Petition — Flowers v. United States

In Tue

Supreme Court of the Anited States

Octoser Term, 1976

No. @6"1785

CALVIN EUGENE FLOWERS, JOHN C.

GREICHUNOS, and ROBERT D. HARDIN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RICHARD F. JAMES

215 Joliet Street

Dyer, Indiana 46311

(219) 865-8376

Counsel for John Greichunos

ARTHUR J. O'DONNELL

55 East Monroe Street

Chicago, Illinois 60603

(312) 263-5747

Counsel for Calvin Flowers

and Robert D. Hardin

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

cr act ne

TABLE OF CONTENTS

PAGE

REFERENCE TO REPORTS OF OPINIONS .......... 2

I i 2

QUESTION PRESENTED FOR REVIEW ................. 3

CONSTITUTIONAL PROVISION PRESENTED ... 3

aE CI cor reiescetssinsuabaitniasntpisicetinntn 3

ge RES EI a ee eee eC ee 3

STAWEMENT OF THE CASE oouicceccccccccccccccssessceceosese +

REASON FOR GRANTING THE WRIT . 0... 6

Whether the Fourth Amendment prohibits the rov-

ing patrol stop and detention of a vehicle and its

occupants based on suspicion growing out of gen-

eral information of thefts in the area ...................... 6

SIRES SSE Tee oes eS Pen 11

APPENDICES:

“A”—Unpublished Order of the United States Court

of Appeals for the Seventh Circuit and dissent

of Senior District Judge William J. Campbell la

“B”—Order Denying Petition for Rehearing and

Suggestions for Rehearing En Banc and dis-

senting statement of Judge Luther M. Swy-

I “clinnesievassinntineneimmmmsnguitnminsennannsees Sueeneninsigeeiidnineanatieie 12a

AUTHORITIES CITED

Adams v. Williams, 407 U.S. 143 222.2... eeeceeeeeeoeees 6, 7,9

Aguilar v. Texas, 378 U.S. 108 (1964) ........................... if)

Beck v. Ohio, 379 U.S. 89 (1964) 20.222... eeeceecceecneeneennee 8

Brinegar v. United States, 338 U.S. 160, 183, 69 -_

Ct. 1302, 1314, 93 L. Ed. 879 (1949) . 8

Davis v. Mississippi, 394 U.S. 721 (1969) -..02. 7

Henry v. United States, 361 U.S. 98 (1959) —.... 7

Spinelli v. United States, 393 U.S. 410 (1969) —............ 9

‘Ae 8S | Oe 6, 7, 8,9

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) .. 10

United States v. Carrioza-Gaxiola, 523 F. 2d 239 (9th

CER. TOFD) annnnacesrsntsncsnossnsiciscstnsinisieataietedia 8

United States v. Martinez-Fuerte, 44 LW 5336, 5341 .. 6,10

a

In Tue

Supreme Court of the United States

Ocroser Term, 1976

No.

CALVIN EUGENE FLOWERS, JOHN C.

GREICHUNOS, and ROBERT D. HARDIN,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Calvin Eugene Flowers, John C.

Greichunos, and Robert D. Hardin pray that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit affirm-

ing their convictions in the United States District Court

for the Northern District of Indiana, South Bend Divi-

sion, for violation of 18 U.S.C. Sec. 659, theft from in-

terstate shipment.

ailin

REFERENCE TO REPORTS OF OPINIONS

United States v. Calvin Eugene Flowers, John C.

Greichunos, and Robert Douglas Hardin, Gen. No. 76-

1259, 76-1260, 76-1261, unpublished Order per Circuit

Rule 35 dated February 24, 1977 is attached as Appen-

dix “A”.

JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh Circuit was entered on February 24,

1977 affirming the conviction, Senior District Judge

William J. Campbell of the Northern District of Illinois,

sitting by designation, dissented. A timely petition for

rehearing and suggestion for rehearing en banc was

filed and denied on May 16, 1977. Judge Luther M.

Swygert voted to grant a rehearing en banc. The Order

of May 16th and Judge Swygert’s statement is attached

as Appendix “B”.

etiiiien

QUESTION PRESENTED FOR REVIEW

Whether the Fourth Amendment prohibits the roving

patrol stop and detention of a vehicle and its occupants

based on suspicion growing out of general information of

thefts in the area?

CONSTITUTIONAL PROVISIONS PRESENTED

Se

The Fourth Amendment to the Constitution of the

United States.

