Lowe v. United States

• Decision Date: 25 February 1969
• Docket Number: No. 22044.,22044.
• Citation: 407 F.2d 1391
• Parties: Arnold LOWE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

407 F.2d 1391 (1969)

Arnold LOWE, Appellant, v. UNITED STATES of America, Appellee.

No. 22044.

United States Court of Appeals Ninth Circuit.

February 25, 1969.

Robert B. Morrill (argued), San Francisco, Cal., for appellant.

Morton Sitver (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Phoenix, Ariz., for appellee.

Before ELY and CARTER, Circuit Judges and PECKHAM^*, District Judge.

JAMES M. CARTER, Circuit Judge:

Appellant was convicted of a violation of the Dyer Act and appeals.

THE QUESTION

The appellant contends that unconstitutionally obtained statements made by him, were used against him at his trial. There is no disagreement as to the facts surrounding the questioning of the appellant by an Arizona Deputy Sheriff; the four-fold warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) were not given. Therefore, the questions for this court to determine are: (1) whether appellant was in "custody or otherwise deprived of his freedom of action in any significant way," as defined by Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, and (2) were the warnings required under the facts of this case.

FACTS

At approximately 8:00 o'clock in the evening of February 6, 1967, Russell Dunham, Deputy Sheriff of Yavapai County, Arizona, stopped a 1965 Dodge Monaco with Ohio license. The auto had been travelling west on Route 66 in an erratic manner. Appellant Lowe, the driver, and one passenger were in the auto when Deputy Dunham approached and began his inquiry.

The officer first asked that appellant present his driver's license and vehicle registration. Appellant produced neither but did present his Social Security card for identification. Deputy Dunham then asked appellant a series of questions concerning appellant and the car. Deputy Dunham asked the appellant to identify the owner of the auto. Appellant replied that it belonged to a distributor in Ohio for whom he worked and for whom he was selling merchandise which was in the car.

Deputy Dunham then asked the name of the employer. Appellant answered that he couldn't remember. The deputy then asked appellant if he had permission to drive the car. Appellant replied in the affirmative. Deputy Dunham then asked appellant where he was going and whether he had any money. To this appellant answered that he was without funds and was going to California to look for work. No more questions were put to the appellant by Deputy Dunham.

Appellant was not told that he was under arrest before or during his questioning, but Deputy Dunham was permitted to testify that he intended to keep the appellant where he was. However, there is nothing in the record that indicates Deputy Dunham told the appellant anything in regard to his freedom to leave the scene.

Arizona Highway Patrolman Melvin Risch then arrived on the scene. Appellant was subsequently incarcerated and questioned by Agent T. Michael Seikel, Jr., of the Federal Bureau of Investigation. The statements made to Agent Seikel were suppressed by the trial court. A motion to suppress the statements made to Deputy Dunham was denied after hearing, and the statements were admitted against the appellant at trial. This is the claimed error.

DISCUSSION

(1) On the Scene Questioning.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), states:

"Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (p. 444, 86 S.Ct. p. 1612).

At the same place in the opinion the Court also clarified the meaning of "focus of the investigation" as used in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In a footnote the Court stated that "focus" is defined in the same manner as custodial interrogation, as set forth above. Id. at 444 n. 4, 86 S.Ct. 1602.

Miranda also stated:

"Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977. * * * General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present." (Id. p. 477-478, 86 S.Ct. p. 1629. Emphasis added).

At a later point in the opinion, the Court further emphasized that "traditional investigatory functions" carried on by law enforcement were not meant to be affected by the decision.

"In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions." 384 U.S. at 481, 86 S.Ct. at 1631.

Therefore, while persons suspected of crimes were given greater protection from the coercive pressures of police in-custody questioning,¹ the Court in Miranda did not intend to abolish the accepted police practice of making general on the scene inquiries of citizens to determine whether a crime has been committed or is in progress. See Kamisar, Custodial Interrogation Within the Meaning of Miranda, in Criminal Law and the Constitution — Sources and Commentaries, 341 (Mich. Inst. of Continuing Legal Educ. 1968).

The questioning of a driver of a stopped car on an open highway by one policeman, without more, cannot be characterized as a "police dominated" situation or as "incommunicado" in nature. In point are Wilson v. Porter, 361 F.2d 412, 415 (9 Cir. 1966); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476, 479 (1968); Schnepp v. State, 437 P.2d 84, 85 (Nev.Sup.Ct.1968). See United States v. Thomas, 396 F.2d 310 (2 Cir. 1968); and United States v. Gibson, 392 F.2d 373 (4 Cir. 1968), discussed later herein.²

In Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) the Supreme Court considered the on-the-street confrontations of police and citizens. Even though the majority opinion concerns the right of the officer to "stop and frisk," it is difficult to conceive how a policeman is to avail himself of the protections outlined in Terry v. Ohio, unless he is able to ask questions of the person he has stopped.

The questions asked by Deputy Dunham at the shoulder of Route 66 in the presence of a passenger certainly did not create a "compelling atmosphere". When a law enforcement officer stops a car and asks the driver for identification, a vehicle registration slip, and upon receiving unsatisfactory answers further asks the driver's destination and business, no "in-custody" interrogation, as discussed in Miranda, takes place. This general on the scene questioning is a well accepted police practice; it is difficult to imagine the police warning every person they encounter of his Miranda rights. This is why the opinion in Miranda expressly excluded "on-the-scene questioning" from the warning requirements. The statements made by appellant Lowe were a product of "general on-the-scene questioning" which is not subject to the warning requirements of Miranda. See Kamisar, supra, at 342-43.

(2) Permissible Scope of On-The-Scene Questioning.

We must consider the permissible range of inquiries that can be made in "on-the-scene questioning."

This Circuit held in Arnold v. United States, 382 F.2d 4 (9 Cir. 1967), that questions which relate directly to a suspected crime after the officer's suspicion has been aroused, may be permissible as on-the-scene inquiries. After the defendant in the case had been pointed out by a manager from a bank which had just been robbed, a police officer at the scene ordered the man to step away from the crowd. He further ordered him to remove his hands from his pockets. The officer then asked him what he was doing in the bank which had just been robbed. The answer was held admissible in the subsequent trial, and not barred by the decision of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, supra.

"Appellant was a member of the crowd, unknown and free to depart at will. The officer had no choice but to accost him. Asking appellant to remove his hands from his pockets and to step away from the crowd were measures dictated by minimal prudence for the offense commonly involves the use of weapons. The action also minimized the embarrassment and indignity to which appellant might be exposed. No force was used. The questions asked were limited to inviting an exculpatory explanation of appellant\'s presence at the scene of the crime.

In light of these circumstances, we think the detention was reasonable and therefore appellant\'s answers to Officer Crawford\'s questions were properly admitted in evidence." 382 F.2d at 7.

In Allen v. United States, 129 U.S. App.D.C. 61, 390 F.2d 476 (1968) (a car stop case) the officer asked the driver to produce his...