United States v. Bridges

• Decision Date: 12 June 1974
• Docket Number: No. 73-1796.,73-1796.
• Citation: 499 F.2d 179
• Parties: UNITED STATES of America, Appellee, v. Amos Lane BRIDGES, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

499 F.2d 179 (1974)

UNITED STATES of America, Appellee, v. Amos Lane BRIDGES, Appellant.

No. 73-1796.

United States Court of Appeals, Seventh Circuit.

Argued January 24, 1974.

Decided June 12, 1974.

Rehearing Denied July 8, 1974.

COPYRIGHT MATERIAL OMITTED

Norman S. London and Lawrence J. Fleming, St. Louis, Mo., for appellant.

Henry A. Schwarz, U. S. Atty., and William C. Evers, III, Asst. U. S. Atty., E. St. Louis, Ill., for appellee.

Before KILEY, Senior Circuit Judge, CUMMINGS, Circuit Judge, and HOFFMAN, Senior District Judge.^*

KILEY, Senior Circuit Judge.

Defendant Bridges was convicted, by a jury, of unlawfully possessing and using an unregistered dynamite bomb to damage a building, in violation of 26 U. S.C. § 5861(c) and (d) and 18 U.S.C. § 844(i).¹ We reverse the conviction and remand for a new trial.

We recite the evidence in the light most favorable to the government. At approximately 9:30 p. m. on April 8, 1972, a building used by the Teamsters Union, of which Bridges was a member, was bombed in East St. Louis, Illinois. There had been a controversy between Bridges and the Union over non-payment of dues and a telephone bill, resulting in his suspension from the Union. Bridges had threatened to "thump" the head of one Union official over the issue of the dues. A half hour before the bombing, two men were observed next to the building near a car that resembled Bridges'. Dynamite particles were found in the blast debris, and dynamite components were found in the swabs taken of Bridges' hands and the debris collected from the trunk of his car and the vacuum cleaner in his house.

I.

At the close of the government's case, the court denied Bridges' motion for acquittal. We find no error in that ruling. The evidence recited above was prima facie sufficient to justify an inference of guilt.

II.

Bridges contends that the court committed reversible error in denying his motion for mistrial after a government witness testified that Bridges refused to answer a question concerning his recent handling of explosives.

Bridges learned that he was a suspect in the case and surrendered himself, on the advice of counsel, on April 11, 1972 at a local police station. Federal agents arrived and, after reciting the Miranda warnings, interrogated him.

At the trial the prosecutor asked one of the agents:

Q. What questions did you ask of him and what answers did he give you?

A. I asked him if he handled any explosives. He declined to answer.²

The court sustained a motion by Bridges' counsel to strike, and instructed the jury to disregard the answer, but denied his motion for a mistrial. The prosecutor thereafter asked the agent:

Q. Did you ask Mr. Bridges if he had handled any explosives recently?

A. Yes, sir.

Q. And what did he tell you when you asked that question?

A. He declined to answer.³

Again the court denied a motion for a mistrial and repeated the first ruling. Subsequently the prosecutor asked another agent:

Q. Was Mr. Bridges asked if he had handled any explosive materials recently?

A. Yes.

Q. What did he reply?

A. He declined to answer.⁴

The court for the third time denied a motion by Bridges' counsel for a mistrial.

We hold that the court's denial of the motions for mistrial was constitutional error because the agents' testimony violated Bridges' Fifth Amendment right against self-incrimination and compels reversal of his conviction.

In recent opinions⁵ we have expressed a concern over conduct of overzealous prosecutors. We shall presume in fairness that the prosecutor did not anticipate the agent's answer to the first question. But we cannot indulge that presumption with respect to the prosecutor's second and third series of questions which specifically elicited the prejudicial answers given to the first question. The prosecutor should have known that Bridges had the right not to answer, yet deliberately disregarded that right. In fact, he apparently claimed that he was entitled to disregard Bridges' rights.⁶

In Kroslack v. United States, 7 Cir., 426 F.2d 1129, 1130-1131 (1970), this court responded to a similar, though less serious, violation, stating:

It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. Baker v. United States, 5th Cir., 357 F.2d 11 (1966). . . . We find little difference between the prejudice resulting from the testimony admitted in the case before us, and a prosecutor\'s comment before a jury on a defendant\'s exercise of his constitutional right not to take the witness stand. Such comments have been held to be reversible error. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The testimony elicited here could well have led the jury to infer guilt from defendant\'s refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty. Id. at 614, 85 S.Ct. 1229. (Footnote omitted.)

