United States v. Roland Lee Stout, 434 F.2d 1264, 10th Cir. (1970)

434 F.
2d 1264
UNITED STATES of America, Plaintiff-Appellee,

v.
Roland Lee STOUT, Defendant-Appellant.
No. 240-70.
United States Court of Appeals, Tenth Circuit.

Dec. 9, 1970.
Richard J. Spelts, Asst. U.S. Atty. (James L. Treece, U.S. Atty., on the
brief), for plaintiff-appellee.
Sheldon E. Friedman, Denver, Colo., for defendant-appellant.
Before LEWIS, Chief Judge, and PHILLIPS and JOHNSON,* Circuit
judges.
ORIE L. PHILLIPS, Circuit Judge.
Stout and a codefendant, Jerry F. Revis, were charged in a three-count

information with violations of 18 U.S.C. 641. The first count charged them
with concealing in a 1962 Oldsmobile postal money orders, property of the
United States of a value in excess of $100, and with retaining such money
orders with intent to convert them to their own use.
The second count charged them with concealing United States postage stamps
and savings stamps, property of the United States of a value in excess of $100,
with intent to convert them to their own use.
The third count charged them with retaining stolen United States postal money
orders of an aggregate value in excess of $100, with intent to convert them to
their own use.
Stout was acquitted on Count III. He was convicted and sentenced on Counts I
and II and has appealed.
His motion to suppress evidence of property discovered and seized in two

searches of a 1962 Oldsmobile was denied, and such evidence was admitted at
the trial.
A motion to suppress evidence of property discovered in the search of a motel

room was denied, and such evidence admitted in support of Count III.
Counsel for Stout stated in his brief that the issue presented for review is the
ruling of the trial court denying the motion to suppress the evidence of the
property found and seized in the two searches of the Oldsmobile. Hence, we
will consider only the validity of those searches.
On the night of September 4, 1969, the United States Post Office at Timewell,
Illinois, was forcefully entered and certain United States money orders, postage
stamps, savings stamps, a validating stamp of the Timewell Post Office, one
dating stamp, a box of rubber dates and a rubber stamp pad were stolen
therefrom.
Gerald F. Burgess, a postal inspector, was informed by John W. Neff, also a

postal inspector, that a stolen money order had been cashed in downtown
Colorado Springs by a female using the name Rose Ann Rose and an Illinois
driver's license. She was described as a brunette, five feet two inches tall,
weighing 124 pounds, and wearing brown bell bottom pants and white tennis
shoes. Thereupon, Burgess, accompanied by Neff, proceeded to the downtown
area of Colorado Springs. Burgess observed a 1962 Oldsmobile bearing Illinois
license plates, occupied by three males and one female. He thought the female
was the person whose description had been given him by Neff. He proceeded to
follow the Oldsmobile until it was parked. As the occupants alighted
therefrom, he then had a clear view of the female and was sure she was the
person who had cashed the stolen money order.
10
The occupants of the Oldsmobile were Rose Ann Rose, Walter Rife, Jerry F.
Revis and Jerry L. Gleghorn. They entered a bar about one block from the
parked Oldsmobile. Burgess went to the Post Office, which was about a block
away, and with binoculars observed them in the bar for about five minutes. He
then went back down the street and stood at the corner of the bar for about 30
minutes. A shoe salesman who had cashed one of the money orders joined him.
He showed Burgess the money order he had cashed and Burgess knew it was
irregular and not a valid money order. They entered the bar to see if the
salesman could identify the person for whom he had cashed the money order,
but Rose Ann Rose had left the bar. Burgess saw Rose Ann Rose in a store
attempting to cash money orders.

11
Burgess was dressed in plain civilian clothes. While he was standing in front of
the bar, Gleghorn walked past him and Burgess noticed a portion of a money
order protecting from one of Gleghorn's pants pockets.
12
Burgess crossed the street and entered a police car in which two Colorado
Springs policemen and Neff were seated.
13
Gleghorn came out of the bar and walked toward the Oldsmobile. Rife then
came out of the bar and proceeded in the same direction. Shortly thereafter,
Rose Ann Rose and Jerry Revis came out of the bar and proceeded toward the
parked automobile. All four of them entered the Oldsmobile. When they had all
entered the Oldsmobile, Burgess proceeded in the police car to the side of the
Oldsmobile, identified himself to them as a postal inspector, placed them under
arrest, and put them in the police car. Burgess immediately seized the
Oldsmobile and made a partial search thereof. Under the floor mat he found a
money order made out in the name of Jerry Gleghorn. Under the front seat he
found a brochure of Seven Falls, with two money orders on the inside. Under
the back seat he found a cardboard box containing 158 books of United States
postage stamps. He also found in the automobile several shopping bags filled
with merchandise, one from Sally's Shoe Store, and a letter addressed to Roland
Stout.
14
The seized automobile was driven to the city jail garage and there stored, and
the arrested persons were taken to the city jail in the police car.
15
On September 23, 1969, a search warrant to search the Oldsmobile was

