U.S. v. Collom, s. 77-1040

Citation614 F.2d 624
Decision Date23 November 1979
Docket Number77-1034,Nos. 77-1040,s. 77-1040
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bruce Anthony COLLOM, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stephen COLLOM, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Rudolph A. Diaz (argued), Los Angeles, Cal., for defendants-appellants.

Darrell W. MacIntyre, Asst. Chief U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHOY and WALLACE, Circuit Judges, and TURRENTINE, * District Judge.

WALLACE, Circuit Judge:

Bruce Collom appeals his conviction for robbing a federally insured savings and loan association in violation of 18 U.S.C. § 2113(a). His brother Stephen Collom appeals his conviction for aiding and abetting the robbery in violation of 18 U.S.C. § 2. We affirm both convictions.

I. The Facts

On September 30, 1976, at 11:30 a. m., Bruce Collom (Bruce) robbed the Garden Grove Federal Savings and Loan Association in Garden Grove, California. Complying with his demand for money, a teller put $3,439 in cash in a paper sack supplied by Bruce. Bruce then left the building, ran down an alley, and was seen leaving the area in a green Ford Mustang, license number 247 PON, being driven by another man.

About an hour later, Eileen Hedrick was walking by Parking Lot C on the UCLA campus, which is approximately 44 miles from the Garden Grove Federal Savings and Loan Association. From the sidewalk adjacent to the lot and moments later from the window of a nearby building, she saw Bruce and his brother Stephen Collom (Stephen), who matched the description of the driver of the getaway car, wiping the exterior of the green Mustang with rags. Suspecting a burglary, Hedrick telephoned the campus police.

Officer Malone of the UCLA Police Department received a radio call directing him to Parking Lot C to investigate a possible auto theft. Upon arriving at the lot, Malone saw Stephen and Bruce stooped down at the rear of the Mustang, license number 247 PON, with a rolled-up T-shirt between them. As Malone stopped his car about 20 feet from them, they stood up and began to walk away rapidly. Being aware of the high incidence of burglary and auto theft in this area, and suspecting criminal activity, he asked them to stop. They complied.

Officer Longo then arrived, and the officers questioned the two men separately about their purpose and the ownership of the Mustang. Bruce said that the car belonged to his friend Debbie and that he was borrowing some tools from it. Stephen claimed he was borrowing tools to fix his own car, but he was unable to say where his own vehicle was located. Both men said they were on their way to register for school. Officer Malone noticed what appeared to be damage to the left rear window of the Mustang, to the ignition wires, and to the glove box.

Officer Stanley, who had arrived about the same time as Longo, asked and received Bruce's permission to examine the T-shirt. Inside she found several cans of wax, miscellaneous tools, sunglasses, and a toy pistol resembling a .38 caliber revolver. After Malone and Longo questioned the men, Longo was informed over his police radio that the Mustang belonged to a Mr. Jones.

At this point, Stephen and Bruce were placed under arrest and taken to the UCLA police station. No Miranda warnings were given. At the station, the two suspects were questioned further and searched. Stephen was discovered to have $402 in his wallet and pockets; Bruce had a total of $3,042 in his wallet, shirt pocket, and the sleeve of his jacket. Some of the bills found on Bruce were later identified as "bait money" which had been put in his bag at the savings and loan. Only after the arrest did the UCLA police learn that the robbery in Garden Grove had occurred.

Bruce was indicted by a federal grand jury for robbing the savings and loan association; Stephen was indicted for aiding and abetting the robbery. Both pleaded not guilty, and both moved to suppress all the evidence taken by the UCLA police officers. The district judge granted the motion with respect to statements made after arrest since no Miranda warnings had been given. In all other respects the motion was denied. The matter then went to trial, and the jury returned verdicts of guilty against both defendants.

On appeal, Stephen claims that the motion to suppress should have been granted in full, that certain evidence admitted at trial should have been excluded because the trial judge had previously found its probative value to be outweighed by its prejudicial effect, and that a mistrial should have been granted. Bruce admitted at trial that he had performed the robbery, but he claims on appeal that his conviction must be reversed because the trial court wrongfully refused to give a requested instruction relating to his insanity defense, because the trial court should have granted his motion for a continuance, and because he was inadequately represented by his attorney. 1 We now consider these issues.

