United States v. George Joseph Troutman, 458 F.2d 217, 10th Cir. (1972)
United States v. George Joseph Troutman, 458 F.2d 217, 10th Cir. (1972)
United States v. George Joseph Troutman, 458 F.2d 217, 10th Cir. (1972)
2d 217
Two points are raised on appeal: (1) the propriety of the trial court's reception
into evidence of certain exhibits which are said to have been seized in an
unlawful search and seizure; and, (2) the propriety of the trial court's ruling that
George Troutman was not entitled to be tried separately from his brother. The
illegal search and seizure issue requires some recital of the facts.
Shortly after three o'clock in the morning, the burglary alarm in the Valley
State Bank in Sharon, Kansas (a town of 280 inhabitants), sounded, and an
interested citizen, who had formerly been the town marshal, upon hearing the
sound, rushed to his front door to see what he could see. This person testified
that he noticed but one automobile on the streets of Sharon which was being
driven in a northerly direction toward Highway 160. The witness and his wife
immediately got in their car and also drove northward toward Highway 160 on
a street paralleling the street on which the other car was being driven. The
witness went on to testify that the car which he and his wife were following
turned eastward on Highway 160 and drove out of Sharon toward Attica,
another small Kansas village located ten miles east of Sharon on Highway 160.
The vehicle in question was described as being a "late model car * * * a light
colored top * * * the tail lights * * * resembled a Thunderbird tail light."The
witness and his wife then drove by the bank and noticed that the front door of
the bank had apparently been pried open; whereupon they proceeded to the
home of the town marshal and reported the matter to him, giving a description
of the car which they had followed. The marshal immediately caused radio
dispatches to be put out to the effect that the bank in Sharon had been
burglarized and that persons believed to be the burglars were proceeding
eastward out of Sharon on Highway 160 in a vehicle thought to be a
Thunderbird.
4
Fred Freeman, Chief of Police for Attica, was on duty at the time and he heard
a radio message that the Sharon bank had been burglarized and that the car in
which the burglars were believed to be riding was proceeding westward on
Highway 160 into Attica. Freeman was not apprised, however, by the particular
radio dispatch which he heard that the car in question was believed to be a
Thunderbird. In any event, at about the same time he heard the aforesaid radio
dispatch, Freeman espied an automobile being driven eastward on Highway
160 and he gave pursuit.
Dean Goddard, a police officer in Anthony, Kansas, also heard a radio dispatch
concerning the bank burglary in Sharon and he learned that the persons
believed to be the burglars were heading east on Highway 160 in a "white over
dark Thunderbird." Anthony is located east of Attica and so Officer Goddard
proceeded to drive westward on Highway 160 in search of the Thunderbird. It
was in this setting, i. e., with Freeman pursuing the suspected vehicle eastward
out of Attica on Highway 160 and with Goddard coming from the other
direction (toward Attica) on the same highway looking for a Thunderbird, that
Freeman established radio contact with Goodard. Freeman informed Goddard
that he had the car in question in sight and believed it to be a Thunderbird.
Goddard in turn suggested to Freeman that when he (Goddard) saw the
headlights of the approaching vehicle he and Freeman would simultaneously
turn on their red lights and thereby stop the vehicle. This was accomplished at a
point about five miles east of Attica a short time before four o'clock on the
morning of the burglary.
6
Freeman and Goddard got out of their respective vehicles, with Freeman pulling
his pistol and Goddard displaying a riot gun. Freeman approached the driver of
the stopped Thunderbird, who was subsequently determined to be George
Troutman, and engaged him in conversation. Specifically, Freeman inquired of
the driver as to where he was going and the response was "down the road."
When Freeman then asked to see his driver's license, Troutman got out of the
car. Freeman next noticed that another occupant of the car at about the same
time opened the right hand door to the car and Freeman walked around to the
other side of the car "to see what was going on." Freeman then observed laying
on the ground "under the edge of the car * * * wrecking bars, hammers, some
punches and some leather gloves and a flashlight." These items were taken into
custody by the officers and the Thunderbird was then thoroughly searched, the
search disclosing, among other things, a hatchet, a knife, three walkie-talkies,
an electric drill and a drill socket extension.
The trial court agreed that the arrest was made at the time the officers stopped
the Thunderbird and approached the stopped vehicle with drawn guns.
