OPINION OF THE COURT
EDWARD R. BECKER, District Judge.
1. PRELIMINARY STATEMENT
This is a bank robbery case. On February 10, 1966, defendants, Miles, Kirby, and Vaughn, were indicted under 18 U.S.C. § 2113(a) and (d), and on September 8, 1966, verdicts of guilty were returned against each of them by a jury in the District Court for the Western District of Pennsylvania. All defendants appealed those convictions and were awarded new trials.
Kirby's request for relief is predicated on the contentions that: First, the search and seizure of certain evidence which played a substantial role in his conviction was not incidental to a lawful arrest and cannot be justified on any other grounds; Second, the defendant was deprived of his Fifth Amendment rights by the court's charge to the jury that the unexplained possession of recently stolen property raises an inference of guilt; Third, the trial court erred in receiving the testimony of Pittsburgh Police Sergeant Tercsak regarding Kirby's alleged flight; and Fourth, the evidence was insufficient as a matter of law to sustain the conviction. For the reasons set forth below, we affirm.
II. THE RELEVANT FACTS AND THE COURT'S PRIOR OPINION
The basic facts, as they appear of record in the trial transcript and in the transcript of the motion to suppress evidence heard before the first trial, may be summarized as follows. At approximately 2:00 p. m. on October 27, 1965, the Eureka Savings and Loan Association, located in the Oakland section of Pittsburgh, was robbed at gunpoint by two Negro males wearing raincoats and hats. As the robbers exited the bank with $11,006, the bank comptroller, Mr. Braun, followed them to an alleyway which opened onto Fifth Avenue. At about that time, one Mr. Obritz, who was waiting in his car for a traffic light on Fifth Avenue, noticed two Negro males hurry out of this alleyway, cross Fifth Avenue and jump into a Pontiac convertible parked next to him in the curb lane. The Pontiac, driven by a third individual, then "zoomed" down Fifth Avenue in front of Mr. Obritz, who thereupon noted on an old tissue box, the license number and a description of the car. Further investigation revealed that the Pontiac was owned by the defendant Vaughn and that defendants
On the basis of the facts just recited surrounding the robbery, on November 4, 1965, Sergeant Tercsak, Chief of the Robbery Division of the Pittsburgh Police, sent Detective Giorgianni to a city magistrate to procure an arrest warrant for Kirby.
This November 9th message was communicated by the Correspondence Unit to New York City Police Detective Daly
As we have noted above, prior to the first trial the defendants moved to suppress the bait money as evidence. The motion was denied, and the money was introduced into evidence by the Government. Following the convictions, the denial of the motion to suppress was assigned as error both on the trial court and on appeal. The grounds asserted were that the arrests were unlawful because the warrants were defective and that, even if the arrests were lawful, the seizure was not incident thereto.
On (the first) appeal, Judge Seitz, speaking for the Court, approached the arrest issue by stating:
Judge Seitz found that a warrantless arrest for an out-of-state felony is permissible under New York law if based on probable cause. On the issue of whether or not probable cause existed, Judge Seitz noted that the appellants including Kirby did not argue that the information transmitted to the New York police was not sufficient to give Detective Daly probable cause to arrest for the Pittsburgh robbery. He added:
Judge Seitz went on to hold that the seizure of the "bait money" was valid as a lawful search incident to a lawful arrest.
At appellant's second trial, no additional facts concerning the arrest and search and seizure were presented to the court. The "bait money" was again admitted into evidence over counsel's objection that the search was not incident to arrest. However, on appeal, the appellant has abandoned this argument and, instead, contends that the search and seizure was invalid because of a lack of probable cause to arrest. Appellant grounds his probable cause argument on the decision of the Supreme Court in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and attempts to justify its assertion for the first time on this appeal on the grounds that Whiteley was decided since Judge Seitz's opinion on the first appeal in this case. While we could dispose of the
III. VALIDITY OF THE ARREST
In Whiteley, the sheriff of a sparsely populated Wyoming county swore to a complaint charging petitioner and another with breaking and entering into a business establishment in his county. The only basis for the complaint was the tip of an unidentified informant. Although this "fact" was not contained in the complaint or otherwise communicated to the Justice of the Peace, arrest warrants were issued nevertheless. Subsequently, the sheriff broadcast descriptions of the suspects and their car over statewide police radio. Petitioner was apprehended in another locality by police officers who acted upon that message.
The Whiteley court first analyzed the complaint and easily concluded that it was insufficient "to support an independent judgment that probable cause exists for the warrant [citations omitted]." Whiteley v. Warden, 401 U.S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971). Next, the court applied the same probable cause standards to the arresting officers and concluded, on the basis of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), that the arresting officers did not have probable cause to arrest. However, in response to the state's argument that the radio bulletin supplied the arresting officers with the requisite probable cause, the court noted:
Unlike a search warrant,
In the Bianco case, the defendant was arrested by a special agent of the FBI in Pittsburgh on the basis of information communicated to the arresting agent from a special agent in Baltimore. The core of this information was the summary assertion that a third Baltimore agent "had received reliable information that Bianco would take the 8:25 plane [and] that he had lottery materials with him. . . ." In deciding whether the Pittsburgh officers had probable cause to make the arrest,
Thus, the law in this circuit since 1951 and the law as announced by Whiteley is that, while the officer in a distant jurisdiction
Appellant strenuously argues that the Pittsburgh police lacked probable cause. This assertion is based on facts of record concerning the procurement of the warrant on November 4, when the officer merely represented to the magistrate that Kirby had committed the robbery. If the swearing officer and his superiors had no facts on which to base this conclusion, our case would fall squarely within the holding of Whiteley. See United States v. Morris, 445 F.2d 1233 (8th Cir. 1971). However, appellant's reliance on the warrant of November 4 is misplaced. As we noted supra, a warrant for Kirby was also issued on November 7. At that time, as we have noted, Detective Giorgianni recited to the city magistrate the following facts:
These facts conveyed to the magistrate comported substantially with the knowledge possessed by Sgt. Tercsak, see United States v. Stratton, 453 F.2d 36 (8th Cir. 1972), prior to the obtaining of the November 7 warrant, i. e., that Kirby generally fit the description of one of the robbers and that Miles was more positively identified as one of the robbers; that Kirby generally fit the description of the man seen with Miles and Vaughn about an hour before the robbery; that the clothes worn by one of the men seen by Mr. Obritz matched the clothes worn by the unknown man accompanying Miles and Vaughn about an hour before the robbery; that Miles and Kirby could not be found in Pittsburgh which tended to corroborate their information that they had fled; and that Kirby's fingerprints were found in the suspected getaway car. We find that the above facts constituted probable cause to arrest, see United States ex rel. Grano v. Anderson, 446 F.2d 272 (3d Cir. 1971), and that the New York City police were justified in acting on the teletype communication from the Pittsburgh police. Thus, the New York City police also had probable cause to arrest the appellant Kirby.