II. The Motion to Suppress

Prior to the adoption of the Federal Rules of Evidence, the law of this circuit required a federal court to judge the legality of a stop, arrest, or search and seizure by state officers under both state and federal standards, violation of either standard constituting sufficient grounds for suppression of the evidence. United States v. Solomon, 528 F.2d 88, 90 (9th Cir. 1975); United States v. Lovenguth, 514 F.2d 96, 98 (9th Cir. 1975); United States v. Walling, 486 F.2d 229, 235 (9th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974); United States v. Fisch, 474 F.2d 1071, 1075 (9th Cir.), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973); Wartson v. United States, 400 F.2d 25, 27 (9th Cir. 1968), cert. denied, 396 U.S. 892, 90 S.Ct. 184, 24 L.Ed.2d 166 (1969). The effect, if any, of the Federal Rules of Evidence on this rule is uncertain. 2 However we need not reach this question, for we hold that under both federal and state standards, the motion to suppress was properly denied.

Stephen argues that the motion to suppress all the evidence both oral and physical taken by the UCLA police should have been granted in its entirety for three reasons: (1) the initial investigatory stop of Stephen and Bruce by Officer Malone was illegal; (2) Miranda warnings should have been given during that stop, even though an arrest had not been made; (3) the subsequent arrest was not based on probable cause. We find no merit in any of these contentions.

Our circuit has consistently held that an investigatory stop short of an arrest is valid if based upon a founded or reasonable suspicion that criminal activity is afoot. E. g., United States v. Holland, 510 F.2d 453, 455 (9th Cir.), cert. denied, 422 U.S. 1010, 95 S.Ct. 2634, 45 L.Ed.2d 674 (1975); Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971); Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966). The Supreme Court has recently defined reasonable suspicion to exist when the detaining officer is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the law is being broken. 3 United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Similarly, California law permits investigatory stops when an officer has a "rational suspicion" that "some activity out of the ordinary is or has taken place," that the subject under scrutiny is connected with the unusual activity, and that "the unusual activity is related to crime." People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545, 547 (1967); see, e.g., People v. Wheeler, 43 Cal.App.3d 898, 902-03, 118 Cal.Rptr. 205, 207 (1974). See also, United States v. Orozco, 590 F.2d 789, 792 (9th Cir. 1979).

We have no difficulty deciding that the investigatory stop conducted by Officers Malone, Longo and Stanley was appropriate under both federal and state standards. The radio bulletin directed them to investigate a possible burglary of an automobile in an area plagued by such incidents. Stephen and Bruce were found stooping down suspiciously at the rear of the green Mustang. Upon seeing Officer Malone, they began to retreat rapidly. The totality of these circumstances easily justified the officer in stopping them and asking them questions.

Stephen asserts that even though an arrest had not been made at this point, his statements to the officers should have been suppressed because Miranda warnings were not given. We disagree. We have held on numerous occasions that even though one's freedom of action is inhibited to some degree during an investigatory detention, Miranda warnings need not be given prior to questioning in that circumstance. E. g., United States v. Hickman, 523 F.2d 323, 326-27 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 778, 46 L.Ed.2d 639 (1976); United States v. Edwards, 444 F.2d 122, 123 (9th Cir. 1971); United States v. Smith, 441 F.2d 539-40 (9th Cir. 1971); United States v. Chase, 414 F.2d 780, 781-82 (9th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 200 (1969); Lowe v. United States, 407 F.2d 1391, 1393-94 (9th Cir. 1969). California courts applying California law have reached the same conclusion. People v. Hill, 12 Cal.3d 731, 767, 117 Cal.Rptr. 393, 420, 528 P.2d 1, 28 (1974); see, e.g., People v. Manis, 268 Cal.App.2d 653, 661-69, 74 Cal.Rptr. 423, 428-33 (1969); People v Wheeler, supra, 43 Cal.App.3d at 903, 118 Cal.Rptr. at 207.

Stephen claims that Officer Stanley's action in unrolling the T-shirt was illegal because it went beyond the scope of searches permitted during investigatory stops. It is apparent from the record, however, that Bruce consented to that limited search, and we do not understand either Bruce or Stephen to argue that the consent...

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