U.S. v. Brookins

Citation614 F.2d 1037
Decision Date03 April 1980
Docket NumberNo. 79-5225,79-5225
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wayne Garfield BROOKINS, III, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Richardson R. Lynn, Nashville, Tenn., for defendant-appellant.

J. R. Brooks, U.S. Atty., Frank M. Salter, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH, VANCE and ANDERSON, Circuit Judges.

VANCE, Circuit Judge:

Wayne Garfield Brookins, III, was convicted of receiving or concealing a stolen vehicle, 18 U.S.C. § 2313. He appeals the district court's refusal to suppress certain evidence. We affirm.

I.

The Mountain Brook Police received a complaint from a female friend of Brookins, on September 4, 1978, asking that Brookins and his belongings be removed from her apartment where he had been living. The police arrested Brookins for public intoxication. The female companion voluntarily turned over many of Brookins' belongings to the police. These included about eighteen automobile keys, several license plates issued by the District of Columbia, several tag receipts issued there and in Alabama, several bills of sale for Jaguar automobiles, several traffic citations, and two manuals published by the National Automobile Theft Bureau and disseminated only to law enforcement officials. The police determined that the vehicle identification number (VIN) and license tag of the blue Jaguar that Brookins then possessed were registered to another person and had been obtained with two different addresses. The police subsequently released Brookins and returned his possessions. The legality of these actions is not challenged.

Officer Thompson of the Mountain Brook Police observed a white Jaguar with a District of Columbia license tag in a local motel parking lot at about 1:00 a. m. on November 27, 1978. He viewed the license tag number and public VIN number from outside the vehicle and immediately checked these through the National Crime Information Center and local authorities. He learned that District of Columbia authorities did not have any record of the license tag and that the VIN was registered to Ronald Fry at a false Birmingham address. Officer Thompson then determined that Brookins was registered at the motel under a Nashville address, and found from Nashville authorities that the address was false. He reported this information to Lt. Littlefield, who on November 27 assigned Officer Watkins on the incoming day shift to observe the Jaguar until the police could obtain a search warrant. Officer Watkins failed to find the vehicle when he arrived at the motel. He periodically checked for it through the day.

Lt. Littlefield meanwhile examined the motel record of long distance telephone calls and noted the numbers that Brookins had called. Lt. Littlefield sent three Nashville telephone numbers that he had found in the motel long distance records to that city's vice squad. On November 27 it reported the name of the individual listed to one number as M.D. Holt. The police also investigated a traffic citation that they found among Brookins' belongings on September 4. It was issued in Irondale, Alabama, to David L. Hurst, who resided in Nashville. The police gave the names of M.D. Holt and Hurst to an FBI agent in Nashville, who interviewed them.

Officer Watkins saw Brookins' Jaguar driving toward Birmingham on the next day, November 28. He arrested Brookins for having an improper license plate, and then charged him with violating the state uniform title law because a VIN plate had been removed. The police towed the Jaguar to city hall for an inventory. They discovered that the public VIN differed from the true VIN and that the doorframe VIN had been defaced. In the Jaguar's trunk they found a set of VIN plates for a Jaguar, another license tag, a title certificate, and a tag receipt. The police had not obtained an arrest warrant or search warrant.

The Mountain Brook Police incarcerated Brookins for seventy-two hours, without presenting him to a magistrate, and interrogated him for a total of six or seven hours of that time. They promised Brookins that they were "not interested in you" but wanted information about other automobile thieves and that his statements were " 'off the record.' " He gave a handwritten consent to a search of his motel room, and made some incriminating statements in reliance on those promises. The police asked him whether he had placed a telephone call to anyone named Holt, and Brookins gave them the name of Carlton Holt. Carlton Holt later became the primary witness for the prosecution. The police released Brookins to federal authorities on December 1.

At the time of the custodial interrogation of Brookins on November 28-29, the police had the name and address of M.D. Holt but had not then learned of Carlton Holt. The government argues with some ambiguity that the Nashville agent later reported the name of Carlton Holt back to the Mountain Brook Police, while Brookins contends that Hurst did not give Carlton Holt's name (although M.D. Holt might have disclosed it) and that the police first obtained the name directly through Brookins' interrogation statements.

Brookins was tried before a jury in federal district court for receiving or concealing a stolen 1974 Jaguar. 18 U.S.C. § 2313. He moved before trial to suppress the incriminating statements and the search consent given during the custodial interrogation, and the court granted the motion. Brookins also moved to suppress the Jaguar and its contents, but the court denied the motion and admitted it into evidence. He moved at trial to exclude Carlton Holt's testimony as the fruit of his interrogation statement disclosing Holt's identity, and the court denied that motion also. The judge reasoned that the police "picked up the lead on M.D. Holt before (they) started questioning," and that Carlton Holt's name "clearly was discoverable from information they obtained independent of that (interrogation statement)," although the statement was in fact a source of Holt's name. Holt then testified that he assisted Brookins in stealing the 1974 Jaguar in Nashville. The jury found Brookins guilty.

II. WARRANTLESS SEARCH AFTER PROBABLE CAUSE EXISTED.

Brookins contends, first, that the police had probable cause to obtain a warrant and search the Jaguar on the morning of November 27, and that their failure to get a warrant renders the subsequent search illegal as a warrantless search incident to a pretext arrest. We hold that his arrest was valid and the search legal.

In upholding a warrantless examination of the exterior of an automobile parked in a public place based on probable cause and exigent circumstances, the Supreme Court stated that the prior availability of a warrant did not invalidate the warrantless search. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion). (W)e know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. . . . The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action.

Id. at 595-96, 94 S.Ct. at 2472. Accord, United States v. Mitchell, 538 F.2d 1230, 1232 (5th Cir. 1976) (en banc), cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792 (1977). A warrantless search based on probable cause and exigent circumstances therefore is not rendered suspect or invalid as a deliberate bypass of a warrant by the prior existence of probable cause for a search warrant. E. g., United States v. Mitchell, 538 F.2d at 1232-33; see Cardwell v. Lewis, 417 U.S. at 595, 94 S.Ct. at 2471. An inventory search of an automobile incident to a warrantless arrest that was made reasonable by probable cause is not invalidated as a pretext arrest by the previous occurrence of probable cause, even if the search uncovers evidence that leads to an indictment for a different crime.

The police delay in arresting Brookins and in searching his Jaguar was valid and was not "foreclosed if a warrant was not obtained at the first practicable moment" because probable cause and exigent circumstances existed at the time of the arrest and the automobile's seizure. Cardwell v. Lewis, 417 U.S. at 595, 94 S.Ct. at 2472. Accord, United States v. Mitchell, 538 F.2d at 1233. Brookins' arrest for license violations and the inventory search of his Jaguar were valid.

III. EXCEPTIONS TO THE EXCLUSIONARY RULE.

Brookins argues, second, that the police learned of the existence and identity of Holt through the illegal interrogation, and that Holt's testimony should have been excluded as the tainted fruit of this poisoned tree. We reject this contention on two grounds: (1) his testimony was attenuated from the illegal police conduct (Part IV infra ) and (2) the witness would otherwise have been discovered through ordinary police investigation (Part V infra ).

The exclusionary rule bars evidentiary "fruit" obtained "as a direct result" of an illegal search or an illegal coercive interrogation. 1 Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Accord, United States v. Cruz, 581 F.2d 535, 537-38 (5th Cir. 1978) (en banc). Its bar only extends from the "tree" to the "fruit," however, if the fruit is sufficiently connected to the illegal tree:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that...

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