669 F.2d 1231 (9th Cir. 1981), 80-1613, United States v. Booth

Docket Nº:80-1613, 80-1783.
Citation:669 F.2d 1231
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Donald Gene BOOTH, Defendant-Appellee.
Case Date:November 27, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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669 F.2d 1231 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellant,


Donald Gene BOOTH, Defendant-Appellee.

Nos. 80-1613, 80-1783.

United States Court of Appeals, Ninth Circuit

November 27, 1981

Argued and Submitted April 15, 1981.

Rehearing Denied Feb. 8, 1982.

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[Copyrighted Material Omitted]

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Charles H. Turner, U. S. Atty., Portland, Or., for plaintiff-appellant.

Stephen F. Crew, Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE and TANG, Circuit Judges, and PALMIERI, [*] District Judge.

WALLACE, Circuit Judge:

The government, pursuant to 18 U.S.C. § 3731, appeals the district court's pretrial orders suppressing and excluding: (1) certain statements made by Booth in response to questioning before Miranda warnings were given; (2) the identification testimony of three of five bank robbery eyewitnesses; (3) a list of gun stores and ammunition; and (4) the testimony of the government's fingerprint expert. The government also appeals the district court's evidentiary ruling allowing Booth's expert witness to testify regarding visual identification and the district court's order dismissing the indictment. We affirm in part, and reverse and remand in part.


At 11:15 a.m. on April 30, 1980, the Sandy Boulevard Branch of the United States National Bank was robbed by three men wearing Halloween masks and gloves, and armed

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with hand guns and an automatic weapon. A fourth person drove the get-away car. Over $32,000 was stolen.

Shortly after the robbery, a description of the perpetrators was broadcast over the police radio. One of the suspects was described as follows:

Male, white, 5'5 to 5'6 , medium build, dark, curly, collar-length hair, blue and white swirled Hawaiian shirt, small checkered plaid pants, dark and light colored checks, gloves. The suspect had small hands, was wearing a Halloween mask of an ugly man, armed with a small pistol, believed to be a .32 caliber.

Less than one hour later, Officer Mitcham of the Portland Police Bureau observed Booth walking in an area 31/2 miles from the bank. He appeared to match the description. After Mitcham asked for and received a rebroadcast of the description, he stopped his motorcycle beside Booth and advised him that he would like to talk to him for a minute. Mitcham then got off his motorcycle and told Booth to put his hands on top of his head. While Mitcham conducted a pat-down search for weapons, he advised Booth that there had been a hold-up in the area and that Booth matched the description of one of the suspects. Even though he found no weapons, he advised Booth that he was placing him in handcuffs for Mitcham's personal safety. While waiting for a requested police car, Mitcham asked Booth his name, age, and place of residence. He also asked Booth if he had any identification, what he was doing in the area, and whether he had been arrested before. Booth responded with his name, that he was 37 years old, and that he lived in Salem, Oregon. He told Mitcham that he had no identification, that he was visiting friends in Portland, and that he had been paroled the month before from a prison term he received for a burglary that had taken place in Salem.

Booth was then transported to the bank for a "show-up" identification. Before he arrived at the bank, the bank employees who had witnessed the robbery filled out robbery description cards, on which they wrote their descriptions of the robbers. FBI agent Schreuder told the witnesses that a "suspect" who was not necessarily involved in the robbery would be brought in for identification. He also told the witnesses that the person would be handcuffed, but that they were not to infer that he had done anything wrong. Schreuder explained that the handcuffs were standard procedure for the protection of the officer, the suspect, and the witnesses. He instructed the witnesses to decide whether they had seen him on their own, without conferring with anyone else, and not to discuss anything among themselves until they had filled out their comments.

Booth, with his hands handcuffed behind his back, was then taken before the group of witnesses who viewed him for approximately one minute and then recorded their observations. The witnesses were subsequently interviewed regarding their recorded observations. After some of the witnesses identified Booth as one of the robbers, he was taken into a bank conference room where he was formally arrested and advised of his Miranda rights.

Shortly after the robbery, a car believed to be the get-away vehicle was recovered. The interior and exterior of the vehicle were examined for latent fingerprints but none were found. The fingerprint examiner, Aho, concluded that the occupants had either worn gloves or had wiped fingerprints from the vehicle. The only physical evidence recovered from the vehicle was the tip of a surgical glove.

FBI agents later secured a warrant to search the Sandy Boulevard Bargain Center, a commercial establishment located several blocks from the bank. The following items were recovered from the store: (1) a photograph of Booth and three other men; (2) an envelope addressed to Booth's sister; (3) a list of various gun stores and ammunition; (4) a sketch, allegedly of the bank, that had been torn into many pieces and discarded in a wastepaper basket; and (5) three pairs of surgical gloves.

Following his arraignment, Booth filed motions to suppress the eyewitness identifications,

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the statements made to Mitcham and the physical evidence recovered from the Sandy Boulevard Bargain Center. Booth also moved to exclude the deposition of Aho, the government's fingerprint expert, on grounds of relevance.

The district court conducted a hearing that resulted in the suppression and exclusion of the following evidence: (1) Booth's statements to Mitcham regarding why he was in the area and whether he had previously been arrested; (2) the identification testimony of three of the five witnesses who had viewed Booth in the show-up; (3) the list of gun stores and ammunition recovered from the Sandy Boulevard Bargain Center; and (4) Aho's deposition.

The government then requested a continuance to enable it to prosecute an interlocutory appeal pursuant to 18 U.S.C. § 3731. Booth filed a motion to dismiss the indictment, pursuant to Federal Rule of Criminal Procedure 48(b), on the ground that the government had unnecessarily delayed in bringing him to trial. The district court ordered the indictment dismissed without prejudice. The government appealed this order, and we subsequently granted its motion to consolidate the two appeals.


The district judge found that Booth was in custody when he told Mitcham he was in Portland visiting friends and that he was on parole for burglary. The judge also found that Mitcham's questions regarding why Booth was in the area and whether he had previously been arrested constituted interrogation. Thus, because no Miranda warnings had been given prior to the custodial interrogation, the district judge suppressed Booth's answers.

Neither of the parties assisted us with cases or analysis pertaining to what constitutes "custody" or "interrogation" or what our standard of review on these issues should be. The district court's findings of fact at the suppression hearing are reviewable pursuant to the clearly erroneous standard. United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981). However, we first must decide whether the district court's determinations of when a defendant is in custody and when police questioning constitutes interrogation are factual findings.

Whether a person is in "custody or otherwise deprived of his freedom of action in any significant way," Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), is answered by reviewing the totality of facts involved at the time of the alleged restraint. Pertinent areas of inquiry include the language used by the officer to summon the individual, the extent to which he or she is confronted with evidence of guilt, the physical surroundings of the interrogation, the duration of the detention and the degree of pressure applied to detain the individual. Based upon a review of all the pertinent facts, the court must determine whether a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave. United States v. Patterson, 648 F.2d 625, 632 (9th Cir. 1981); United States v. Scharf, 608 F.2d 323, 325 (9th Cir. 1979); United States v. Luther, 521 F.2d 408, 410 (9th Cir. 1975) (per curiam); Lowe v. United States, 407 F.2d 1391, 1397 (9th Cir...

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