77 F.3d 285 (9th Cir. 1996), 94-50318, United States v. Van Poyck

Docket Nº:94-50318.
Citation:77 F.3d 285
Party Name:D.A.R. 1850 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Howard VAN POYCK, Defendant-Appellant.
Case Date:February 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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77 F.3d 285 (9th Cir. 1996)

D.A.R. 1850

UNITED STATES of America, Plaintiff-Appellee,


Jeffrey Howard VAN POYCK, Defendant-Appellant.

No. 94-50318.

United States Court of Appeals, Ninth Circuit

February 20, 1996

Argued and Submitted Nov. 13, 1995.

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[Copyrighted Material Omitted]

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Benjamin A. Brin, Law Offices of Benjamin A. Brin, Los Angeles, California, for defendant-appellant.

Daniel P. Collins, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; A. Andrew Hauk, District Judge, Presiding.

Before: HALL and JOHN T. NOONAN, Jr., Circuit Judges, SHUBB, District Judge. [*]

Opinion by Judge HALL; Concurrence by Judge NOONAN.



Jeffrey Van Poyck was suspected of robbing three San Bernardino and Riverside County banks in early 1993. 1 Through a series of superseding indictments, he was eventually charged with three counts of armed robbery in violation of 18 U.S.C. § 2113(a), (d) and one count of conspiracy to commit armed bank robbery under 18 U.S.C. § 371.

Van Poyck was originally arrested on Friday afternoon, May 21, 1993, by California state officers. On Monday morning, May 24, he was transferred to federal custody and made his initial appearance before a federal magistrate. On the way to his initial appearance, Van Poyck made several incriminating statements to the federal officer driving with him. No federal magistrates were available over the weekend to arraign him.

Upon his arrival at the Metropolitan Detention Center ("MDC") in Los Angeles on May 25, Van Poyck called a number of his friends and made more incriminating statements. MDC routinely tapes and selectively monitors all inmate telephone conversations. When Van Poyck first arrived at MDC, he was required to sign a form in which he consented to the routine monitoring and taping. Signs posted above the telephones read:

The Bureau of Prisons reserves the authority to monitor conversations on the telephone. Your use of institutional telephones constitutes consent to this monitoring. A properly placed phone call to an attorney is not monitored.

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Van Poyck proceeded to trial on February 2, 1994, and was convicted of two counts of armed robbery and one count of conspiracy. He was sentenced to 327 months of incarceration.

Van Poyck appeals the district court's denial of his motions: (1) to suppress his May 24 statements because the government violated Federal Rule of Criminal Procedure 5(a); and (2) to suppress the telephone conversations recorded by the MDC as obtained in violation of the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510. 2 We affirm his convictions.


Van Poyck claims that the statements he made on May 24 should be excluded because they were a result of pre-arraignment delay.

Federal Rule of Criminal Procedure 5(a) requires "[a]n officer making an arrest under a warrant ... [to] take the arrested person without unnecessary delay before the nearest available federal magistrate judge ..." Fed.R.Crim.P. 5(a). Courts look to 18 U.S.C. § 3501(c) to determine whether pre-arraignment statements obtained in violation of Rule 5(a) are admissible. United States v. Manuel, 706 F.2d 908, 912-13 (9th Cir.1983) ("Section 3501 was intended to supersede the McNabb-Mallory rule as the source of federal supervisory power to suppress confessions obtained in violation of Federal Rule 5(a).") (citation omitted). The defendant bears the burden of proving grounds for exclusion. United States v. Halbert, 436 F.2d 1226, 1230 (9th Cir.1970).

18 U.S.C. § 3501(c) provides, in relevant part:

In any criminal prosecution by the United States ... a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate.... if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.

18 U.S.C. § 3501(c) (emphasis original). This Circuit has concluded that the "clear effect of this provision is to create a six-hour 'safe harbor' during which a confession will not be excludable [solely because of delay]." United States v. Alvarez-Sanchez, 975 F.2d 1396, 1399 (9th Cir.1992), rev'd on other grounds, --- U.S. ----, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). 3 This "safe harbor" extends beyond the six hour mark if the delay is reasonable and is due to "the means of transportation and the distance to be traveled to the nearest available magistrate ..." Id. at 1399-1400 & 1404 n. 6.