III.

Following Bridges' refusal to answer the questions concerning his handling of explosives at the April 11, 1972 interrogation, the federal agents swabbed his hands. On the basis of the chemical analysis of the swabs, the agents obtained a warrant, searched Bridges' car, collected debris from the interior and trunk of the car, and swabbed the interior. The agents subsequently obtained another warrant and searched Bridges' house for a vacuum cleaner which contained material similar to that found in the trunk of his car.

The court, after a pre-trial hearing, denied Bridges' motion to suppress the analysis of his hand swabbing, on the ground that it was done in violation of his Fourth and Fifth Amendment rights; and to suppress the materials seized in the searches, on the ground that the affidavits supporting the warrant applications contained untruths and that therefore the warrants were improperly issued.

At the hearing Bridges testified that neither he nor his attorney consented to the hand swabbing, that he attempted to call his attorney during the interrogation but could not reach him, and that he eventually offered his hands for swabbing because the only "other alternative would have meant a little hassle, I imagine."⁷ The agents testified that Bridges submitted to the swabbings without protest and did not use the available telephones.

The court found that Bridges had consented to the swabbing; that even if he had not, his Fifth Amendment right was not violated because the swabbing was not testimonial; that the swabbing without his consent was not an unreasonable search and seizure; and that there was probable cause to issue the warrants since the minor discrepancies in the affidavits were insufficient to invalidate the warrants.

Bridges contends the court erred in denying the motion to suppress. We disagree.

A.

The district court did not err in denying the motion on the Fifth Amendment ground. We think that swabbing, like drawing the defendant's blood in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), was not a violation of that Amendment's protection against self-incrimination, since the swabbing did not "provide the state with evidence of a testimonial or communicative nature. . . ." Id. at 761.

Neither did the court err in denying the motion on the Fourth Amendment ground.⁸

In Schmerber the Court held that the warrantless intrusion into Schmerber's body for blood was reasonable in light of the exigent circumstances therein; the blood was drawn to determine its alcoholic content which diminishes rapidly in time.

The Second Circuit, in United States v. D'Amico, 2 Cir., 408 F.2d 331, 333 (1969), held that admission into evidence of clippings of D'Amico's hair did not violate his Fourth Amendment right. The court stated:

Some official in-custody investigative techniques designed to uncover incriminating evidence from a person\'s body are such minor intrusions into or upon the "integrity of an individual\'s person" (Schmerber 384 U.S. at 772 . . .), that they are not, in the absence of a search warrant, unreasonable intrusions. (Footnote omitted.)

It is apparent that had the agents not swabbed Bridges' hands at the time, the opportunity may not have knocked again, especially if Bridges washed his hands. Accordingly, we find that the intrusion upon Bridges was similar to that in Schmerber and D'Amico. The swabbing was no more offensive to Bridges' person than fingerprinting or photographing him. Schmerber, at 764; D'Amico, at 333. We hold that the swabbing was not an unreasonable search, and affirm the district court's ruling.

B.

We turn to the remaining issue of whether the warrants were issued without probable cause.

The transcript of the suppression hearing supports the district court's finding of sufficient facts in the affidavits to establish probable cause: statements relating to the agents' investigation of the scene of the crime, interviews with witnesses and Union officials, and the interrogation of Bridges.

The court also decided that the two minor factual errors in the affidavits did not vitiate the warrants.

Assuming arguendo that this court's decision in United States v. Carmichael, 7 Cir., 489 F.2d 983 (1973), reached back to the Bridges suppression hearing, it would not require a finding of error in the court's decision. In Carmichael we held that "(1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material" will invalidate a search warrant and require suppression of the evidence. Id. at 988.

The factual errors herein were (1) a statement that dynamite had been found on Bridges' hands, whereas only components of dynamite were found, and (2) a statement that Bridges consented to the swabbing on advice of his counsel, when actually his counsel advised him merely to report to the police station.

We think the first misstatement is an unintentional misrepresentation of an immaterial fact because the...