U.S. v. Castro

• Decision Date: 30 January 1984
• Docket Number: No. 81-5823,81-5823
• Citation: 723 F.2d 1527
• Parties: 14 Fed. R. Evid. Serv. 1493 UNITED STATES of America, Plaintiff-Appellant, v. Oscar CASTRO, Charles David Fraga, Peter Diaz, and Thomas Acosta, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1527

723 F.2d 1527

14 Fed. R. Evid. Serv. 1493

UNITED STATES of America, Plaintiff-Appellant, v. Oscar CASTRO, Charles David Fraga, Peter Diaz, and Thomas Acosta, Defendants-Appellees.

No. 81-5823.

United States Court of Appeals Eleventh Circuit.

Jan. 30, 1984.

Stanley Marcus, U.S. Atty., Jeffrey L. Russell, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Ronald A. Dion, Entin, Schwartz, Angert, Dion & Broudy, Spencer Levine, North Miami Beach, Fla., for defendants-appellees.

Herbert Abramson, Miami, Fla., for Acosta.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and ATKINS ^*, District Judge.

PER CURIAM:

Defendants-appellees Acosta, Castro, Diaz and Fraga were charged with conspiracy to possess and possession with intent to distribute approximately 46,000 pounds of marijuana in violation of 21 U.S.C. Secs. 846 and 841(a)(1) (1970) and 18 U.S.C. Sec. 2 (1951). The district court held an evidentiary hearing on defendants' motion to suppress certain statements and evidence. It also heard testimony on the admissibility of coconspirators' hearsay statements pursuant to United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The trial court denied defendants' motion to suppress the contraband, but suppressed a statement made by defendant Acosta based upon its finding that such was obtained in violation of the procedural safeguards mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In addition, finding insufficient independent evidence of a conspiracy, the court held that the hearsay declarations of coconspirators could not be received into evidence at trial. The government appealed both suppression orders. Concluding that Mr. Acosta's statement was not elicited in violation of his fifth amendment rights under Miranda and that there was sufficient independent evidence of a conspiracy to admit the hearsay statements of alleged coconspirators, we reverse both orders and remand to the district court for further proceedings.

I. BACKGROUND

While patrolling the coastline of Key West, Florida, in a marked United States Customs boat, at 7:00 a.m. on November 23, 1979, Customs Officials Seals and Alaino approached a house occupied by the defendants. The house was divided into three apartments, two on the balcony level and one on the top floor. As their boat passed the house, the officers saw defendant Diaz on the balcony and asked him whether he had seen or heard any unusual boat traffic in the channel that night. After receiving abrupt, negative answers the officers ventured down a canal running alongside and behind the building. They observed defendant Fraga peering from behind one of the columns supporting the structure, and two other individuals inside the apartment behind Diaz, looking out from the door, then abruptly pulling back.

As Seals and Alaino docked their boat near the rear of the house, they again noticed Fraga, this time peering around the corner of a shed behind the building. Officer Alaino walked toward the shed and, when he was within a few feet of its entrance, shouted back to Seals that he smelled marijuana. Fraga, who had been slowly walking away from the shed, quickened his pace. Alaino pursued Fraga while Seals proceeded to the house.

When Officer Seals was within six to eight feet of the stairwell leading to the balcony and second-floor apartments, he detected a "very distinct heavy odor of marijuana." Standing in front of the screened entrance to the stairwell, he shouted to the individuals upstairs, identifying himself and requesting them to come down. As he approached the enclosure, he noticed marijuana residue on the flagstones outside the screen door and on the concrete slab of the foyer at the base of the stairs.

Within a few seconds of Seals' announced presence, defendant Acosta came down the stairs. With gun drawn, Seals asked Acosta, "What in the world is going on here?" Acosta replied, "You want money? We got money." A few moments later, Castro and Diaz descended and all three were placed in custody. Officer Alaino then returned with Fraga.

