Hastie and Gibbons, Circuit Judges, and Becker, District Judge.
EDWARD R. BECKER, District Judge.
This is a bank robbery case. On February 10, 1966, defendants, Miles, Kirby, and Vaughn, were indicted under 18 U.S.C. § 2113(a) and (d), and on September 8, 1966, verdicts of guilty were returned against each of them by a jury in the District Court for the Western District of Pennsylvania. All defendants appealed those convictions and were awarded new trials.*fn1 At the beginning of the (joint) second trial, defendants Miles and Vaughn entered pleas of guilty to both counts of the indictment and the trial proceeded only against the present appellant, George Kirby ("Kirby"). Kirby was again found guilty by a jury and this appeal followed.
Kirby's request for relief is predicated on the contentions that: First, the search and seizure of certain evidence which played a substantial role in his conviction was not incidental to a lawful arrest and cannot be justified on any other grounds; Second, the defendant was deprived of his Fifth Amendment rights by the court's charge to the jury that the unexplained possession of recently stolen property raises an inference of guilt; Third, the trial court erred in receiving the testimony of Pittsburgh Police Sergeant Tercsak regarding Kirby's alleged flight; and Fourth, the evidence was insufficient as a matter of law to sustain the conviction. For the reasons set forth below, we affirm.
II. THE RELEVANT FACTS AND THE COURT'S PRIOR OPINION
The basic facts, as they appear of record in the trial transcript and in the transcript of the motion to suppress evidence heard before the first trial, may be summarized as follows. At approximately 2:00 p.m. on October 27, 1965, the Eureka Savings and Loan Association, located in the Oakland section of Pittsburgh, was robbed at gunpoint by two Negro males wearing raincoats and hats. As the robbers exited the bank with $11,006, the bank comptroller, Mr. Braun, followed them to an alleyway which opened onto Fifth Avenue. At about that time, one Mr. Obritz, who was waiting in his car for a traffic light on Fifth Avenue, noticed two Negro males hurry out of this alleyway, cross Fifth Avenue and jump into a Pontiac convertible parked next to him in the curb lane. The Pontiac, driven by a third individual, then "zoomed" down Fifth Avenue in front of Mr. Obritz, who thereupon noted on an old tissue box, the license number and a description of the car. Further investigation revealed that the Pontiac was owned by the defendant Vaughn and that defendants Vaughn and Miles and an unidentified Negro male had been seen together by Pittsburgh Police Inspector Moore in and out of the car about 1 1/2 hours before the robbery. Responding to a police broadcast, two police patrolmen located and recovered the Vaughn vehicle at about 7:00 p.m. of the day of the robbery. An immediate examination of the car revealed several latent fingerprints which were soon identified as those of Miles and Kirby. One of the tellers identified Miles as one of the robbers. Although there were no positive identifications of Kirby, he fit the general description of the other robber given by several tellers and he also matched the general description of the unidentified man seen with Miles and Vaughn 1 1/2 hours before the robbery.
On the basis of the facts just recited surrounding the robbery, on November 4, 1965, Sergeant Tercsak, Chief of the Robbery Division of the Pittsburgh Police, sent Detective Giorgianni to a city magistrate to procure an arrest warrant for Kirby.*fn2 Giorgianni told the magistrate nothing more than that he desired a warrant for Kirby for armed robbery of the Eureka Savings and Loan, and the magistrate issued it. On November 5, Sgt. Tercsak sent a teletype to New York City requesting that the local police look for Miles and Kirby at several addresses that had been furnished to the Pittsburgh police. On November 6, the New York police informed Sgt. Tercsak that they had been unable to locate the suspects. On November 7, Sgt. Tercsak again sent Detective Giorgianni to procure arrest warrants for both Miles and Kirby in order to initiate grand jury proceedings. While it is not clear whether Detective Giorgianni was under oath, it is clear (and indeed critical) that on this occasion he did relate to the magistrate the facts on which the police relied, i.e., the fingerprints of Miles and Kirby were found in the suspected getaway car, the identification by victims, that Miles and a person resembling Kirby were seen together about 1 1/2 hours before the robbery by other detectives, and that the police had information that they had fled to New York under assumed names (see discussion infra). Thereupon, the magistrate issued warrants for both Miles and Kirby. On November 9, the Pittsburgh police came into contact with a girlfriend of Kirby who informed them that Kirby was staying in Room 1255 of the Chesterfield Hotel in New York, possibly under an assumed name. At about 4:00 p.m. on that afternoon, Sgt. Tercsak telephoned the New York City Police Correspondence Unit and relayed the additional information obtained from Kirby's girlfriend.
This November 9th message was communicated by the Correspondence Unit to New York City Police Detective Daly*fn3 who thereupon proceeded to the Chesterfield Hotel and ascertained that room 1255 was registered to a Mr. and Mrs. Milo Jackson. During a warrantless search of the room, Detective Daly found suitcases with the names Miles and Kirby on them and certain weapons and drug paraphernalia.*fn4 At the conclusion of several hours of surveillance during which New York was "blacked-out" by a massive power failure, Detective Daly and other officers went to dinner and to procure flashlights. Upon returning to the hotel around 9:30 p.m., they were joined by still another officer who stated that the station had just received a call from the hotel that the occupants of room 1255 were in the lobby. As the police entered, they recognized Miles and Kirby from the descriptions that had been provided to them and apprehended them. They were taken to a stairwell and subjected to a weapons frisk. Money, including "bait money" from the Eureka Savings & Loan which had been taken at the time of the robbery, was removed from Kirby but immediately replaced when it was determined that it was not a weapon. Following a search of the room, Miles and Kirby were taken to the stationhouse, where a more thorough search of the defendants was made than could be properly conducted at the hotel because of the continuing power failure (lasting until about 6:00 a.m. the next morning). All their belongings were impounded and subsequently turned over to the Pittsburgh authorities, although the "bait money" was not recognized as such until the money was checked in Pittsburgh.
As we have noted above, prior to the first trial the defendants moved to suppress the bait money as evidence. The motion was denied, and the money was introduced into evidence by the Government. Following the convictions, the denial of the motion to suppress was assigned as error both on the trial court and on appeal. The grounds asserted were that the arrests were unlawful because the warrants were defective and that, even if the arrests were lawful, the seizure was not incident thereto.
On (the first) appeal, Judge Seitz, speaking for the Court, approached the arrest issue by stating:
"Unquestionably, a police officer in one jurisdiction may arrest without a warrant a fugitive from another jurisdiction so long as the arresting officer has probable cause to make the arrest and the arrest is lawfully effected in the jurisdiction where it is made." (citation omitted). United States v. Miles et al., 413 F.2d 34, 40 (3d Cir. 1969). See also, United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948).
Judge Seitz found that a warrantless arrest for an out-of-state felony is permissible under New York law if based on probable cause. On the issue of whether or not probable cause existed, Judge Seitz noted that the appellants including Kirby did not argue that the information transmitted to the New York police was not sufficient ...