STATUTES INVOLVED

18 U.S.C., Sec. 659.

RULE

Rule 41—Federal Rules of Criminal Procedure.

_

STATEMENT OF THE CASE

Motion To Suppress Evidence

At 11:30 p.m. (E.S.T.) on January 23, 1975, Indiana

State Trooper Richard Stalbrink stopped a pickup truck

being driven by defendant Flowers and travelling north

on U.S. Highway 421 about four and one-half miles

north of LaCrosse, Indiana. Hardin and Greichunos

were passengers in the truck which was fully loaded

with cartons of air conditioners stacked above the sides

and tailgate of the truck. U.S. Highway 421 is a truck

route. Stalbrink stopped the pickup truck because he

had general information regarding the theft of television

sets from railroad cars in the area of Wilders, Indiana, a

community four miles south of LaCrosse, during a three

month period prior to the stopping and that a pickup

truck had been seen in the area either before or after

the thefts. The officer did not have knowledge of any

specific crime having been committed, and the reason

for stopping the vehicle was because it looked suspicious.

He further testified, “that a pickup truck with boxes is

not particularly suspicious; however, since we had

several thefts of color t.v. sets, when I first saw this

truck at that time of the night—no other traffic

around—at my first glance I thought these might be t.v.

sets, and they looked like brand new cartons.”

Stalbrink asked the driver for his driver’s license and

vehicle registration. The driver produced the latter but

told Stalbrink he did not have his license with him. The

driver accompanied the Trooper to the squad, and a

radio check was mace on his driver’s license. While they

were waiting for the report on the driver’s license,

Flowers told Stalbrink that the cartons in the truck con-

tained air conditioners that he had bought for $125 each

—~§—

from a Medaryville, Indiana. truck driver named John

Simpson and indicated the eneral location of Simpson’s

pole barn where he purchased them. The driver told

Stalbrink that he and his companions were taking the

air conditioners to Lake County, Indiana, for resale.

After the license check showed that the driver had a

valid license, Stalbrink asked the other two occupants of

the pickup truck to join him and the driver in the squad

car where each gave similar identifying information.

Following a brief conversation, the Trooper got out of

his car, went to the back of the truck and took serial and

model numbers from the cartons, and radioed this infor-

mation to the National Crime Information Center to

determine whether any of the property had been recent-

ly reported stolen. A few minutes later, the Trooper was

notified that the serial numbers and model numbers of

the items submitted had not been reported stolen. The

truck and its occupants were permitted to leave. In all,

fifteen to twenty minutes had elapsed from the time of

the stopping of the pickup truck and the departure of

the defendants. The pickup truck was an open bed vehi-

cle, the cartons were not covered, and were clearly iden-

tified as air conditioners on the exterior of the cartons.

The Government concedes that the search was made

without a warrant and was not incidental to an arrest.

The information obtained from the truck and the oc-

cupants by Stalbrink was turned over to detectives of

the Indiana State Police who commenced an investiga-

tion as to the possible theft of air conditioners from in-

terstate shipment. On January 3lst, a quantity of air

conditioners was reported missing from a shipment con-

tained in a C & O boxcar at Clearfield, Utah. Subsequent

investigation revealed that this car had been in the

LaCrosse, Indiana, yard of the C & O Railroad on

January 23, 1975. Based upon the information obtained

—$—

from Officer Stalbrink, the petitioners herein were

arrested in June and charged with the theft from in-

terstate shipment. The trial court denied the Motion to

Suppress Evidence, and following a trial by jury,

petitioners were convicted and petitioner Calvin F°owers

was sentenced to a term of three years, pursuant io 18

U.S.C. 4208(aX2), Robert D. Hardin to a term of two

years, pursuant to 18 U.S.C. 4208(aX2), and John G.

Greichunos to a term of one year. The United States

Court of Appeals for the Seventh Circuit affirmed, one

judge dissenting.

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS AN IMPORTANT QUES-

TION RELATING TO THE VALIDITY OF IN-

VESTIGATORY STOPS AND ARRESTS, AND THE

CONSTITUTIONAL LIMITATIONS ON THE DOC-

TRINE OF FOUNDED SUSPICION WHERE THERE IS

NO QUANTUM OF INDIVIDUALIZED SUSPICION TO

WARRANT THE INITIAL INTRUSION AND SUBSE-

QUENT DETENTION, AND IS IN CONFLICT WITH

PRIOR HOLDINGS OF THIS COURT.