Further investigation revealed residue on the stairs leading to the second-floor apartments; four or five open shopping bags full of marijuana in the foyer area of the screened enclosure; a shed almost completely filled with bales of marijuana; numerous bales in apartment number 2-H on the second-floor; and a well-worn path running from the shed to the common foyer. No residue was found on any of the defendants, although approximately one ounce of marijuana was discovered in apartment 1-H, where two of the defendants had been seen as the boat approached. None of the defendants had a key to the locked shed or to any of the apartments.

Apartment 1-H, where two of the defendants were observed peering out of the door, was rented to one Donald Washbish, who was in Miami at the time of the arrest. Washbish knew none of the defendants and had given no one permission to use the apartment in his absence. Apartment 2-H, which contained the bales, was leased to one John Acosta, whose identity and possible relationship to defendant Acosta are unknown. ¹

In explaining his presence at the house, defendant Acosta testified at the suppression hearing that he and his wife had been invited to a party to be held there by a man named John, a fisherman from whom Acosta had occasionally bought seafood products. The party was also purportedly attended by defendants Castro, Diaz and Fraga, whom Acosta contends he had not met before that night. Following a dispute at the party between Acosta and his wife, Mrs. Acosta left, and Acosta, who had been drinking heavily, fell asleep. Although Acosta claims the party was in Apartment 1-H, which was rented to Washbish and contained about an ounce of marijuana, his wife testified that the party was in Apartment 2-H. The other defendants did not testify at the suppression hearing.

At the conclusion of the James hearing, the district court suppressed Acosta's apparent bribery attempt as a statement made during a custodial interrogation in violation of his fifth amendment rights under Miranda. The court also found insufficient independent evidence of a conspiracy and therefore granted defendants' motion to suppress the hearsay declarations of codefendants. The government contends the district court erred in granting both motions to suppress. We agree and reverse the rulings of the district court.

II. MIRANDA RIGHTS

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth amendments, to be free from compelled self-incrimination during custodial interrogation. These warnings were designed to protect against the evils of "custodial interrogation" and they were not intended to unduly interfere with a proper system of law enforcement or to hamper the police's traditional investigatory functions. Id. at 481, 86 S.Ct. at 1631. Thus, before the warnings need be given, it must be established that the subject was both "in custody" and under "interrogation" by police officers.

The Supreme Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. This court in United States v. Lueck, 678 F.2d 895, 900 (11th Cir.1982), set out a four-factor test for determining whether a declarant is in custody, to wit: (1) the existence of probable cause to arrest; (2) the subjective intent of the police; (3) the subjective belief of the defendant; and (4) the focus of the investigation.

Applying these factors to the facts of this case there is little doubt that Acosta was in custody and that he was the subject of a custodial interrogation. ² After Officer Alaino had detected a strong odor of marijuana, Officer Seals approached the residence, identified himself and shouted for the occupants of the second floor to come down. Defendant Acosta was the first to exit and, as he descended the stairway, he confronted Seals, who had drawn his gun. The agent, asked Acosta, "What in the world is going on here?" Acosta replied, "You want money? We got money." Even though no Miranda warnings had been given to Acosta at this time, we reverse the district court's suppression of the statement since we find that the statement was totally voluntary and clearly outside the protective umbrella of Miranda.

The Supreme Court has consistently stated that not "all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation." Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). In Miranda itself, the Court stated in clear terms: "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." 384 U.S. at 478, 86 S.Ct. at 1629. Officer Seals exclaimed, "What in the world is going on here?" Defendant Acosta responded, "You want money? We got money." This statement was totally unresponsive to Seals' question. It was not improperly compelled by the officer's question in a custodial setting but, on the contrary, was spontaneously volunteered by Acosta in a deliberate attempt to commit a totally separate crime--bribery of a law enforcement official. The safeguards of Miranda can not be extended that far. An attempt to commit another crime designed to interfere with a police officer's carrying out of his duties simply must be beyond the intent of Miranda. ³ This spontaneously volunteered bribery attempt is admissible since it is exactly the type of statement which the Supreme Court excluded...