United States v. Bekowies

Decision Date29 October 1970
Docket NumberNo. 25407.,25407.
Citation432 F.2d 8
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joel P. BEKOWIES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Morton A. Winkel (argued), Portland, Or., for appellant.

Wm. B. Borgeson, argued), Ass't U. S. Atty., Sidney I. Lezak, U. S. Atty., Portland, Or., for appellee.

Before CARTER, HUFSTEDLER and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge:

Joel Bekowies appeals from his conviction for harboring and concealing a federal fugitive, 18 U.S.C. § 1071, and for conspiring to do so, 18 U.S.C. § 371. Concurrent sentences were imposed. We reverse for failure of the law enforcement officers to give defendant his Miranda warnings.

The record shows that on February 14, 1969, three agents of the F.B.I. and a Portland police officer went to Bekowies' residence. They were armed with an arrest warrant for one James Nolen Davidson, wanted for violations of the Selective Service Act. Agent Hixon was assigned to cover the front of the residence "to make sure that nobody climbed out windows or doors." (R.T. 6, 7.) Agents McLeod and Kaspar, and Police Officer Boggs entered the rear of the residence and, after checking out several other apartments, entered that of Bekowies. (R.T. 30, 41, 81).

The officers identified themselves and were admitted by one Jeffrey Weil,1 who was living in the apartment with Mr. and Mrs. Bekowies, but claimed that he knew nothing about Davidson. He stated that he, Bekowies, and Mrs. Bekowies were the only persons in the apartment. Weil's conversation with the officers took about fifteen minutes. (R.T. 57-58).

During this time Bekowies was in a bedroom of the apartment, with the door closed. Agent McLeod asked Weil to request Bekowies to come into the living room. (R.T. 8-9, 57). When the latter did so, Agent McLeod apparently thought that Bekowies might be Davidson, the fugitive. He carefully compared Bekowies to a photograph of Davidson, asked Bekowies to produce his identification, and examined Bekowies for scars that Davidson was known to have. Agent McLeod then concluded that Bekowies was not Davidson. (R.T. 21-23).

At this point he advised Bekowies that there was a warrant outstanding for the arrest of Davidson, read him the provisions of the federal harboring statute, 18 U.S.C. § 1071, showed him the photograph, and asked if he knew anything of Davidson's whereabouts. Bekowies said he did not. The agents then searched the apartment, with the exception of the bedroom. Bekowies told the officers that his wife was in bed, sick with the Hong Kong flu. (R.T. 58-59).

Agent McLeod then took Bekowies to the porch of the apartment. Again he read the provisions of the federal harboring statute, and pointed out that Davidson's car was parked at the curb in front of the house. Bekowies said that Davidson had perhaps been in the apartment at a party the night before, but was not then in the apartment. (R.T. 59).

The agents had come to Bekowies' apartment reasonably certain that Davidson was hiding there.2 After his first questioning of Bekowies, Agent McLeod was "fairly well convinced that Mr. Bekowies was being quite untruthful with me." (R.T. 14). Agent Kaspar was also convinced of Davidson's presence in the apartment and, on learning that Bekowies would not allow a search of the bedroom, told Agent McLeod that, "I can't leave this room — this apartment — without searching the bedroom." (R.T. 82).

The conversation on the porch followed Agent Kaspar's talk with Agent McLeod. After Bekowies had once again denied that Davidson was in the apartment, McLeod, according to his own statement, "insisted that we needed to search the apartment. We had already — prior to going out onto the porch, we had searched everything except a bedroom, and I insisted that he allow us to search the bedroom area." (R.T. 18). Faced with Agent McLeod's insistence, Bekowies yielded, and the agents found Davidson hiding under the bed. (R.T. 18, 82).

After Davidson was arrested and handcuffed, Agent McLeod telephoned the Portland Police Department "to insure that they had nothing of a wanted nature" on Bekowies. He discovered that Bekowies had an outstanding jaywalking ticket, and Officer Boggs placed him under arrest. (R.T. 19).

Bekowies was later released on the jaywalking charge, and was not arrested on the harboring charge until four days later, on February 18. (R.T. 23). At no time prior to his second arrest was he given his Miranda warnings or otherwise advised of his constitutional rights.