Despite the fact that the government conceded that

the search was made without a warrant and not inciden-

tal to an arrest, and the majority of the Court below did

not contend that the officer had probable cause to stop

and detain the vehicle and its occupants, the majority of

the panel nevertheless concluded that reasonable suspi-

cion existed, “to stop this particular truck, loaded with

similar cartons, at 11:30 p.m. and interrogate the driver

and passengers,” citing Terry v. Ohio, 392 U.S. 1,

Adams v. Williams, 407 U.S. 143, and United States v.

Martinez-Fuerte, 44 LW 5336, 5341.

—S2a[c_—_

— =

The factual circumstances which support the holding

in Terry, reveal a chronicle of individualized suspicious

activity being observed by a police officer with thirty-

five years of experience who saw two of the three

suspects in that case walk back and forth in front of a

store in broad daylight no less than twelve times, peer

into the store a total of twenty-four times and then

return to the corner and have what appeared to be a

conversation and were then joined by a third man. The

individualized suspicious activity of the defendants in

Terry was observed by the officer for a period of 10 or

12 minutes prior to the confrontation a short distance

away.

As pointed out by the dissent in the instant case,

“Whatever Terry and Adams hold with respect to the

right of a police officer to approach a person for pur-

poses of investigating possible criminal behavior and to

conduct a limited protective search for concealed

weapons, those cases have no applicability to the facts in

this case.” This Court in Terry emphatically rejected the

notion that investigatory stops and their attendant frisks

are outside the purview of the Fourth Amendment

because they fail to rise to the level of search and

seizure within the meaning of our Constitution.

“Whenever a police officer accosts an individual and

restrains his freedom to walk away, he has seized that

nerson.” Henry v. United States, 361 U.S. 98 (1959);

i v. Mississippi, 394 U.S. 721 (1969).

2 Cov’: in Terry warned of the danger implicit in

the logic which proceeds upon the distinctions between

investigatory stops and arrests, or seizure of the person

and a frisk, by pointing out that it seeks to isolate from

constitutional scrutiny the initial stages of the contact

between the policeman and the citizen. It went on to

conclude that the sounder course is to recognize that the

—§—

Fourth Amendment governs all intrusions by agents of

the public upon personal security and to make the scope .

of the particular intrusion, in light of all of the exigen-

cies of the case, a central element in the analysis of rea-

sonableness. Terry fn. 15, p. 1878 Cf. Brinegar v. United

States, 338 U.S. 160, 183, 69 Sup. Ct. 1302, 1314, 93 L.

Ed. 879 (1949), and other cases cited therein. As this

Court pointed out, “In justifying the particular intrusion

the police officer must be able to point to specific and

articulable facts which, taken together with rational in-

ferences from those facts, reasonably warrant that intru-

sion.” The demand for specificity in the information

upon which police action is predicated is the central

teaching of this Court’s Fourth Amendment jurisprud-

ence. Beck v. Ohio, 379 U.S. 89 (1964). Cf. fn. 18 Terry,

supra, p. 1880.

Officer Stalbrink of the Indiana State Police was on a

routine traffic patrol and was not investigating any

crime, he was travelling in a northerly direction and

observed a pickup truck driving along a truck route

carrying cartons headed in the same direction. The only

specific and articulable fact which he possessed was

general information that there had been several thefts of

television sets from interstate shipment involving the

use of a pickup truck over a period of three months

prior to the date in which he stopped the appellants a

distance of 8% miles away. The officer freely conceded

that he did not have any knowledge of any specific

crime and the sole reason for stopping the vehicle was

because it looked suspicious. There was absolutely

nothing that the police officer could point to, based

either upon his general knowledge of criminal activity,

or the conduct of this particular vehicle, from which he

could ratioually infer individualized suspicion to stop

this particular vehicle. As stated in United States v.

soln

Carrioza-Gaxiola, 523 F. 2d 239 (9th Cir. 1975), “Found-

ed suspicion requires some reasonable ground for sing]l-

ing out the person stopped—driving a Ford LTD is not

suspicious, nor is driving it toward Nogales.” 523 F. 2d

at 241.

It is difficult to conceive how conduct which was not

even unusual can be raised to the level of suspicion, let

alone reasonable suspicion. Officer Stalbrink testified

that there was nothing unusual about a pickup truck

loaded with cartons travelling on this highway, yet the

court concluded that this fact, coupled with the general

knowledge of thefts in the area, was sufficient to con-

stitute reasonable suspicion to stop this particular truck.

