U.S. v. Surridge

• Decision Date: 30 August 1982
• Docket Number: No. 82-1033,82-1033
• Citation: 687 F.2d 250
• Parties: UNITED STATES of America, Appellee, v. James Louis SURRIDGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 250

687 F.2d 250

UNITED STATES of America, Appellee, v. James Louis SURRIDGE, Appellant.

No. 82-1033.

United States Court of Appeals Eighth Circuit.

Submitted May 20, 1982.

Decided Aug. 30, 1982.

Christopher Thomas, Little Rock, Ark., for appellant.

George W. Proctor, U. S. Atty., Kenneth F. Stoll, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

James Louis Surridge appeals his conviction at a bench trial for bank robbery with the use of a dangerous weapon in violation of 18 U.S.C. § 2113(d) (1976). The basis of his appeal is that the district court ¹ erred in denying his motion to suppress evidence obtained in consequence of a statement he made to a friend while Surridge was in police custody.

I. Facts

On Wednesday, August 19, 1981, a bank in Pottsville, Arkansas, was robbed by two individuals wearing blue overalls. The two were chased but escaped into a wooded area. On Friday morning, August 21, a police officer from the Pope County Sheriff's Department saw Surridge walking along the highway and stopped him because of his similarity to one of the bank robbery suspects. The officer asked Surridge where he had been and where he was going. Surridge's inconsistent answers and his similarity to one of the bank robbery suspects aroused the officer's suspicion. The officer suggested that they go to the Pope County Courthouse in Russellville, Arkansas, and Surridge complied with the request. The officer had not asked about the bank robbery, had not placed Surridge under arrest, had not read Miranda rights to Surridge, and had not told him he did not have to go to the courthouse.

An FBI agent met Surridge at the courthouse and told Surridge he wanted to interview him about the bank robbery. He presented Surridge with a waiver of rights form. Surridge said he did not want to answer questions without an attorney, and that he would call a friend to get the attorney. He then called a friend, Dan Spencer, who was living with him at the time. Surridge asked Spencer to come to Russellville. Surridge then requested that he be taken to his truck. An FBI agent and the sheriff took Surridge to his pickup truck, which was in a wooded area. Surridge's co-defendant was in the cab of the truck, in which also was located a weapon. Other physical evidence, including an automatic weapon, overalls, and gloves, was obtained from the scene. At this point the FBI agent told Surridge and his co-defendant they were under arrest. They were returned to the Pope County Courthouse and jailed.

The next day, Saturday, August 22, Spencer called the sheriff and asked if he could visit Surridge. The sheriff said Spencer could visit Surridge on Sunday, August 23. During the course of Spencer's conversation with the sheriff, Spencer said he might be able to find out the location of the stolen money. On Sunday Spencer went to the courthouse, where an officer took him to Surridge. Spencer and Surridge met shortly before visiting hours in a conference room in the courthouse. They were given coffee and doughnuts. Without Spencer's knowledge, the police attempted to tape-record the meeting, but the tape was inaudible. After Spencer left the meeting with Surridge, he related to the sheriff what Surridge had told him. Using Spencer's information, the police found the money in a farm pond.

Surridge argued before the district court that evidence of his conversation with Spencer should have been suppressed because Spencer was acting as a government agent and therefore his meeting with Surridge violated Surridge's privilege against self-incrimination, his right to counsel, and his right to due process. The district court held a suppression hearing to determine whether Surridge's meeting with Spencer was the functional equivalent of an interrogation. After hearing the evidence, the district court found that the police had offered nothing of value to Spencer before the meeting for his information, they had not made a deal with Spencer, they had done nothing to direct or control the interview, and Spencer had volunteered the idea of acquiring the information. The court held that under these circumstances Spencer could not be considered an agent of the police, and the motion to suppress was denied. After a bench trial, Surridge was convicted and sentenced to eighteen years in prison.

