Lem PIGG, Jr., Appellant, v. UNITED STATES of America, Appellee, 337 F.2d 302

MATTHES, Circuit Judge. Lem Pigg, Jr. was found guilty by a jury of violating Title 18 U.S.C. § 659, and has appealed from the judgment of conviction under which he was imprisoned for a period of ten months. The sole question for determination is whether there was probable cause for the arrest and the resulting seizure of the evidence on which the conviction rests. A timely motion to suppress the evidence was interposed by appellant and denied by the District Court. The Government established that during the night of December 26, 1963, at least one box or carton of shoes destined to St.

Helena, Oregon, was stolen from a truck belonging to Triangle Express and Transfer Company, in the City of St. Louis, Missouri. The only direct evidence on the issue of probable cause is found in the testimony of the arresting officer, a member of the Metropolitan Police Force of the City of St. Louis, Missouri. This officer, Herman Ubben, testified that about ten-fifty o’clock p. m. on December 26, 1963, while on a routine patrol, he saw appellant, known to Ubben to be a “noted thief,” walking westwardly on the north side of Biddle Street between Twelfth and Thirteenth Streets in the City of St.

Louis and about three and one-half (3i/4) blocks from the parking lot of Triangle Express and Transfer Company. Appellant was carrying a box and when Ubben stopped his automobile about two feet from appellant, he observed a label on the box upon which appeared the words “International Shoe Company.” At that time Ubben was wholly ignorant of the theft from the interstate shipment. Ubben then had this colloquy with appellant: “I asked, where are you going with the box, Lem, where did you get it?

He said, I found it; I said, I bet you stole it, and he said, I wouldn’t doubt it.” The officer’s testimony does not establish with exactness the time of the arrest as related to seizure of the box, but the officer did state without equivocation that he did not observe that there was another “seal” on the box with the words appearing thereon, “St. Helena, Oregon,” until after he had “questioned him and taken the box into his custody.” Appellant was taken to the police station where the box was opened and six pairs of shoes found therein.

From cases which have considered the question before us, there has emanated •guidelines and standards which are to be applied in determining whether, under the facts and circumstances presented, probable cause existed. Thus, in Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 1310, 1311, 93 L.Ed. 1879 (1949), this pronouncement appears: “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

The standard of proof is accordingly correlative to what must be proved. “ ‘The substance of all the

definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. De Armit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion [Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543]. 276 U.S. at page 161 [45 S.Ct. at page 288, 69 L.Ed. 543]. And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v.

United States, 7 Cranch 339, 348 [3 L.Ed. 364], Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543].” The same basic principles were recognized by the Supreme Court in Henry v.

United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), which also involved a prosecution under 18 U.S.C. § 659, and where upon more persuasive facts than this record presents, the Court held that the officers did not have probable cause for the arrest, the search was illegal and the articles seized were not admissible in evidence.

From the teachings of the Supreme Court, it is evident that the key question presented in cases of this nature is whether the information possessed by the arresting officers was sufficient to constitute “probable cause” as opposed to “mere suspicion.” This issue, factual in nature, must be resolved from the facts and circumstances of each particular case, Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302 (1949); Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742, 744 (1959) citing cases; Hawkins v.

United States, 8 Cir., 288 F.2d 537, 541 (1961), cert. denied, 366 U.S. 975, 81 S.Ct. 1943 (1961); Mueller v. Powell, 8 Cir., 203 F.2d 797 (1953). We turn then to the question, whether prudent men in the shoes of Officer Ubben would have seen enough to permit them to believe that appellant was violating or had violated the law.

To support the arrest and seizure, the Government relies upon the following circumstances: (1) the time of the arrest; (10:50 p. m.) (2) the place of the arrest; (about three and one-half blocks from the area where trucks were parked) (3) appellant’s reputation; (4) the appearance of the name “International Shoe Company” on the box; (5) the statement made by the appellant to the officer prior to his arrest. But there are other facts, equally pertinent which cannot be ignored.

To enumerate, Officer Ubben was wholly ignorant of theft from the interstate shipment and, of course, was not engaged in investigating the offense as were the officers in Henry, supra. Appellant made no attempt to flee from the officer or to escape arrest. The contents of the box did not become known to the officer until sometime after the arrest and even then he was unaware that the shoes had been stolen from an interstate shipment.