It therefore must fo'low that the majority holding would

condone the police officer stopping any panel truck

carrying cartons which was within that general area.

The decision’s reliance upon Adams v. Williams is

equally misplaced. In that case the officer was on patrol

duty in a high crime area of Bridgeport, Connecticut. At

approximately 2:15 a.m. an informant, known to the of-

ficer and who had previously provided him with infor-

mation in the past, approached his vehicle and informed

him that an individual seated in a nearby vehicle was

carrying narcotics and had a gun at his waist. In up-

holding the officer’s forcible stop of Williams, the court

stated that while the unverified tip from the informant

may have been insufficient for a narcotics arrest or a

search warrant, see e.g. Spinelli v. United States, 393

U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964),

“the information carried enough indicia of reliability to

justify the officer’s forcible stop of Williams for the pur-

pose of conducting a weapons search limited in scope to

his protective purposes.” Citing Terry v. Ohio. In inter-

preting the Terry decision, the court in Adams v.

Williams stated, “The purpose of this limited search is

=o

not to discover evidence of crime, but to allow the officer

to pursue his investigation without fear of violence, and

thus the frisk for weapons might be equally necessary

and reasonable.”

Martinez-Fuerte, relied upon by the Court below, is

similarly inapplicable to the facts in the instant case.

This Court upheld a routine stopping of a vehicle at a

permanent check point located on a major highway,

away from the Mexican border, for brief questioning of

the vehicle’s occupants, and further held such procedure

to be consistent with the Fourth Amendment in the

absence of any individualized suspicion that the par-

ticular vehicle contains illegal aliens. But the court ex-

pressly limited its holding to stops for brief questioning,

routinely conducted at permanent check points, and ex-

pressly excluded roving patrol stops and check point

searches, and further held that any further detention

must be based upon consent or probable cause. United

States v. Brignoni-Ponce, 422 U.S. 873 (1975).

The second reason why the Motion to Suppress should

have been granted is that even if the stop were based

upon reasonable suspicion, it was based on the officer’s

suspicion that the truck may have contained stolen

television sets. The cartons, uncovered and on an open

bed pickup truck, were clearly marked air conditioners.

The petitioners told the officer that the boxes contained

air conditioners. Therefore, when the officer exited the

squad car for the purpose of copying down the serial

numbers of the boxes, it could only be on suspicion that

the air conditioners were stolen. He had absolutely no

reason or suspicion to suspect that the air conditioners

were stolen. The theft of the air conditioners was not

discovered until a week later. Whatever quantum of

reasonable suspicion he may have had prior to the stop-

ping was immediately dissipated by the fact that it was

=|

obvious that this truck was not loaded with television

sets. As Judge Swygert pointed out in his statement in

support of a rehearing en banc, “His investigation of the

air conditioners thus constituted a ‘fishing expedition’

which is forbidden by the Fourth Amendment.” A

proper observance of our constitutional safeguards far

outweighs the fortuitous results of an illegal arrest and

the subsequent attendant search.

CONCLUSION

From the above and foregoing premise, petitioners

pray that your Honors will consider their complaints to

be of sufficient constitutional magnitude to warrant this

Court’s review on writ of certiorari.

Respectfully submitted,

RICHARD F. JAMES

215 Joliet Street

Dyer, Indiana 46311

(219) 865-8376

Counsel for John Greichunos

ARTHUR J. O'DONNELL

55 East Monroe Street

Chicego, Illinois 60603

(312) 263-5747

Counsel for Calvin Flowers

and Robert D. Hardin

=

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Nos. 76-1259 to 76-1261

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

CALVIN EUGENE FLOWERS, JOHN C. GREICHUNOS,

ROBERT D. HARDIN,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. S CR 75-44—Robert A. Grant, Judge.

HEARD NOVEMBER 2, 1976—DECIDED FEBRUARY 24, 1977

Before CUMMINGS and BAUER, Circuit Judges, and

CAMPBELL, Senior District Judge.*

* Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

—

ORDER

In June 1975, the three defendants were indicted for

their January 23, 1975, Indiana theft of ?3 Whirlpool air

conditioners being shipped interstate aboard the Chesa-

peake & Ohio Railroad, in violation of 18 U.S.C. § 659.