II. Standard of Review

First we must determine the standard of review of the district court's findings. As a general proposition, we will accept a district court's findings of fact unless clearly erroneous, United States v. Williams, 604 F.2d 1102, 1121 (8th Cir. 1979), and we make an independent review of legal conclusions. In the instant case it is important to distinguish between the factual issues and the legal issues. Some courts have called the determination of whether a person is a government informant or agent a factual determination. United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982); United States v. Van Scoy, 654 F.2d 257, 261 (3d Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 977, 71 L.Ed.2d 114 (1981). We agree that the determination as to the relationship or understanding between the police and the informant ² is a factual determination. However, beyond this factual determination there is a legal question: whether the relationship or understanding as found by the district court is such that the informant's questioning has to be considered government interrogation for constitutional examination. See Malik, 680 F.2d at 1165.

The factual determinations in this case are that the police made no offer to Spencer, no deal was struck between Spencer and the police, Spencer had no previous relationship with the police, Spencer received no payment or benefit for his information, the police made no attempt to direct or control the interview, and the police knew Spencer would probably attempt to obtain incriminating information from Surridge. Applying our usual standard of review of factual determinations, we find more than enough evidence in the record to say that the district court's findings are not clearly erroneous. ³ The legal question which remains is whether, under the facts of this case, Surridge's fourth, fifth, or sixth amendment rights were violated.

III. Right to Counsel

Surridge argues that the meeting between him and Spencer violated his right to counsel under the sixth amendment ⁴ and his right to counsel as a component of the privilege against self-incrimination under the fifth amendment. ⁵

A. Basis of the Right to Counsel

The Supreme Court has found the right to counsel implicit in the fifth amendment as well as by the terms of the sixth amendment. 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 guarantees an accused the right to have counsel present during custodial interrogation. Id. at 469-70, 86 S.Ct. at 1625. The rationale was essentially that in-custody interrogation contains inherently compelling pressures which work to undermine the individual's will to resist and compel him to speak when he would not otherwise do so freely. Id. at 467, 86 S.Ct. at 1624. The Court has recently stated that the fifth amendment right to counsel means: "(A)n accused ..., having expressed his desire to deal with the police only through counsel, 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 conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981). See also Stumes v. Solem, 671 F.2d 1150 (8th Cir. 1982), petition for cert. filed, 50 U.S.L.W. 3949 (U.S. Apr. 30, 1982) (No. 81-2149.)

Surridge's sixth amendment claim is based on United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), which held that the government violated the defendant's sixth amendment right to counsel by intentionally creating a situation likely to induce the defendant to make incriminating statements without the assistance of counsel. Id. at 274, 100 S.Ct. at 2189. See also Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964).

B. Analysis

The sixth amendment does not apply in this case because the sixth amendment right to counsel does not attach until adversarial judicial proceedings have been initiated, Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972), and the record does not show that any such proceedings had been initiated at the time of Surridge's meeting with Spencer. It is unclear whether the rights found in Henry and Massiah could be based on the fifth amendment as well as the sixth amendment. Massiah suggested that the fifth amendment was implicated in that case, 377 U.S. at 204, 84 S.Ct. at 1201, id. at 209, 84 S.Ct. at 1264 (White, J., dissenting), but the Court relied on the sixth amendment. Id. at 205-06, 84 S.Ct. at 1202-03. Because Henry is the Supreme Court case most factually similar to the one at bar, we will assume arguendo that the rights delineated in Henry would apply, through the fifth amendment, to an inmate against whom adversarial judicial proceedings had not been initiated.

The fifth amendment restrains government action, so the relevant inquiry is the extent of the government involvement. Here there are two aspects of the government involvement. The first is the police's relationship with Spencer. As found by the district court, the police made no arrangements with Spencer; the extent of their involvement with him is that they were aware that he was going to try to obtain incriminating information from Surridge. The other aspect of the government involvement is that the police created the setting for Spencer's meeting with Surridge. The setting for this...