Seemingly, the colloquy between appellant and Officer Ubben, wherein appellant in response to the suggestion, “I bet you stole it,” replied, “I wouldn’t doubt it,” is regarded as supplying the final link in the chain of circumstances relied upon to establish probable cause. We are not persuaded to believe however, that the statement made by appellant is entitled to be recognized as a direct admission, so as to supply the deficiency which was obviously existing when such statement was made. The authorities lend support to this conclusion. In Brinegar v.

United States, supra, where the arrest and search were sustained, no expression whatever appears in the opinion of the majority as to the weight, if any, which was accorded to this colloquy between one of the agents and the accused; “Hello, Brinegar, how much liquor have you got in the car this time,” and the reply “not too much” or “not so much.” Also pertinent to the materiality of the statement made by appellant is United States v. One 1956 2-Door Chevrolet, 8 Cir., 275 F.2d 240 (1960).

There, after suppressing as evidence the liquor involved on the grounds of illegal search and seizure, the Court acquitted the defendants of the charge of attempting to transport intoxicating liquor from Missouri to Oklahoma (then a dry state.) The Government had also instituted forfeiture procedures under 18 U.S.C. § 3615 against the liquor and against a Chevrolet automobile which the Alcohol Tax Unit Agents had seized in connection with the liquor.

From an adverse judgment in the forfeiture case, the government appealed to this Court and one of its contentions was that the trial court 'liad improperly failed to take into account admissions made by Frank Ban-field, one of the accused parties, to the liquor agents as found in this conversation: “Q. ‘Frank, why do you stick your neck out like this ?’ “A. ‘I don’t know, I guess I don’t ;know any better.’ “Q. ‘How far do you ordinarily .go with these fellows?’ “A. ‘About two miles.’ '“Q. ‘Why don’t you let them -start from your store ?’ “A. ‘I don’t know, I don’t believe I ought to be in this business.’ ” We observed, 275 F.2d 243, that the -trial court had “recognizingly” stated: “ ‘Hardesty’s residence, and Ban-field’s statements, may create a suspicion that ultimately the liquor in question would have reached Oklahoma, but doesn’t at the time of the •search and seizure and subsequent ■arrest of Banfield and Hardesty, establish that they were then actually engaged in attempted transportation of liquor that can be declared contraband.’ ” -Our appraisal of the trial court’s finding -was: “Thus, the court regarded the conversation as not constituting or implying any such intended or direct admission in respect to the particular transportation as to be persuasive of violation, or in overall consideration to require such an appraisal of what had been done in the situation, with its lack of objective elements of seeming probability at the time.” 275 F.2d at 243. 'In affirming, we took occasion to observe: ~“we think the recent decision of the Supreme Court in Henry v.

United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, lends support to the conclusion -which he [trial judge] reached.” Further discussion is unnecessary. We cannot escape the conclusion that this is another case where an attempt is made to establish probable cause by the fruits of the search and seizure and by other after-acquired information, a practice long condemned. Henry v. United States, supra, 361 U.S. at page 98, 80 S.Ct. 168; Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Without such post-arrest information, it clearly and unmistakably appears that the arrest stemmed from mere suspicion; it was not based upon information which would warrant a reasonable prudent person in believing that appellant was violating or had violated the law. As a consequence, appellant’s motion to suppress should have been granted. Reversed and remanded. .

The information charged that Lem Pigg, Jr., had in his possession one carton containing six pairs of men’s shoes, of the value not exceeding $100.00 which had been stolen from a truck in interstate commerce and that Pigg knew at the time of his possession, that tire shoes had been stolen. . As the Government recognizes since Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) and Rios v.

United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), evidence obtained by a state officer as the result of an arrest violative of the Fourth Amendment is inadmissible in a federal prosecution. . See in addition to cases discussed in this opinion: Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mueller v.

Powell, 8 Cir., 203 F.2d 797 (1953); Hawkins v. United States, 8 Cir., 288 F.2d 537 (1961), cert. denied, 366 U.S. 975, 81 S.Ct. 1943, 6 L.Ed.2d 1264 (1961). . Standing for tlie propositions that mere suspicion is not enough: Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407 (1963); Feguer v. United States, 8 Cir., 302 F.2d 214, 245, 246, 247, 248 (1962); Cochran v. United States, 8 Cir., 291 F.2d 633, 636 (1961); Hawkins v. United States, 8 Cir., 288 F.2d 537, 540 (1961), cert. denied, 366 U.S. 975, 81 S.Ct. 1943 (1961).