Their motion to suppress evidence was denied on August

7, 1975, and a mistrial was declared during the jury

selection because the jury did not represent a random

draw of prospective jurors since half of them had sat as

jurors the previous week. After a two-day trial com-

mencing on December 2, 1975, a jury found them guilty,

and Flowers received a 3-year sentence, Hardin a two-

year sentence, and Greichunos a one-year sentence. All

three appealed. We affirm.

Denial of Motion to Suppress

At 11:30 p.m. (EST) on January 23, 1975, Indiana

State Trooper Richard Stalbrink stopped a pickup truck

being driven by defendant Flowers and traveling north

on U.S. Highway 421 about four and one-half miles

north of LaCrosse, Indiana. Hardin and Greichunos

were passengers in the truck which was fully iwade

with cartons of air conditioners stacked above t* sia °

and tailgate of the truck. No other traiic wa,

present.

Stalbrink stopped the pickup truck because he was

investigating a number of night-time television thefts

from a railroad yard in Wilders, Indiana, four miles

south of LaCrosse, and transported from that area in

pickup trucks. Flowers’ truck was only eight and a half

miles from Wilders, and the cartons in his truck

resembled cartons for television sets.

—3a—

Stalbrink asked Flowers for his driver’s license and

vehicle registration. Flowers produced the latter but

told Stalbrink he did not have his license with him.

Flowers then accompanied the Trooper to his squad car,

and a radio check was made of his driver’s license.

While they were waiting for the report on the driver’s

license, Flowers told Stalbrink that the cartons in the

truck contained air conditioners that he had bought for

- $125 each from a Medaryville, Indiana, truck driver

named John Simpson and indicated in vague terms the

location of Simpson’s pole barn in Medaryville. Flowers

said he and his companions were taking the air

conditioners to Lake County, Indiana, for resale.

After the license check showed that Flowers had a

valid license, Stalbrink asked the other two defendants

to join him and Flowers in the squad car where each

gave similar indentifying information. As they were

talking in the squad car, Stalbrink asked Flowers if it

would be all right if he copied the numbers from one of

the cartons in the truck, and Flowers agreed. The

Trooper then recorded a serial and model number from

one of the cartons. His radio check advised that no theft

had been reported of such a carton, and defendants then

went on their way. In all, 15 to 20 minutes elapsed from

the time of the stopping of the pickup truck and the

departure of the defendants.

The Government concedes that the search was made

without a warrant and was not incidental to an arrest.

Because Stalbrink had been investigating thefts of color

TV sets carried away from a nearby railroad yard in

pickup trucks, he had reasonable suspicion to stop this

particuiar truck, loaded with similar cartons, at 11:30

p.m. and interrogate the driver and passengers in accord

with Terry v. Ohio, 392 U.S. 1, and Adams v. Williams,

—4a—

407 U.S. 143.! Cf. United States v. Martinez-Fuerte, 44

LW 5336, 5341. During the investigatory stop, which

lasted only while the defendants’ driver’s licenses and

vehicle registrations were being checked, Flowers con-

sented in the presence of the other defendants to the

Trooper’s checking the serial and model number on one

of the cartons. Before Flowers’ consent was given, it was

unnecessary to give the warnings prescribed in Miranda

v. Arizona, 384 U.S. 436, for no truly custodial

interrogation of defendants was being undertaken. Ore-

gon v. Mathiason, ..... USS. ....., 45 LW 3505; Beckwith v.

United States, 425 U.S. 341. Indeed defendants were left

alone in the squad car with its motor running while the

Trooper obtained the numbers on one of the cartons.

Defendants must have been aware of the purpose of

Stalbrink’s check of the boxes since he told them in the

car that the reason for his original suspicion was the

recent television thefts. Since no threat or coercion was

used by Stalbrink to obtain Flowers’ consent to this

ruinimal intrusion, the Fourth Amendment was not

violated. United States v. Watson, 423 U.S. 411; United

States v. Matlock, 415 U.S. 164; Schneckloth v. Busta-

monte, 412 U.S. 218. There is no need to consider the

alternative plain view argument of the Government, but

it may be noted that there could have been no genuine

expectation of privacy here, for the air-conditioner

cartons were clearly visible to anyone driving behind the

pickup truck. South Dakota v. Opperman, 44 LW 5294,

5295-5296. The motion to suppress was properly denied.

Sufficiency of the Evidence

Defendants also argue that the evidence was insuf-

ficient to support the jury’s guilty verdict. We cannot

agree.

