy Fitz saw nothing unusual. Gray ...

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