However, the trial court held that under the circumstances the arrest was made
by both Freeman and Goddard and that they not only had probable cause for
arresting Troutman but would have been "derelict in their duty" if they had not
so stopped the car in question. In thus holding, the trial court, among other
things, noted that Highway 160 was not comparable to the New Jersey turnpike
with its constant flow of traffic and that travel in that sparsely populated area of
Kansas at three o'clock in the morning was not the usual. We generally agree
with the trial court's analysis of this matter.
10
Where, as here, an arrest is made without a warrant, the arresting officer must
have probable cause for making the arrest, otherwise the arrest is an unlawful
one. It has been held that to constitute probable cause for an arrest it must be
shown that at the time the officer makes the arrest the facts and circumstances
within his knowledge and of which he has reasonably trustworthy information
are such as would warrant a prudent man in believing that the person to be
arrested has committed an offense. Draper v. United States, 358 U.S. 307, 79
S.Ct. 329, 3 L.Ed.2d 327 (1959), and Holt v. United States, 404 F.2d 914 (10th
Cir. 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 799 (1969).
This rule of probable cause has been described as a "practical, nontechnical
conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly
hamper law enforcement. To allow less would be to leave law-abiding citizens
at the mercy of the officers' whim or caprice." Brinegar v. United States, 338
U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). It has also been held that
probable cause is to be determined by the courts on the basis of the collective
information of the police involved in the arrest, rather than exclusively on the
extent of the knowledge of the particular officer who may actually make the
arrest. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833 (1966),
cert. denied, 384 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967).
11
Application of the foregoing principles to the facts of the instant case leads us
to conclude, as did the trial court, that Officers Freeman and Goddard did have
probable cause for turning on their red lights and stopping the vehicle in which
the burglars were believed to be riding and then effecting an arrest of the
vehicle's occupants. The car in question was placed near the scene of the
burglary at the time of the burglary and was thereafter reported as heading
eastward on Highway 160. The fact that no vehicle other than the one here in
question was seen by either Freeman or Goddard till after the arrest is deemed
to be significant. The scene of the burglary was a small hamlet in Western
Kansas and we agree with the trial court that Highway 160 is not to be
compared to the New Jersey turnpike. Actually, the geographic area here
involved under the circumstances was pinpointed with a considerable degree of
certainty. See in this general connection such cases as United States v.
Thurman, 135 U.S.App.D.C. 184, 436 F.2d 280 (1970), and United States v.
Skinner, 412 F.2d 98 (8th Cir. 1969), cert. denied, 396 U.S. 967, 90 S.Ct. 448,
24 L.Ed.2d 433 (1969). In sum, we hold that Officers Freeman and Goddard
did have probable cause for arresting Troutman as they did.
12
Coleman v. United States, 137 U.S.App.D.C. 48, 420 F.2d 616 (1969), and
Schnepp v. Hocker, 429 F.2d 1096 (9th Cir. 1970), involve factual situations
somewhat akin to the present one. In the former, the arresting officer, based on
information given the police, was on the lookout for a particular make of
automobile, as was Goddard in the instant case; whereas in the latter case, the
arresting officer, like Freeman, had only been advised that the burglars were
effecting their escape in a particular vicinity in an automobile of an unidentified
make. In each of those cases, based on the facts and circumstances there
present, it was held that the arresting officer had probable cause to arrest
without a warrant. Accordingly, we find no error in the trial court's
determination that Troutman's arrest was lawful.
13
14
George Troutman also asserts that the trial court erred in denying his motion
for a severance. The grounds advanced to the trial court as to why a severance
should be granted were a bit vague, but there was the suggestion that the
Troutman brothers might have inconsistent defenses, though the trial court was
certainly in nowise fully informed. Upon trial, however, some degree of what
might be described as conflict between George and Kenneth Troutman did
develop. George Troutman elected not to testify. However, his brother Kenneth
did testify, and the gist of his testimony was that, though present, he was asleep
in the car and did not participate in any burglary. It is said that such tends to
incriminate, inferentially at least, George Troutman.
15
The granting of a motion for separate trials lies within the sound discretion of
the trial court and on appeal its ruling will not be upset except on a showing of
clear abuse. And it has been held that hostility between defendants and the fact
that one may try and save himself at the expense of a codefendant is not in
itself sufficient to require separate trials. Dauer v. United States, 189 F.2d 343
(10th Cir. 1951), cert. denied, 342 U.S. 898, 72 S.Ct. 232, 96 L.Ed. 672 (1951).
16
17
Judgment affirmed.