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United States v. Henderson

decided: July 17, 1972.


Leventhal,*fn* Feinberg and Timbers, Circuit Judges.

Author: Feinberg

FEINBERG, Circuit Judge:

Appellant Mark Frasier, presently incarcerated in Auburn Correctional Facility, New York, appeals from the dismissal of his petition for a writ of habeas corpus by Judge Charles L. Brieant, Jr., of the United States District Court for the Southern District of New York. In July 1967, appellant was tried in the Supreme Court, New York County, before Justice Francis T. Murphy, Jr., and a jury; appellant was convicted on four counts of robbery in the first degree, one count of second degree assault, and one count of possession of a loaded firearm. As a second felony offender, appellant was sentenced to a lengthy term of imprisonment.*fn1 His conviction and sentence were affirmed without opinion on April 22, 1971, by the Appellate Division, 36 A.D.2d 904, 320 N.Y.S.2d 496. On the same day, the Appellate Division also affirmed without opinion the denial by Justice Murphy of appellant's coram nobis petition for re-sentence, 36 A.D.2d 906, 320 N.Y.S.2d 497. The Court of Appeals denied leave to appeal from both decisions on June 8, 1971.

On the present appeal, appellant presses three constitutional claims: that certain evidence was improperly seized and introduced at his trial; that the pretrial identification procedures were unnecessarily suggestive and tainted the in-court identifications of appellant by three victims; and that the state had failed to inform appellant of his right to appeal in forma pauperis from the prior felony conviction that was used as a predicate for his present sentence as a second felony offender. We affirm the dismissal of the first two of these claims, but as to the third we remand to the district court for further proceedings.

The indictment in this case arose out of an armed robbery in the "Convent Social Club" located in a basement on Convent Avenue in Harlem. The robbery took place at about 3:00 a.m. on Saturday, November 19, 1966. Two men gained entry into the club, at gun point herded about a dozen men into the back room, stole their wallets, watches and money, and then fled carrying the loot in an A & P shopping bag. During the five minutes the robbery lasted, one shot was fired. Several blocks away, two New York police officers in a patrol car, who knew nothing of the robbery, heard shouts and saw two men running through St. Nicholas Park. One officer, Patrolman Joseph Keane, jumped from the car, shouted to the man with a shopping bag and then chased him on foot when the man -- after stopping momentarily -- began to run.*fn2 The chase was short -- down 129 Street for about half a block, then through a deserted "areaway" to 130 Street. During the chase, Patrolman Keane lost sight of the man for only a few seconds. When the patrolman turned the corner at 130 Street, he saw the man he had chased -- appellant Frasier -- sitting on the top step of a stoop to a small apartment building, about five yards away. Appellant was leaning backwards, pushing the shopping bag behind the vestibule doors. He was out of breath and perspiring. The patrolman, with his gun drawn, ordered appellant to "Stand up." Appellant responded: "What are you chasing me for?" At that point, Officer Keane's partner drove up, and, while the partner "covered" appellant, Officer Keane searched the shopping bag, which was still "partially sticking out" of the vestibule doors, and then "patted down" appellant. The bag contained a revolver with one shell spent as well as the wallets, watches and some of the money later identified as having been stolen from those present at the social club. Appellant was then brought to the station house where a diagram of the club's interior was found in one of his pockets.

A. The Search of the Shopping Bag

The district court held that the officer's search of the shopping bag was justifiable as being incident to an arrest without a warrant for which "there was probable cause." We believe that the district court was correct. It is true, as appellant asserts, that the patrolmen did not know positively that any crime had been committed or precisely what type of crime may have been committed. But the Constitution requires neither such certainty nor such specificity. What is required is that

at the moment the arrest was made . . . the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964); see ALI, Model Code of Pre-Arraignment Procedure ยง 120.1(2) and (3), at 15-16, 129-141 (P.O.D. No. 1, April 10, 1972).

