U.S. v. McCarthy

• Decision Date: 11 September 1995
• Docket Number: Nos. 95-1105,95-1106,s. 95-1105
• Citation: 77 F.3d 522
• Parties: UNITED STATES, Appellee, v. Aedan C. McCARTHY, Defendant, Appellant. UNITED STATES, Appellee, v. Jeffrey Scott HUNTER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 522

77 F.3d 522

UNITED STATES, Appellee, v. Aedan C. McCARTHY, Defendant, Appellant.

UNITED STATES, Appellee, v. Jeffrey Scott HUNTER, Defendant, Appellant.

Nos. 95-1105, 95-1106.

United States Court of Appeals First Circuit.

Heard Sept. 11, 1995.

Decided Feb. 26, 1996.

Appeals from the United States District Court for the District of Maine; Hon. D. Brock Hornby, U.S. District Judge.

Brian L. Champion with whom Friedman & Babcock, Bath, ME, was on brief, for appellant Aedan C. McCarthy.

Henry W. Griffin, Portland, ME, for appellant Jeffrey Scott Hunter.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Jonathan R. Chapman, Assistant United States Attorney, were on brief, for appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

STAHL, Circuit Judge.

Following a three-day trial, a jury convicted defendants Aedan McCarthy and Jeffrey Scott Hunter of various charges stemming from a series of bank robberies in Alabama, Connecticut and Maine. On appeal, McCarthy and Hunter challenge the district court's refusal to grant their respective suppression motions. In particular, Hunter challenges the district court's failure to suppress evidence produced as the result of an investigatory stop following the Connecticut robbery. McCarthy and Hunter also raise several challenges to their sentences. After careful review, we affirm.

I. Background

In reviewing a district court's denial of motions to suppress, we recite the facts as found by the district court to the extent that they derive support from the record and are not clearly erroneous. See, e.g., United States v. Sealey, 30 F.3d 7, 8 (1st Cir.1994). Where specific findings are lacking, we view the record in the light most favorable to the ruling, making all reasonably supported inferences. See United States v. Kimball, 25 F.3d 1, 3 (1st Cir.1994); United States v. Sanchez, 943 F.2d 110, 112 (1st Cir.1991).

A. Hunter's Connecticut Detention

On July 6, 1992, around 1:45 p.m., two men robbed a bank in Franklin, Connecticut. Each man wore a plastic, Halloween-type mask, covering his entire face, and each was armed, one with a pump-action shotgun and the other with a semi-automatic pistol. The man carrying the shotgun stood in the bank's lobby, issuing commands, while the other vaulted the teller's counter and collected the money. They fled the bank in a light-blue GMC Jimmy truck.

A short time later, the Connecticut State Police located the truck, abandoned in an industrial park less than a mile from the bank. Witnesses reported that a red Pontiac Sunbird bearing Rhode Island license plates recently had been parked near the spot where the abandoned GMC Jimmy was found. Subsequently, the police issued an updated radio bulletin, indicating that the two suspects were now believed to be travelling in the red Pontiac Sunbird.

About 2:30 p.m., Officer Arthur Richard of the Norwich Police Department spotted a red Pontiac Sunbird bearing Rhode Island license plates at a gas station, not far from Franklin. Officer Richard reported the sighting, and, after the car left the station, stopped the vehicle as it prepared to enter an interstate highway. Officer Richard ordered the driver out of the Sunbird, patted him down for weapons and directed him to take a seat in the back of his police cruiser. The police cruiser's internal rear door handles were not functional and a plastic spit guard and a wire cage separated its rear and front seats. Officer Richard did not handcuff the driver.

In response to Officer Richard's questioning, the driver identified himself as Hunter. Officer Richard ran a registration check on the Sunbird and learned that it was registered to a rental agency at a Rhode Island airport. Hunter told Richard that a friend had rented the automobile for him because his own car was under repair. Hunter, however, refused to identify the friend.

Within minutes, several other police officers, including Connecticut State Troopers Jerry Hall and Louis Heller, arrived on the scene. Trooper Hall spoke to Hunter through the open rear door of Richard's cruiser and detected alcohol on Hunter's breath. Hunter admitted drinking a few beers with a friend, but declined to identify the friend. At Hall's request, Hunter took a field sobriety test, which he passed.

