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United States v. Campbell

decided: June 29, 1978.

UNITED STATES OF AMERICA,, APPELLEE
v.
DAVID CAMPBELL AND MICHAEL TARTT, DEFENDANTS-APPELLANTS.



Appeal from judgments of the Southern District of New York entered after a jury trial before Lawrence W. Pierce, Judge, convicting appellants David Campbell and Michael Tartt of conspiracy to commit armed bank robbery, 18 U.S.C. § 371, and Tartt, in addition, of substantive counts of bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18 U.S.C. § 2113(d). Affirmed.

Before Feinberg, Mansfield and Van Graafeiland, Circuit Judges.

Author: Mansfield

David Campbell and Michael Tartt appeal from judgments of conviction entered in the Southern District of New York following an eight-day trial before Judge Lawrence W. Pierce and a jury. Tartt was convicted on all three counts of an indictment that charged him with conspiracy to commit armed bank robbery, 18 U.S.C. § 371, bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18 U.S.C. § 2113(d). Campbell was convicted only on the conspiracy count, and acquitted on the two substantive counts.*fn1

The principal claim on appeal is that the district court committed reversible error in not excluding evidence seized from the defendants' apartment. Appellant Tartt also challenges the admission of certain identification testimony at trial. Finding these claims unpersuasive, we affirm.

The essential facts of the crime are not disputed. On April 4, 1977, at approximately 10:30 A.M., three men, including Wallace Hall, who testified against appellants at trial, robbed a branch of the Chemical Bank at Cathedral Parkway and Broadway in New York City. Approximately.$19,000 was taken. Two of the robbers were armed, one with a revolver, the other with a sawed-off shotgun. Moments after the robbery Hall became separated from his accomplices during their getaway, and was arrested in a subway station near the bank.

Hall was taken back to the bank where he was identified by eye-witnesses as one of the robbers. He was then questioned by New York City police officers and federal agents, and between 1:00 and 2:00 P.M. in the afternoon he confessed to his participation in the crime. Hall admitted that his accomplices were friends known to him only as "Dave" and "Mike," and that they lived in the same apartment building where Hall lived. He also gave the officers general descriptions of the two men.

Between 2:00 P.M., when this information was obtained from Hall, and 6:00 P.M., when appellants were arrested, police detectives and federal agents worked together on the investigation. In addition to sharing responsibility for the continued questioning of Hall, they also verified the information he gave them concerning the whereabouts of "Mike" and "Dave," interviewed witnesses at the bank, and arranged to have the bank's surveillance photographs developed.*fn2

At approximately 4:15 P.M. FBI Agent Martinolich, the case agent in charge of the investigation, telephoned an Assistant United States Attorney to obtain authorization for making the arrests of appellants. According to Martinolich's testimony at the pretrial suppression hearing, the purpose of this procedure is to permit the United States Attorney's staff to make a legal judgment as to whether or not an arrest should be made and whether or not a warrant should be obtained. The Assistant with whom Martinolich spoke authorized the agents to make the warrantless arrests.

Martinolich then picked up the developed surveillance photographs and met with other agents and detectives to plan the arrest procedures. Campbell and Tartt were arrested in their respective apartments at approximately 6:00 P.M., and various items of evidence were seized during the arrests.*fn3

The defendants moved prior to trial to suppress this evidence on the ground that the warrantless arrests were unlawful, and that the evidence seized during the arrests was obtained in violation of their Fourth Amendment rights. Judge Pierce denied the motion after a five-day hearing, holding that exigent circumstances justified the warrantless arrests, and finding no other basis for suppressing the evidence seized from appellants' apartments.

Discussion

For reasons that are thoroughly analyzed and explicated in our recent decision in United States v. Reed, 572 F.2d 412, 417-424 (2 Cir. 1978), the warrantless entry of law enforcement officers into the private home of a suspect, for the purpose of making an arrest supported by probable cause, is barred by the Fourth Amendment in the absence of "exigent circumstances," see United States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), Cert. denied, 429 U.S. 1064, 97 S. Ct. 792, 50 L. Ed. 2d 781 (1977); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (En banc ). We have thus resolved in this circuit an issue that has long been left open by the Supreme Court. See Coolidge v. New Hampshire, 403 U.S. 443, 480-81, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); United States v. Watson, 423 U.S. 411, 418 n. 6, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976); United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976).

The question before us on this appeal, therefore, is whether the circumstances surrounding the arrests of Campbell and Tartt were sufficiently "exigent" to excuse the agents' failure to obtain a warrant. The answer requires us first to examine the meaning and limits of the term "exigent" in order to determine whether the circumstances here may be so labelled.

The phrase "exigent circumstances" refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. For instance, officers in "hot pursuit" of an armed robber ...


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