' Because this was a reasonable investigatory step, we need

not determine whether, as in United States ex rel. Burbank v.

< ng 535 F.2d 361 (7th Cir. 1976), probable cause was

shown.

willitines:

When Trooper Stalbrink stopped defendants’ pickup

truck about 11:30 p.m. (EST) it was only four and one-

half miles from LaCrosse, Indiana. The boxcar from

which the Whirlpool air conditioners were taken was in

an unmanned railroad yard (two blocks from U.S.

Highway 421) at LaCrosse from 8:00 p.m. to 10:48 p.m.

(EST) that evening. The 23 air conditioners could be

unloaded by 3 men in 5-6 minutes without special tools.

Moreover, Hardin had an extensive knowledge of

boxears. The numbers which Stalbrink wrote down

from the air conditioner carton on the back of defen-

dants’ truck were identical to those on one of the missing

cartons. The explanation that defendants gave for

having a truckload of stolen air conditioners in their

possession was that they had bought them that eve-

ning—untested, boxed, and off the back of a truck—

from a “John Simpson” and resold them to him after

being stopped by Stalbrink. Simpson was never found

nor could he be located where Flowers said he lived.

Obviously the jury considered Simpson to be a fictitious

person and refused to credit the alibi. Even accepting

the time reference given by defense witnesses, it was

perfectly possible for them to have removed the air

conditioners from the Chesapeake & Ohio boxcar and

yet arrive where Stalbrink stopped them at 11:30 p.m.

(EST). There was ample evidence for the jury to

conclude that defendants had either stolen the air

conditioners or had aided and abetted in their theft,

making them culpable as principals under 18 U.S.C.

§ 2.

Denial of Defendants’ Motion for Mistrial

Defendants introduced the radio log record of the

Indiana State Police during their direct examination of

Stalbrink. To corroborate his testimony that the stopping

—§a—

occurred at 11:30 p.m. Eastern Standard Time (or 10:30

LaCrosse time), the prosecutor asked Stalbrink during

cross-examination to testify about other information on

the radio log of the Indiana State Police. The last item

that Stalbrink read from the radio log (Defendants’

Exhibit G) was as follows:

“Subject is single, 33, which is a state police code

for known burglar” (Tr. 186).

Defense counsel immediately objected and moved for a

mistrial, and the court thereupon struck the answer and

told the jury to disregard the comment and give it no

weight whatever and to erase it from their minds. The

comment was never mentioned thereafter during the

trial. However, during his direct examination by his

counsel, Flowers later admitted that he previously had

been convicted in 1972 in federal court of possession of a

stolen automobile.? Therefore, any prejudice that might

have resulted to Flowers from Stalbrink’s translation of

the Indiana Police code was vitiated by his own

testimony. A mistrial was not warranted.

Earlier Grant of Government’s Motion for Mistrial

After interrogating some prospective jurors during

the August 7 voir dire, the court asked counsel for the

parties to approach the bench. After fifteen peremptory

challenges had been exercised, it became apparent that

at least six of those in the jury box had been jurors in a

criminal trial the week before, so that there was a

failure to call a randomly selected jury panel. This

prompted the court to grant a mistrial upon the

Government’s oral motion.

2 If Flowers had not so testified on direct, it would have

come out on cross-examination by the Government. See Rule

609, Federal Rules of Evidence.

=

Defendants first assert that the mistrial was improper

because the Government had not filed a written motion

containing a sworn statement of facts showing a

substantial failure to comply with the provisions of the

Jury Selection and Service Act of 1968, as required by

28 U.S.C. § 1867(d) and (e). No such objection was raised

in the court below and therefore need not be considered.

In any event, the mistrial motion was inspired by the

district judge, and he was of course not subject to those

requirements. The transcript of his remarks shows that

Judge Grant was motivated solely by the lack of a

random draw of the jury. His decision to have the

Government request a mistrial and then to grant it was

within his inherent power. Rather than arbitrarily

denying future jury service to veniremen who had

previously served at the same term on another jury, the

court was ensuring compliance with the random selec-

tion requirements of the statute. See 28 U.S.C. §§ 1861,

1863, 1864 and 1866.