Since we have found probable cause to arrest, and since this Court has previously decided that the search was incident to the arrest and was otherwise
IV. THE FIFTH AMENDMENT CLAIM
Appellant next contends that the trial court's instruction concerning the inferences that can be drawn from the unexplained possession of recently stolen property was in error because this instruction penalized the defendant for his failure to testify.
The inference of guilt arising from the possession of recently stolen property is well-established in the law. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972). However, the charge did not violate the defendant's Fifth Amendment rights, in that it expressly stated that the inference may be rebutted from any source whatsoever, not limited to defendant's testimony. The charge comports with that approved in United States v. Ruggere, 450 F.2d 302 (3d Cir. 1971). We hold there has been no violation of appellant's Fifth Amendment rights.
V. THE COURT'S INSTRUCTION ON FLIGHT
Kirby contends that the testimony of the law enforcement officers concerning flight was prejudicial and requires reversal. Sgt. Tercsak testified at trial about the unsuccessful efforts of the Pittsburgh police to locate Miles and Kirby for more than two weeks after the robbery. Mr. Fuselier, a Special Agent for the FBI, also related his unsuccessful efforts to locate appellant. In combination, these agencies checked the bars, hotels, friends' and relatives' homes, and all other places Kirby was known to frequent, but they were unable to locate Kirby and Miles in or around Pittsburgh. The trial court instructed the jury as follows:
While some doubt has been expressed about the probative value of evidence of flight, see Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), it has been consistently held admissible as circumstantial evidence of guilt to be considered with the other facts of the case. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Bailey v. United States, 410 F.2d 1209 (10th Cir.), cert. denied, Freeman v. United States, 396 U.S. 933, 90 S.Ct. 276, 24 L.Ed.2d 232 (1969); United States v. Heitner, 149 F.2d 105 (2d Cir. 1945); Vick v. United States, 216 F.2d 228 (5th Cir. 1954); United States v. Pate, 342 F.2d 646 (7th Cir. 1965); Leathers v. United States, 250 F.2d 159 (9th Cir. 1957); Green v. United States, 104 U.S.App.D.C. 23, 259 F.2d 180 (1958). Moreover, the defendant need not be aware of the
VI. SUFFICIENCY OF THE EVIDENCE
The appellant's final argument is that the evidence was insufficient as a matter of law to sustain a conviction. When sufficiency of the evidence is at issue on appeal, it is fundamental that we must view the evidence in the light most favorable to the government. United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971). The evidence taken in that light includes the following: (1) several bank tellers tesified that one of the two robbers fit Kirby's general description although they were unable to positively identify Kirby as one of the perpetrators; (2) two detectives had seen a man fitting Kirby's general description with Miles and Vaughn (who pleaded guilty) about one hour before the robbery; (3) the appellant's fingerprints were found in Vaughn's car which was seen speeding away from the area of the robbery moments after it took place; (4) the appellant left town after the robbery, and (5) the "bait money" was found on the appellant's person twelve days after the robbery. We cannot say that this evidence and the reasonable inferences which can be drawn therefrom, when viewed in the required light, do not support the jury's verdict.
The District Court will be affirmed.
Circuit Judge HASTIE would reject the present tardy attack upon the validity of appellant's arrest solely on the ground that neither in support of his motion to suppress the fruits of the arrest nor as part of his defense at either trial did appellant contend that probable cause for arrest was lacking.
However, we note too the concern expressed by Mr. Justice Stewart in Coolidge of the dissimilar requirements for warrantless arrests and searches. He laments:
In United States v. Davis, 461 F.2d 1026 (3d Cir., filed May 31, 1972), this Court found it unnecessary to decide the same issue, terming it an "open question."
The facts of that case were held to present an exception to the warrant requirement. Nor should we unnecessarily decide this difficult constitutional question here, for the arrests were made in a public place. Cf. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc), holding that the circumstances justified a warrantless unconsented entry of a home to make an arrest, but also going on to decide that in unexceptional circumstances a warrant is needed to make an arrest in a home. See also United States v. Bazinet, 462 F.2d 982 (8th Cir. 1972), upholding a warrantless arrest in a public place based on probable cause, and noting that the issue of the validity of warrantless arrests in the home was then before the Supreme Court, Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 argued Jan. 10, 1972. The Court has since announced that it was unnecessary to decide the lawfulness of the arrest in that case since no fruits thereof were used at the trial. 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).
The italicized portion of the statute has subsequently been deleted.