United States v. William Lloyd Bailey

KILKENNY, Circuit Judge

(dissenting):

If either of the searches was valid, the judgment should be affirmed on the theory that the error complained of did not, beyond a reasonable doubt, contribute to the conviction. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969). Both searches, in my opinion, were valid and should be upheld.

*413 THE AUTOMOBILE SEARCH

The affidavit makes it crystal clear that appellant was the bank robber or at least one of the participants in the robbery. It identifies the checks and currency which were stolen from the bank, the clothing worn by the robbers and the pistol used at the time of the robbery. The affidavit clearly establishes that the bank robber was “apprehended” 1 in a 1970 Pontiac vehicle and that the af-fiant had reason to believe that the vehicle might contain the fruits of the robbery and the personal property above mentioned. From the foregoing, the Magistrate could reasonably infer: (1) that the bank robber would be in possession of some of the fruits of the robbery; (2) that he would have some of the fruits with him in the automobile; (3) that the robber either before or during the apprehension would conceal some of the fruits in the automobile; and (4) that probable cause existed for the issuance of the search warrant.

The fact that the apprehension occurred some one hundred miles from the scene of the robbery and over one month later is beside the point. In these circumstances, reason still dictates that the robber would probably have some of the fruits either on his person or in the vehicle he then occupied. The affidavit makes it clear that the fruits of the robbery were still missing. Where would be a better place to look than in the area in which the robber is apprehended?

We have recently said that in determining the sufficiency of a search warrant, the Magistrate must look to the nexus between the items which are the subject of the search, the place to be searched and the type of crime committed. The nature of the items and the extent of the suspect’s opportunity for concealment, normal inferences as to where a criminal would be likely to hide the stolen property, and related matters must be considered in determining whether or not the search warrant is sufficient. United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).

The only real difference, if any, between the facts outlined in the instant affidavit and those before the court in Porter v. United States, 335 F.2d 602 (9th Cir. 1964), is that in Porter the affidavit alleged that he was the owner of the automobile. Here, the affidavit charges that appellant was apprehended in the automobile. To me this is a distinction without a significant difference. Since it does not appear in the affidavit, we must assume that the Magistrate did not know that the robber was the driver. However, he did know that the robber was found in the confined space of the inside of an automobile and from the facts before him could draw the inferences previously mentioned whether the robber was the driver or not.

From all of the facts and circumstances before him, the Magistrate could logically deduce that the bank robber probably had some of the checks and money with him at the time of the arrest and, no doubt, would strongly suspect that if the robber had such contraband with him, he would hurriedly conceal it some place in the vehicle in which he was apprehended.

Aside from the validity of the search warrant, I believe the search can be upheld on the theory that the searching officers had probable cause to make the search without a warrant. The searching officers knew that the robber was the driver of the automobile and that certain paper documents were in the console. These were facts known to the officers which were not specifically mentioned in the affidavit. The overall rationale, if not the decision, of Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970), supports this view. White v. United States, 448 F.2d 250, 254 (8th Cir. 1971), is directly in point, I quote from the opinion:

“While the defendant has attacked the validity of the search warrant in this case, we do not find it necessary to pass on this question, because we believe that the search can be justi *414 fied as a warrantless search based upon probable cause under the principles of Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970).”

I would approve the search of the automobile.

THE HOME SEARCH

The affidavit supporting the issuance of the warrant for the search of the home reveals that appellant’s female co-conspirator in the bank robbery, the lady who used the large brown manila envelope to carry the money obtained in the robbery, was arrested at 2256 E. Prince Road, Tucson, Arizona. The affidavit reveals that the home had been under surveillance for some time .and that appellant was observed in the premises on April 23, 1971, and at other subsequent times prior to the arrest. The affidavit clearly sets forth the joint activities of appellant and the female co-conspirator immediately prior to and at the time of the robbery. From the facts stated in the affidavit, the Magistrate could reasonably infer: (1) that appellant or his co-conspirator, or both, were occupying the premises; (2) that as occupants, they might well have concealed on the premises a portion of the fruits of the robbery or the clothing which they wore at the time; and (3) probable cause existed for the issuance of the warrant. The logic employed by our court in Lucarz, supra, is here of particular significance. I quote from the opinion:

“The affidavit demonstrated the theft of the sort of materials that one would expect to be hidden at appellant’s place of residence, both because of their value and bulk.” 430 F.2d at 1055 .

The affidavit should be interpreted in a common sense and realistic manner, United States v. Ventresca, 380 U.S. 102, 108-109 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), and the warrant should issue when a man of reasonable caution would be of the belief that the items to be seized were in a particular location. Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949).

I would affirm the judgment of the lower court.

. In fact, he was the driver.