9 F. 3d 118 - United States v. Terns

In the first count of a two-count indictment, Leonard James Ternes was charged with taking by force, violence and intimidation $9,632 in currency from employees of the Bank of the Lakes, Bernice, Oklahoma, a federally insured bank, and that in committing the offense he assaulted and put in jeopardy the life of another person by the use of a firearm, in violation of 18 U.S.C. 2113(a) and 2113(d). In a second count, Ternes was charged with using and carrying a firearm during and in relation to a crime of violence for which he could be prosecuted in a court of the United States, in violation of 18 U.S.C. 924(c). A jury convicted Ternes on both counts and he was sentenced under count 1 to imprisonment for 78 months, and to a consecutive term of 60 months on count 2. He was also sentenced to a term of supervised release of 5 years on count 1, and a concurrent 3-year term of supervised release on count 2.

Prior to trial, Ternes filed a motion to suppress the use at trial of certain evidence, which motion, after hearing, was denied. The same motion was renewed just before trial and again denied.

On appeal, the only issue raised is whether the district court erred in denying Ternes' motion to suppress. Specifically, counsel argues that the initial stop of Ternes was unlawful and tainted all that followed, including the in-court identification of Ternes as the robber by two bank tellers, as well as his statements to the investigating officers. He also argues that the in-court identification of him as the robber by the two bank tellers was the result of improper and unduly suggestive conduct by the police. Finally, he argues that the statement he gave the police was in violation of his Sixth Amendment rights and that although the statement itself was not presented to the jury, the statement did lead the police to other evidence which was before the jury. Our study of the record leads us to conclude that the district court did not commit reversible error when it denied Ternes' motion to suppress.

On February 28, 1992, at about 1:10 p.m., two employees of the Bank of the Lakes in Bernice, Oklahoma were held up by an unmasked robber who escaped with $9,632 in currency.2 The robber displayed a loaded revolver. A short time after the robbery and a short distance from the bank, Rick White, a deputy sheriff, stopped a vehicle being driven by Ternes' wife in which Ternes was a passenger. White recognized Ternes from a contact he had with him a few days before.3 White told Ternes that the bank at Bernice had just been held up and that he matched the description of the robber given to the police by the victims. Ternes denied he was the perpetrator and said he wanted to be "cooperative" with the police. To establish his own innocence, Ternes consented to the police making a videotape of him which was thereafter shown the victims. However, Ternes' desire to "cooperate" backfired. The victims identified the videotape as portraying the robber. Additionally, Ternes agreed to go to the scene of the crime where he was again identified by the victims as being their assailant.

Ternes' initial argument is that the motion to suppress should have been granted, because Rick White's stopping of the vehicle driven by his wife and in which he was a passenger was unlawful and tainted everything that happened thereafter. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). We do not agree. Our study of the record convinces us that Rick White had a "reasonable suspicion" which permitted a temporary detention and questioning of Ternes. Terry v. Ohio, 392 U.S. 1, 2 (1968); United States v. Henning, 906 F.2d 1392, 1395 (10th Cir.1990). Rick White knew that the bank had just been robbed and he felt that the description of the robber as given by the victims fit Ternes. And, importantly, White was acquainted with Ternes. As indicated, a few days prior to the robbery, White had investigated a citizen's complaint that Ternes and his two stepsons had been shooting. Further, White noticed two cars at the scene of the grandparents' residence, one of which fit a description of the car driven by the robber. All things considered, the initial stop was not unlawful. And it should be remembered that, according to the arresting officers, Ternes' immediate response was that he had done no wrong and wanted to "cooperate" and consented to the videotape and later agreed to accompany the officers to the bank, where, as mentioned, he was identified by the bank tellers as being the robber.

Ternes also argues that the in-court identification of him as being the bank robber by the two bank tellers was prompted by improper and suggestive conduct by the police. In this regard, he complains about the videotape taken of him by the police and shown the bank tellers. Again, it should be remembered that Ternes consented to the videotaping and apparently thought such would exonerate him. In so doing, he took a risk and simply lost. At trial, the two bank tellers identified Ternes as the robber.

Finally, Ternes argues that certain statements he later gave the police led them to evidence which was introduced at trial. As indicated, the government attorney, no doubt out of an abundance of caution, did not offer Ternes' statements at trial. There was a wig and a revolver which were introduced at trial, but as we understand it, the wig and revolver were discovered by Donny Reed, Ternes' stepson, and were not the result of any statement given the police by Ternes.4 Ternes did direct the police to the money which was taken in the robbery. However, the government at trial did not introduce this money into evidence. The wig and revolver, however, were not found where the money was found and were only discovered by Donny Reed and his stepbrother after a further search. The wig and revolver, which had been buried, were then turned over to the police.

Judgment affirmed.