U.S. v. Downing

• Decision Date: 04 December 1981
• Docket Number: No. 81-1297,81-1297
• Citation: 665 F.2d 404
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. John Theodore DOWNING, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 404

665 F.2d 404

UNITED STATES of America, Plaintiff, Appellant, v. John Theodore DOWNING, Defendant, Appellee.

No. 81-1297.

United States Court of Appeals, First Circuit.

Argued Oct. 5, 1981.

Decided Dec. 4, 1981.

Margaret D. McGaughey, Asst. U. S. Atty., Portland, Me., with whom Thomas E. Delahanty, II, U. S. Atty., Portland, Me., was on brief, for plaintiff, appellant.

Theodore K. Hoch, Bath, Me., with whom Day & Hoch, Bath, Me., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, BREYER, Circuit Judge, BONSAL, Senior District Judge. ^*

COFFIN, Chief Judge.

Appellee was arrested on June 3, 1980, and was subsequently charged with conspiracy to violate the federal narcotics laws, 21 U.S.C. §§ 846, 963. Before trial, appellee made a motion arguing, inter alia, that a statement he made to a law enforcement officer was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that this statement, along with evidence found as a result of it, should be suppressed. The district court granted this motion, and the government appeals from the court's order pursuant to 18 U.S.C. § 3731.

The underlying facts are not disputed. After a lengthy investigation, federal and state drug enforcement agents concluded that a parcel of property in Tenant's Harbor, Maine, was being used in connection with violations of federal drug laws. The agents found appellee in the main house on the property; he was placed under arrest, and a state police officer advised him of his Miranda rights. After initially waiving his rights and responding to police questioning, appellee stated that he wished to see a lawyer before talking further.

Appellee was soon moved to another building on the premises for booking procedures. A federal customs officer advised him that he was not required to answer any questions; but the officer failed to recite the full Miranda warnings or to ascertain whether appellee had previously requested the presence of an attorney before additional interrogation. After taking down appellee's personal history, the officer requested that he empty his pockets and surrender various articles, including some keys. The officer asked what the keys were for, and appellee responded that they belonged to his Cessna airplane. When asked where the plane was located, appellee stated that it was parked at the Owl's Head Airport in Rockland, Maine. This was the first time any of the drug enforcement agents learned of the plane's existence. The police then requested consent to search the plane, which appellee ultimately refused, indicating that he preferred to consult an attorney first. Later, while being transported to Portland to appear before a magistrate, appellee apparently expressed concern about the welfare of his plane.

Law enforcement officers subsequently obtained a warrant and searched the plane. Charts and other documents were found in the cockpit. The officers also questioned airport employees, who made statements implicating appellee in the drug conspiracy.

The district court found that appellee's statement about the existence and location of his airplane was inadmissible against him because he had previously requested a lawyer and his statement was made in response to a question asked when no lawyer was present. The court further held that the evidence obtained as a result of this violation must be suppressed. On appeal, the government argues in the alternative that no Miranda violation occurred, that the exclusionary rule should not be applied to the fruits of such a violation, and that the tangible and testimonial evidence suppressed below would have been discovered independent of any Miranda violation. We affirm the district court's holding on the first two issues, and remand solely to allow the court to consider the government's argument that the suppressed evidence would independently have been obtained.

I.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that the Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his right to remain silent and to have an attorney present during questioning and has voluntarily waived those rights. The Court has recently stated in clear terms that "an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation." Edwards v. Arizona, --- U.S. ----, ----, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981). Moreover, once an accused requests the presence of counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with police." Id. at ----, 101 S.Ct. at 1885.

The government concedes that appellee was questioned about his keys in the absence of an attorney, after he had explicitly requested the presence of counsel, and that appellee did not initiate this conversation. It is also uncontested that appellee was in "custody" for purposes of the Fifth Amendment, because he had been arrested when the questioning occurred. The government's argument is instead that the police questioning arose during the course of "routine booking" and thus did not constitute "interrogation" within the meaning of Miranda.

The Court in Miranda defined interrogation as "questioning initiated by law enforcement officers". 384 U.S. at 444, 86 S.Ct. at 1612. The term "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).

We think it clear that when appellee was asked what his keys belonged to and where his plane was located, this constituted "express questioning" and therefore satisfied the Court's definition of "interrogation". The government's reliance on cases holding that questions relating to an accused's identity do not implicate the Fifth Amendment is misplaced. While courts have held that Miranda does not apply to "biographical data necessary to complete booking", United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974); see United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 (2d Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976) (questions pertaining to marital status), because information about a suspect's identity is not "testimonial" in character, United States v. Prewitt, 553 F.2d 1082, 1085-86 (7th Cir.), cert. denied, 434 U.S. 840, 98 S.Ct. 135, 54 L.Ed.2d 104 (1977), we do not construe this limited exception to encompass all questions asked during the booking process. See Proctor v. United States, 404 F.2d 819 (D.C.Cir.1968) (police question "are you employed" in order to fill out line-up sheet constitutes interrogation).

Miranda and its progeny are based on the premise that custodial questioning is inherently coercive. Once an accused indicates that he wishes to remain silent or desires the presence of an attorney, "any statement taken (by police officials) cannot be other than the product of compulsion, subtle or otherwise." Miranda, supra, 384 U.S. at 474, 86 S.Ct. at 1628. The resumption of questioning in the absence of an attorney after an accused has invoked his right to have counsel present during police interrogation strongly suggests to an accused that he has no choice but to answer. "(T)he accused having expressed his own view that he is not competent to deal with the authorities without legal advise, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism." Michigan v. Mosley, 423 U.S. 96, 110 n.2, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (1975) (White, J., concurring).

Given the unavoidable coerciveness of police questioning after an accused has requested the presence of counsel, we decline the government's invitation to create a broad exception to the Fifth Amendment for police questions asked without "investigative intent" or pursuant to "required administrative procedures". ¹ The exception in Innis for police actions or statements "normally attendant to arrest and custody" does not apply to the "express questioning" which occurred here, but only to its "functional equivalent". 446 U.S. at 300-01, 100 S.Ct. at 1689-90. In any case, we think the questions about appellee's keys and airplane were "reasonably likely to elicit an incriminating response." Id. at 301, 100 S.Ct. at 1689. We therefore hold that appellee's statements about the existence and location of his airplane were properly excluded.

II.

The government next argues that even if appellee's responses to police interrogation are inadmissible, the Fifth Amendment exclusionary rule does not require that the third party testimonial and tangible evidence discovered as a result of his statements be suppressed. The government relies heavily on Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). In Tucker, the Court held that the failure of police to advise a suspect of his right to have counsel appointed if he was unable to afford retained counsel did not require the exclusion of evidence obtained as a result of the accused's response to police questioning, when the interrogation occurred prior to the Court's decision in Miranda. Tucker is clearly not controlling; the Court explicitly declined to determine the scope of the Fifth Amendment exclusionary rule when, as here, the interrogation occurred after the Miranda decision. Id. at 447, 94 S.Ct. at 2365.

Moreover, Tucker is distinguishable on a number of grounds which lead us to hold that the fruits of appellee's statements must be suppressed. Tucker's holding was based...