Statements made outside the six-hour "safe harbor" may be excluded solely for delay, but a court is not obligated to do so. Alvarez-Sanchez, 975 F.2d at 1401; Manuel, 706 F.2d at 913 ("Where the delay is longer than six hours ... a confession is not inadmissible per se."); Halbert, 436 F.2d at 1232 ("[O]n its face subsection 3501(c) provides only that some confessions shall be admitted. It does not explicitly provide that all other confessions shall not be admissible.") (emphasis original).

This Circuit has identified two ways to decide whether to admit such a non-"safe

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harbor" statement. See Alvarez-Sanchez, 975 F.2d at 1404. In one line of cases, we have looked to the reasonableness of the delay; if it is reasonable, the statement is admissible. See Manuel, 706 F.2d at 913. In another line, we have looked to public policy concerns such as discouraging officers from unnecessarily delaying arraignments, preventing admission of involuntary confessions, and encouraging early processing of defendants; if public policy favors admission, the statement is admissible. 4 See United States v. Wilson, 838 F.2d 1081, 1087 (9th Cir.1988).

Van Poyck's statements, which fall outside § 3501(c)'s "safe harbor," are admissible under either standard. 5 Under the first test, the delay is reasonable. This Circuit has intimated on many occasions that overnight delays are reasonable. See United States v. Fouche, 776 F.2d 1398 (9th Cir.1985) (refusing to conclude that overnight portion of a 20-hour delay made the delay in arraignment unreasonable); Wilson, 838 F.2d 1081 (same); Alvarez-Sanchez, 975 F.2d at 1405 (reserving issue of whether overnight delays were reasonable); cf. Manuel, 706 F.2d at 908 (finding overnight delay reasonable); United States v. Jernigan, 582 F.2d 1211, 1214 (9th Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978) (affirming conviction even though the police officer, by intentionally arresting defendant on Friday so defendant would remain in jail over a long weekend, violated Federal Rule of Criminal Procedure 9(c)(1)'s mandate to bring a defendant quickly before a magistrate).

Other Circuits have explicitly found weekend delays reasonable when due to the unavailability of a magistrate. See United States v. Mendoza, 473 F.2d 697, 702 (5th Cir.1973) (finding delay between Saturday morning arraignment and Monday morning arrest reasonable); Gregory v. United States, 364 F.2d 210, 212 (10th Cir.), cert. denied, 385 U.S. 962, 87 S.Ct. 405, 17 L.Ed.2d 307 (1966) (finding delay between Friday night arrest and Monday morning arraignment reasonable); United States v. Collins, 349 F.2d 296, 298 (6th Cir.1965) (same).

The result reached in all these cases is dictated by the complex procedures needed to arraign a defendant. An arraignment requires court personnel to randomly select a judge, requires pretrial services to process the defendant, and often requires an interpreter; this is simply not a task that can be performed in a magistrate's living room. 6 We therefore now explicitly hold what has been implicitly understood all along: An overnight or weekend delay in arraignment due to the unavailability of a magistrate does not by itself render the delay unreasonable under § 3501(c).

The same concerns which underlie our holding persuade us to reject the argument that the alternative arraignment procedures set forth in Rule 5(a) render a weekend delay unreasonable. Rule 5(a) provides that the person to be arraigned should be taken "before a state or local judicial officer authorized by 18 U.S.C. § 3041" if a magistrate judge is "not reasonably available." Fed.R.Crim.P. 5(a). In his concurrence, Judge Noonan seems to concede that a federal magistrate judge may not be reasonably available over the weekend, see infra at 293; by insisting that a defendant be arraigned by state or local judicial officers over such a

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weekend, however, he suggests that these other officers are so available. It seems logical to assume that the purpose of any alternative arraignment provision would only be achieved if the government provided a defendant the same type of arraignment before a state or local judicial officer as would be provided a federal magistrate. State and local judges are just as likely to be unavailable for arraignments on nights and weekends as a federal magistrate judge. 7 With that in mind, we do not believe that this provision of Rule 5(a) requires that the defendant be brought before either a federal magistrate or a state or local judicial officer at night or on...

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