Bekowies moved to suppress the statements made to Agent McLeod.3 At the hearing on the motion, Bekowies testified that although the agents were polite and courteous to him, and although none of them had ever explicitly told him he could not leave, nevertheless he felt that "as long as they had questions to ask me, I was to stay and answer them." (R.T. 45). He said he "never felt like I should leave," in view of the presence of the two or three agents in the room and the one he knew to be outside. (R.T. 46).

The District Court seems to have accepted Bekowies' testimony, stating that "apparently Bekowies thought he couldn't leave, but he had no reasonable reason." The motion to suppress was denied.

The District Court purported to apply the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as interpreted by our decision in Lowe v. United States, 407 F. 2d 1391 (9th Cir. 1969). In Miranda, as is well known, the Supreme Court held that a suspect must be warned of his constitutional rights prior to any custodial interrogation.

By custodial interrogation, the Court said, it meant "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," 384 U.S. at 444, 86 S.Ct. at 1612. The Court thus abandoned the inquiry, begun in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as to whether a criminal investigation had focused on the accused.

After Miranda, the sole question is whether, at the time of his questioning by the police, the person questioned is "in custody." Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). Custody will be found if the person questioned is effectively deprived of his freedom of movement, even though the interrogation occurs in his own home. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L. Ed.2d 311 (1969).

In Lowe v. United States, supra, Judge Carter in a carefully considered opinion held for this court that we would determine the existence of custody by applying the objective, reasonable man test earlier formulated by the California Supreme Court in People v. Arnold, 66 Cal. 2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967). Under it a suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not leave freely. Lowe, supra, 407 F.2d at 1397; cf. People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 286 N.Y. S.2d 225, 233 N.E.2d 255 (1967); Myers v. State, 3 Md.App. 534, 240 A.2d 288 (1968).

Applying our rule, we have consistently refused to find custody in the usual tax-investigation case, since those interrogated by the Internal Revenue Service are normally free to come and go as they please. United States v. Chikata, 427 F.2d 385 (9th Cir. 1970); Simon v. United States, 424 F.2d 1049 (9th Cir. 1970); Spahr v. United States, 409 F. 2d 1303 (9th Cir. 1969).

Similarly, we have held that a highway patrolman may properly stop a motorist to ask for his driver's license and registration without giving the Miranda warnings, interrogations of that kind being so commonplace that it would be unreasonable under the circumstances for a motorist to conclude he was in custody. United States v. Edwards, 421 F.2d 1346 (9th Cir. 1970); United States v. Chase, 414 F.2d 780 (9th Cir. 1969); Lowe v. United States, supra.

We have also recognized that custody is to be determined under all the facts of the case, and that "for one to be in custody, it is not required that he be in handcuffs or even that he be advised in express terms that he is under arrest." Rosario v. Territory of Guam, 391 F.2d 869 (9th Cir. 1968).

In the case presently before us, Bekowies testified that at the time of Agent McLeod's questioning, he believed that he was not allowed to leave the room. That testimony apparently having been accepted by the District Court,4 the only question for us is whether, under the objective test of Lowe,supra, Bekowies' belief was reasonable. We conclude that it was.

In reaching our conclusion, we have not been influenced by any single circumstance but by the cumulative effect of this record. We set forth below the various considerations that have led to our conclusion that Bekowies, while talking to Agent McLeod, reasonably believed himself not free to leave. But we emphasize that we do not hold — and indeed do not necessarily think — that any of the facts we refer to, standing alone, would be sufficient to demonstrate that a suspect reasonably believed he was in custody.

First, we note that the agents were armed with a warrant for the arrest of Davidson when they entered the Bekowies' apartment. When officers are looking for a fugitive, and have reason to believe he is in a specific place, at least one circuit considers such an arrest warrant to be the equivalent of a search warrant. United States v. McKinney, 379 F.2d 259 (6th Cir. 1967).5 And it has been held that a suspect whose home is being searched pursuant to a warrant is in custody for Miranda purposes. People v. Wilson, 268 Cal.App. 2d 581, 74 Cal.Rptr. 131 (1968).

Second, Agent McLeod at first thought that Bekowies was Davidson. While McLeod's belief persisted, Bekowies had of course ample reason to expect that McLeod...

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