United States v. Diaz

• Citation: 427 F.2d 636
• Decision Date: 08 June 1970
• Docket Number: No. 7505.,7505.
• Parties: UNITED STATES of America, Appellee, v. Michael Angelo DIAZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

427 F.2d 636 (1970)

UNITED STATES of America, Appellee, v. Michael Angelo DIAZ, Defendant, Appellant.

No. 7505.

United States Court of Appeals, First Circuit.

Heard April 6, 1970.

Decided June 8, 1970.

Robert Upton, II and Charles G. Douglas, III, Manchester, N. H., by appointment of the Court, for appellant.

William B. Cullimore, Asst. U. S. Atty., with whom David A. Brock, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, COFFIN, Circuit Judge, and FORD, District Judge.

COFFIN, Circuit Judge.

Shortly before midnight on July 3, 1969, Sergeant Foisy of the New Hampshire State Police, on routine patrol through the town of West Ossipee with another patrolman, observed defendant Michael Diaz hitchhiking by the side of the road, a misdemeanor under New Hampshire law. N.H.R.S.A. 262-A:38. The officers stopped their car, called defendant over, and, after inquiring of his destination, Sergeant Foisy asked defendant for some identification. After defendant produced a Social Security card and a New York birth certificate — neither of which contain a recent description of the named person or his current address — Sergeant Foisy asked to see his draft card. Defendant replied that he had sent it to Florida for a change of address. Defendant was then arrested for the hitchhiking violation and taken to the Carroll County Jail. Sometime later, defendant apparently admitted orally that he had no draft card and had never registered for the draft.

On July 9, Sergeant Foisy and another State Trooper took defendant to the local draft board in Center Ossipee, to give him an opportunity to register for the draft. When defendant refused, he was informed by the board secretary of the consequences of his refusal and eventually asked for an explanation of his objections to registration. He made a short written statement, followed a few days later by a longer letter. Soon thereafter, defendant was arrested and indicted for failure to register for the draft and for failure to have a draft card in his possession.

It is undisputed that defendant was not given any Miranda warnings either before being asked to show his draft card or at the local draft board. At his non-jury trial, replies from all 56 of the State and Territorial Selective Service Headquarters — each indicating that defendant had not registered within its jurisdiction — were introduced into evidence, as well as defendant's first written statement and the testimony of the local board secretary. On this evidence, defendant was convicted for failure to register for the draft, the lesser "lack of possession" charge having been dismissed during trial. Defendant brings this appeal.

Defendant contends initially that his arrest for the hitchhiking violation was simply a pretext for interrogation concerning possible Selective Service violations, making inadmissible all of the evidence attributable to such unlawful arrest, Wong Sun v. United States, 371 U.S. 471, 485-486, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). However, defendant never presented this objection to the district court during the proceeding below, as required by Rule 51, F.R.Crim.P. E. g., United States v. Gilchrist, 347 F.2d 715 (2d Cir. 1965); United States v. Frazier, 385 F.2d 901, 904 (6th Cir. 1967). As far as Rule 52(b) is concerned, it was certainly not "plain error" for the district court in this case to admit the evidence of the ensuing events without first sua sponte considering the legality of the arrest. When the officers stopped defendant for the hitchhiking violation, they had no reason to suspect that he was guilty of any other offense. Compare State of Oregon v. Williams, 248 Or. 85, 432 P.2d 679 (Or.1967). Moreover, there was no suggestion of a working relationship between the local and federal officers which might vitiate the arrest. See United States v. Frazier, supra, 385 F.2d at 904. In these circumstances defendant may not raise on appeal an objection which was not presented to the district court.

Defendant's second contention is that Sergeant Foisy was required to warn him of his constitutional rights before asking to see his draft card, since lack of possession thereof is itself unlawful. 50 U.S.C. App. § 462 (Supp. IV 1968); 32 C.F.R. § 1617.1 (1969). We agree that there are circumstances in which an officer must advise a person of his constitutional rights before inquiring into his compliance with the Selective Service laws. See text infra. However, whether or not defendant had been formally arrested at the time Sergeant Foisy asked to see his draft card, it is clear that the question was asked simply as a means of establishing identification, which had not been sufficiently established by defendant's birth certificate or Social Security card. Compare United States v. Nowling, 25 CMR 362 (1958). It was only when defendant claimed to have sent his card to Florida that Sergeant Foisy began to suspect a violation. We conclude that Miranda warnings need not be given when the sole purpose of the on-the-scene questioning is a good faith attempt to determine the identity of a person whom the police have reason to question. See Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476, 478-479 (1968), supplemented in 131 U.S.App.D.C. 358, 404 F.2d 1335 (1968); United States v. Gibson, 392 F. 2d 373 (4th Cir. 1968); Sciberras v. United States, 380 F.2d 732, 734 (10th Cir. 1967).

Defendant's third objection is that the failure to advise him of his constitutional rights when he was taken to the local draft board in Center Ossipee on July 9 renders inadmissible both his written statement made at that time and the testimony of the board secretary concerning his refusal to register. We agree. At that point he had obviously told the officers of his refusal to register, he was the focus of their attention because of that refusal, and he was in their custody and under arrest (for the hitchhiking violation) throughout his conversation with the board secretary. These circumstances seem to us to bring defendant within the holding that

"when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning,"

the authorities are required to advise him of his constitutional rights; failure to do so prevents the fruits of such questioning from being used against the individual. Miranda v. Arizona, 384 U.S. 436, 444, 478-479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

The government directs our attention to a number of cases holding that Miranda warnings or related protections need not be given to a person appearing before a draft board with regard to registration or classification.¹ We do not question either that general proposition or the government's contention that the board secretary is not a law enforcement officer. However, the timing and necessity of Miranda warnings does not depend simply on who actually does the questioning or where the questioning takes place. In none of the cases cited to us was the defendant brought to the draft board under arrest,² in police custody, and, as a suspected draft evader, questioned about his refusal to register with the draft as the law requires. The remote possibility that defendant's...