Defendants also assert that the sidebar preceding the

mistrial declaration should have been transcribed pur-

suant to 28 U.S.C. §753(b) which mandates the

recording of “all proceedings in criminal cases had in

open court.” First of all, no objection was made at the

time and therefore comes too late. Rule 51, Federal

Rules of Criminal Procedure. Moreover, there is no

showing that the court reporter was subsequently

requested to transcribe any notes of the sidebar. If there

was error, it was harmless within Rule 52(a) because

defendants have not shown that their rights were

affected by the failure to transcribe the sidebar. Indeed,

the mistrial was to defendants’ advantage because their

counsel had previously stated that he had not had

adequate time to prepare for the August 7 trial.

—Sa—

Defendants next contend that the convictions violated

the double jeopardy clause of the Fifth Amendment

because of the declaration of a mistrial. However,

jeopardy did not attach to prevent the December 2 trial

because the first jury was not sworn nor even completely

selected at the time of mistrial. Therefore, Downum v.

United States, 372 U.S. 734, upon which defendants rely,

is inapplicable.

The judgments of conviction are affirmed.

CAMPBELL, dissenting. I have serious reservations

regarding the trial court’s refusal to grant defendant’s

motion for a mistrial. Notwithstanding the trial court’s

instructions, I think it is pure fiction to assume the jury

could give “no weight whatever and ... erase from

their minds” officer Stalbrink’s testimony that Flowers

was a “known burglar.” I have even stronger reserva-

tions about granting the government’s motion for a

mistrial after fifteen peremptory challenges had been

exercised, when “it became apparent that at least six of

those in the jury box had been jurors in a criminal trial

the week before . . .”. The reason the government had

exhausted all of its peremptory challenges was that a

number of prospective jurors had returned a verdict of

not guilty in the previous criminal trial. Regardless of

whether jeopardy had attached, the court’s ruling, in

effect, allowed these former jurors to be removed “for

cause” and granted the government a fresh set of

peremptory challenges.!

! With + oy to the efficient use of juries selected for

service in the district courts, the trial court’s granting the

government's motion for a mistrial did little to promote the

effective and financially expeditious use of juries as advo-

cated by the appropriate committees of the Judicial Confer-

ence of the United States and the Federal Judicial Center.

—9Ja—

However, I see no reason to resolve either of these

issues, nor to determine whether reversal would be

appropriate if resolved in appellants’ favor. Rather I

would reverse on the ground that evidence obtained by

officer Stalbrink subsequent to stopping and detaining

defendants should have been suppressed. Review of the

record shows clearly that there existed no probable

cause to arrest defendants at the time they were stop-

ped and detained; the majority does not hold otherwise.

The government concedes that the search was made

without warrant and that it was not made incident to a

lawful arrest. Stalbrink testified that defendants were

not free to leave.? I fail to see any justification for declin-

ing to grant the motion to suppress.

The record reveals that defendants were travelling on

U.S. Highway 421 at approximately 11:30 P.M. in a

pickup truck loaded with cartons. Highway 421 is

frequently used by truck traffic, and, as Trooper

Stalbrink testified, there was nothing unusual about a

pickup truck loaded with cartons travelling on this

highway. Suspecting that the truck may have been

loaded with stolen color T.V. sets, Stalbrink stopped the

truck and detained the defendants for a period of time,

the duration of which is variously asserted to have been

from 15 to 25 minutes. During the detention, the trooper

ordered defendants to sit in the back seat of the patrol

ear while he checked identifications and conducted an

interrogation. Stalbrink himself testified that during

this period of time the defendants were not free to

leave.

2 Thus, the mie reliance upon Oregon. v. Mathiason,

U.S. 45 U.S. L. W. 3505 and Beckwith v. United States, 425

U.S. 341, to the extent that they may be pertinent to the

issues in ‘he instant appeal, is entirely misplaced.

—10a—

During the course of the interrogation, Stalbrink

advised the defendants of recent thefts of T.V.s from a

nearby railroad yard, and his original suspicion of the

pickup truck loaded with cartons. Although the truck

obviously was not loaded with T.V. sets, Stalbrink then

stated: “Do you mind, I am going to take a look at the

serial numbers.” Defendant Flowers allegedly consented.

The majority holds that Stalbrink had a reasonable

suspicion to stop the pickup truck and interrogate the

defendants in accord with Terry v. Ohio, 392 U.S. 1

(1968) and Adams v. Illinois, 407 U.S. 1438 (1972).

Whatever Terry and Adams hold with respect to the

right of a police officer to approach a person for

purposes of investigating possible criminal behavior and

to conduct a limited protective search for concealed

weapons, those cases have no applicability to the facts in

this case.