In the present case, the patrolmen were not confronted with a pair of typical joggers or other innocuous activity. See Sibron v. New York, 392 U.S. 40, 62-63, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). It was late at night, the patrolmen had just heard shouts or yelling and then saw two men running out of a deserted park away from the yelling. Improbably, one of the men was carrying a shopping bag. When an officer jumped from the patrol car and shouted "Stop! Police!", one of the men -- appellant -- "turned and looked in [his] direction" but fled. Then, as already indicated, after Officer Keane had chased appellant to 130 Street, the officer saw him pushing the shopping bag behind the vestibule doors. This attempt to hide the bag, coupled with appellant's flight from the police and the other circumstances already enumerated, affords a basis for significantly more than a mere suspicion that appellant had committed a serious "offense." See Ker v. California, 374 U.S. 23, 34-37, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); United States v. Wabnik, 444 F.2d 203 (2d Cir.), cert. denied, 404 U.S. 851, 92 S. Ct. 88, 30 L. Ed. 2d 91 (1971). We recognize that even though Officer Keane had reasonable cause to believe that a serious crime had been committed, he could not at the crucial moment determine precisely what crime that was -- whether, for example, it was robbery, armed robbery, or burglary. But common sense and authority suggest that this inability should not invalidate an otherwise proper arrest. See Bell v. United States, 108 U.S.App.D.C. 169, 280 F.2d 717 (1960); ALI Model Code of Pre-Arraignment Procedure, supra, at 136. The arrest was thus constitutionally permissible.*fn3 Since this arrest and the search incident to it took place prior to the decision in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), that decision is inapplicable here. Williams v. United States, 401 U.S. 646, 91 S. Ct. 1148, 28 L. Ed. 2d 388 (1971). Under the constitutional standard that does control, see, e.g., Stoner v. California, 376 U.S. 483, 486-487 & n. 4, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964), the search of the shopping bag within appellant's reach was clearly permissible.*fn4

B. The In-Court Identifications

It should first be noted that even if the in-court identifications of appellant by three of the robbery victims are put entirely to one side, the remaining evidence against him was overwhelming. Appellant was, after all, caught out of breath and perspiring with the stolen wallets, watches and money minutes after the crime.*fn5 We are tempted to hold that any improprieties leading up to the in-court identifications could be treated as harmless error, particularly with respect to the conviction on the robbery counts. Cf. United States v. Olsen, 453 F.2d 612, 616 n. 4 (2d Cir. 1972); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1250-1252 (1968) (en banc) (opinion of Leventhal, J.), cert. denied, 394 U.S. 964, 89 S. Ct. 1318, 22 L. Ed. 2d 567 (1969). Nonetheless, the identifications appear to have been essential to at least the assault conviction, and, in any event, may have influenced the jury's deliberations. We will therefore discuss the merits of appellant's claims under Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), which both sides agree governs here.*fn6 As we have said before, the inquiry required under the due process clause is "two-pronged"; were the identification procedures "unnecessarily" suggestive, Stovall, supra, 388 U.S. at 302, 87 S. Ct. 1967, and, if so, did they "give rise to a very substantial likelihood of irreparable misidentification"? Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). See United States ex rel. Springle v. Follette, 435 F.2d 1380, 1382 (2d Cir. 1970), cert. denied, Springle v. Zelker, 401 U.S. 980, 91 S. Ct. 1214, 28 L. Ed. 2d 331 (1971); United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S. Ct. 151, 27 L. Ed. 2d 146 (1970).

On direct examination in the present case, three victims identified appellant as being the man who, brandishing a revolver, committed the robbery (with the help of an accomplice) at the social club during the early morning hours of November 19, 1966.*fn7 On cross-examination, however, each of the three indicated that he had made a previous identification under procedures that appellant claims were constitutionally defective. The first witness, Kirk Brown, identified appellant in a one-man show-up at the stationhouse about one hour after the crime. Sam Hamilton, the second witness, identified appellant when shown a single photograph several weeks before the trial. Leavy Durant picked appellant's photograph out of "several other pictures . . . of different people" several weeks before the trial. Durant believed, however, that appellant's name might have been on the picture and also testified that Kirk Brown "could have" told him that he had identified someone named Frasier.

Upon a full examination of the record, we conclude, as did the district court, that these procedures did not result in a ...

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