obtained and a further search was made. The Oldsmobile was still retained in
custody in the city jail garage and had been since its seizure. In the second
search Burgess removed the door panels. He found a box containing partially
filled out money orders, numbered 8,557, 762,217 through 249, and
8,561,262,850 through 949, except No. 892, plus a Timewell, Illinois,
validating stamp, rubber dating stamps for changing the date of issuance and a
stamp pad.
16
An imprint of the validating stamp, a dating stamp showing the date purchased,
and an entry of the amount of the money order and the initials of the clerk
issuing it are necessary to the validity and negotiability of a money order.
17
Rose Ann Rose and Gleghorn testified as witnesses for the United States at the
trial of Stout and Revis.

18
For reasons we shall hereafter state, we will not consider the contention of
counsel for Stout in his brief that the first search was not valid as a search made
incident to a lawful arrest, and that the affidavit on which the search warrant
was issued for the second search and under which the second search was made
was not sufficient to support the issuance of the search warrant. By so doing,
we do not imply that we agree with either of such contentions.
19
49 U.S.C.A. 781 in part here material reads:
20
'(a) It shall be unlawful (1) to transport, carry, or convey any contraband article
in, upon, or by means of any * * * vehicle, * * * (2) to conceal or possess any
contraband article in or upon any * * * vehicle, * * * or upon the person of
anyone in or upon any * * * vehicle, * * * or (3) to use any * * * vehicle, * * *
to facilitate the transportation, carriage, conveyance, concealment, receipt,
possession, * * * of any contraband article.
21
(b) As used in this section, the term 'contraband article' means-- '(3) Any falsely
made, forged, altered, * * * obligation * * * or any material or apparatus, * * *
fitted or intended to be used, or which shall have been used, in the making of
any such falsely made, forged, altered, * * * obligation * * *.'
22
Burgess knew at the time he seized the automobile and searched it that the
money orders which Rose Ann Rose had endeavored to cash in the store and
the money order which he saw in Gleghorn's hip pocket had been transported in
the Oldsmobile. He had also seen the money order cashed by the shoe
salesman, and he knew that it had not been validly issued, and that they had
been unlawfully imprinted by a validating stamp. He had reasonable cause to
believe that the persons arrested had the other stolen money orders and the
validating stamp, and that they were in the Oldsmobile.
23
The postal money orders which Rose Ann Rose had attempted to cash and the
money order in Gleghorn's hip pocket were materials fitted to be used by filling
in the amount, imprinting them with the validating stamp, and stamping the
date of issue thereon, in falsely making a forged and altered obligation of the
United States, and were contraband articles within the meaning of 781(b) (3),
supra.1 Hence, Burgess, as postal inspector, had a right to seize the Oldsmobile,
take it into custody, and search it without a warrant.
24
Since the money orders were contraband, the postal inspectors had a right to
seize the automobile, to take and hold it in custody, and to search it without a
warrant;2 and the postal inspectors had the right to take the contraband seized
and put it where it could be safely kept as evidence for a forfeiture proceeding
or any other proceeding where it was material and relevant.3
25
Accordingly, we conclude that the two searches of the Oldsmobile were valid,
and that the evidence found in the Oldsmobile by the postal inspector was
admissible in evidence against Stout.
26
Affirmed.
Of the Eighth Circuit, sitting by designation
Lockett v. United States, 9 Cir., 390 F.2d 168, 171, cert. den. 393 U.S. 877, 89
S.Ct. 175, 21 L.Ed.2d 149
United States v. McKinnon, 5 Cir., 426 F.2d 845, 850; United States v.
Francolino, 2 Cir., 367 F.2d 1013, 1018; United States v. Troiano, 3 Cir., 365
F.2d 416, 418; Sirimarco v. United States, 10 Cir., 315 F.2d 699, 701
United States v. McKinnon, 5 Cir., 426 F.2d 845, 849

United States v. Roland Lee Stout, 434 F.2d 1264, 10th Cir. (1970)

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United States v. Roland Lee Stout, 434 F.2d 1264, 10th Cir. (1970)

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434 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

Stout and a codefendant, Jerry F. Revis, were charged in a three-count

His motion to suppress evidence of property discovered and seized in two

A motion to suppress evidence of property discovered in the search of a motel

Gerald F. Burgess, a postal inspector, was informed by John W. Neff, also a

attempting to cash money orders.

On September 23, 1969, a search warrant to search the Oldsmobile was

trial of Stout and Revis.

49 U.S.C.A. 781 in part here material reads:

Of the Eighth Circuit, sitting by designation

United States v. McKinnon, 5 Cir., 426 F.2d 845, 849

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