It is clear that once a suspect is taken into custody, or

is otherwise deprived of his freedom of action, he is

under arrest. Henry v. United States, 361 U.S. 98 (1959);

Davis v. Mississippi, 394 U.S. 721 (1969). It is equally

clear that an arrest must be based upon probable cause,

United States v. Watson, 423 U.S. 411 (1976); Spinelli v.

United States, 393 U.S. 410 (1969); Sibron v. New York,

392 U.S. 40 (1968); Aguilar v. Texas, 378 U.S. 108

(1964); Brinegar v. United States, 338 U.S. 160 (1949). In

the instant case, defendants were overtaken and appre-

hended by Trooper Stalbrink, ordered to remove them-

selves from the pickup truck to the back seat of the

patrol car, were compelled to produce identification and

undergo interrogation. That their freedom of action was

significantly interfered with is demonstrated by Stal-

brink’s own testimony that defendants were not free to

leave during the stop.

—lla—

On the basis of the foregoing facts, | am compelled to

find that the defendants were arrested. I am further

compelled to find that there was no probable cause upon

which defendants’ arrest can be based. At best, Stal-

brink possessed, as the majority recognizes, reasonable

suspicion to detain defendants. Such reasonable suspi-

cion was an insufficient basis upon which to arrest

defendants.

Since the illegal arrest resulted in evidence and

statements later introduced at trial, and since the record

is far from clear that Flowers voluntarily consented to

the search which led to the evidence, I think that the

motion to suppress should have been granted. I would

reverse the convictions.

—12a—

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Nos. 76-1259, 76-1260, & 76-1261

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

CALVIN EUGENE FLOWERS, et al.,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. S CR 75-44—Robert A. Grant, Judge.

HEARD May 16, 1977

Before CUMMINGS, and BAUER, Circuit Judges, and

CAMPBELL, Senior District Judge*.

*

_ Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

—1l38a—

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-

entitled cause by defendants-appellants, Flowers, Grei-

chunos and Hardin, a vote of the active member of the

Court was requested, and a majority of the active

members of the Court have voted to deny a rehearing en

banc. All of the judges on the original panel have voted

to deny the petition for rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

Judge Swygert voted to grant a rehearing en banc,

and his statement is attached hereto.

Statement of Circuit Judge Swygert accompanying his

vote for a rehearing en banc.

My vote for a rehearing en banc is based primarily on

Judge Campbell’s dissent. In my opinion, there were two

reasons why the district court should have suppressed

the evidence in this case. First, there was no probable

cause for Indiana State Policeman Stalbrink to stop the

truck driven by the defendant Flowers and in which the

other two defendants were riding. Stalbrink testified

that he stopped the pickup truck solely because there

had been previous thefts of television sets in the area

and the truck was loaded with cardboard boxes that

resembled television sets. Specifically, he testified as

follows:

Q And so, what is suspicious about a pickup truck

with boxes on it?

A Any pickup truck with any boxes is not particu-

larly suspicious; however, since at that time we

had several thefts of color TV sets, when I first

saw this truck at that time of the night—no

other traffic around—at my first glance I

thought these might be TV sets. They looked

like brand new cartons.

—l4a—

Admittedly, the only reason for stopping the truck

was a suspicion on the part of the police officer. This is

not enough to justify a stop. Brinegar v. United States,

338 U.S. 160, 177. “(E]very traveler along the public

highways may [not] be stopped and searched at the

officers’ whim, caprice or mere suspicion.” The major-

ity’s reliance on Terry v. Ohio, 293 U.S. 1; and Adams v.

Williams, 407 U.S. 143, to justify the stop is misplaced:

those cases stand merely for the proposition that a police

officer may stop and frisk a person suspected of carry-

ing a weapon. The rationale behind those cases was to

permit the police officer to protect himself. That

rationale is inapplicable here.

The second reason why the motion to suppress should

have been granted is that even if the stop were

legitimate, it was based on the officer’s belief that the

truck may have contained stolen television sets. How-

ever, Stalbrink was told by the defendants that the

boxes contained air conditioners and he took down the

serial numbers on those boxes on the suspicion that the

air conditioners were stolen. He had absolutely no

reason at that time to suspect that the air conditioners

were in fact stolen. His investigation of the air

conditioners thus constituted a “fishing expedition”

which is forbidden by the Fourth Amendment.