Opposition Brief — Molkenbur v. United States

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_ OCTOBER: TERM, 1970

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ROBERT JOSEPH MOLKENBUR, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE heeinie CIRCU IT

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' MEMORANDUM FOR THE UNITED STATES -

| _ IN OPPOSITION

After/a jury > trial in the United States Distiriet

Court for the Eastern District of Missouri, petitioner

was convicted of’ unlaw ful possession of merchandise -

stolen from an ‘interstate shipment—~in. violation of |

| (38 U.S.C. 659. He was tentatively sentenced to the

“maximum under 18 U.S.C. 4208(b) aaid ordered com.

mitted for. study, but chose to, appeal immediately.

~The court of appeals affirmed the conviction.

The questions raised concern the validity of the,

seizure of the stolen merchandise. The evidence at

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a-hearing on the motion to suppress 2ad at trial

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showed that petitioner operated an laverbne freight

track owned by Hennis Truck Lines. Or April 1,

1969, while the Hennis truck was parked in’ front

of a house owned by petitioner, but eceupicd by his

nephew, co-defendant Toler, pétitioner was observed

by an informer *handin g@ three boxes over the fence

to Toler (Tr. 23- 24)."| The informer Was ji a house

across the street‘visiting her daughter. The ie

learned that the Stop at Toler’s residence had. net

been. authorized ‘by the compan y (H. Tr. 31- 32; Tr.

24). .

contacted’ the police and, told them that frefeht was

being ‘taken from. the truck and earried to the rear

“of the house (H.Tr. 33; Tr. .77-78).°. Upen arrival,

‘the police immediately arrested petitioner in front of.

_the house but conducted ‘ro search of him or the’

_ premises fH.Tr. 8). Petitioner admitted removing

a ‘power mower from the truck and said that. the.

. officers’ could verify his rigkt to make the step by

calling his dispatcher. He led the officers toe the back

of the house into the kitchen. (H.Tr. 14-16). As

they~were entering an officer from 2 police unit which

are Tr.’ ’ and “Tr:” refer respectively to the tr anscript of

the hearing on the motion to suppress and the ‘trial, both of *

whi@ have been filed with this Court.

*The mother was visiting the daughter at the time.. As the

.- daughter was galling, her mother and sister reported to her

that boxes were being taken off. (Tr. 67).

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On April 16,.1969, the i kee ataHialian

that the Hennis truck was parked in front of. Toler’s-

_ residence. This time the original informer’s = deughter

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had driven into the alley at the rear-of the house

’ (H.Tr, 15-16, 24; Tr. 72-75, 88).called their atten-

tion to a carton in the aed, From the alley, ’, the

officers had seen in the yard a large par tially amad 7

carton exposing several shirts’ in boxes and: plastic ©

bags markede‘Campus” brand (H.Tr. 25-27, Tr. 74-

75, 89, 92-94, 97). The officers then arrested Toler,

who was walking out of the kitchen (Tr. 81-82; 84).

‘The carton was removed to police headquarters. and

__an inventory of its contents was taken. A_ shipping

document was found identifying the manufacturer

_-and the order number . of Picea contents (Tr. 95-96,

104).

‘The district court denied the moticn to suppress. ie

(A. p. 10,* H: Tr. 42, see also Tr. 90). The court —

of appéals affirmed, holding that the police had prob-

able cause to. arrest Toler and, incidentally thereto; -

_~ to seize from the yard the carton. which was in plain

view and whieh wa. s reasonably believed to be stolen

merchandise. _ Sais Bi ean

__. Petitioner argues that there was no pr obable cause ~

‘for the arrest of Toler. 01 or himself, and that in any

,event, the seizure without a - Warrant could not be

. justified as incident to the .arrest under Chimel ve |

California, 395 U.S, 752. The fects summarized .

above show probable cause to believe. that petitionei a

and Toler’ Were engaged in a scheme Whereby _ peti-

tioner left in Toler’s. back ;yard-mer chandise he was _

supposed to transport. This. was particularly true.

+. after Toler was arrested, since by that time the large

8 “A” refers to petitioner's separate appendix on file with

: this Court.

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box of shirts in. the ‘eat yard had on spotted,

Since the officers were validly on the premises* and

had ample’ probable cause to believe that the large

box of shirts had been stolen, the officers ‘had a right

_ to seize the. stolen package before its contents could

be dissipated. | ‘Ker. v. California, 374 U.S. 23. See |

Chambers v. Muaroney, 399 USS. 42.

It is therefore respectfully submitted that the peti:

tion for a writ of certior ari should be denied.

PRWIN N. GRISWOLD, -

Solicitor Gu neral.

OCTOBER 19702

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4 Petitioner argues that the government was inconsistent ©

in relying on the fact that he invited the officers in: to make'a

telephone ¢ call.. The evidence at the motion to suppress traced

the movements of- both groups of officers, those who arrested ;

petitioner and those who arrested Toler, and showed that

both were vaiidly on “the premises. It was. clear, however,

that the box was seen from the alley and that it was the

group who arrested Toler who called the box to the attention

of the others. ’

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YY ou. S. GOVERNMENT PRINTING OFFICE; 1970 ° . heals 247

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