About 2:43 p.m., Trooper Hall advised Hunter of his Miranda rights and informed him that, although he was not under arrest, he was being detained for investigative purposes. Hunter stated that he understood his rights and waived them, but nonetheless declined to say where he had been since 1:00 p.m., stating only that he had been with a "Born-Again-Christian" friend. At some point, Trooper Hall explained that the officers were detaining him because his Pontiac Sunbird matched identically the description of a vehicle involved in a bank robbery that had occurred earlier that day. Trooper Hall continued to question Hunter intermittently for about forty-five minutes. During that time, other officers drove a teller from the bank by the cruiser in an unsuccessful attempt to identify Hunter as one of the robbers. In addition, Trooper Hall took three Polaroid photographs of Hunter.

Meanwhile, Trooper Heller learned that the agency registered as the owner of the Pontiac Sunbird had rented the vehicle to Lance Hall, a black male, who had listed Hunter, who is white, on the rental agreement as a co-driver. ¹ After receiving this information, Heller went to a nearby bar and questioned patrons in an attempt to determine whether Hunter and another individual had stopped there earlier. Upon returning to the police cruiser in which Hunter was still being detained, Trooper Heller asked Hunter where he had been prior to the stop. Hunter replied that he had not been anywhere near Franklin, but instead had spent the day at a friend's place in the woods. Hunter, however, claimed not to remember his friend's name nor where the place was located. On the basis of the information he had obtained from the rental car agency, Trooper Heller then asked Hunter if his friend was black. With this question, Hunter became agitated, swore at Heller, and, while gesturing in one general direction, told him to find out for himself. This occurred about 3:45 p.m., approximately seventy-five minutes after Officer Richard initially stopped Hunter.

Trooper Heller knew the area well and could think of only one black male living in the general direction in which Hunter had gestured. Consequently, Trooper Heller drove to that person's house and inquired whether Hunter had visited earlier that day. The black male living at the house identified himself as James Hall and stated that Hunter had been there with another man named John. According to James Hall, Hunter and John had borrowed James Hall's truck earlier in the day and had later returned to Hall's house to change their clothes. After interviewing James Hall, Heller returned to where Hunter was being detained and, at 4:43 p.m., Hunter was released.

B. The Ensuing Investigation

Following his release, Hunter remained the focus of the Franklin robbery investigation. The investigation involved a cooperative effort between the Connecticut State Police, the Federal Bureau of Investigation ("FBI"), and, ultimately, law enforcement officials in Alabama and Maine. During the course of the investigation, James Hall ² revealed to investigators that Hunter's friend "John" had recently replaced his Alabama driver's license with a Connecticut license in the name of John E. Perry. Investigators subsequently learned that the real John E. Perry had lost his Alabama license prior to the Franklin bank robbery and that McCarthy had used the alias John Perry in Florida following an arrest there. ³ The real John E. Perry, who lived in Alabama, identified McCarthy as James Hardiman, an individual who had been involved with his former wife. Investigators also learned that, in 1991, Hunter and McCarthy had spent time together as cellmates in a Connecticut state prison.

As the investigation progressed, Connecticut authorities apprised FBI agents in Alabama, who were investigating a series of similar Alabama bank robberies, of the events surrounding the Franklin robbery. Accordingly, McCarthy and Hunter became suspects in the Alabama robberies. In early 1993, Alabama FBI Agent Marshall Ridlehoover learned that McCarthy and Hunter might be living in Chilton County, Alabama. Agent Ridlehoover alerted the Chilton County Sheriff's Department that the two men were suspects in a series of bank robberies in Alabama and Connecticut and sent the department photographs of McCarthy and Hunter. Initially, Ridlehoover told the Chilton County Sheriff's Department that the FBI wanted to have the two men kept under surveillance. Subsequently, Ridlehoover informed the Sheriff's Department that a federal arrest warrant for unlawful flight from prosecution had been issued for Hunter.

C. Alabama Arrests of Hunter and McCarthy

While driving to work on the morning of April 23, 1993, Deputy Wayne Fulmer, assistant chief deputy of the Chilton County Sheriff's Department, noticed a pickup truck bearing Maine license plates. Because the presence of Maine plates in Chilton County struck Fulmer as rather unusual, he ran a registration check on the truck and discovered that the truck was registered to a John E. Perry. Fulmer knew at this time that FBI investigators were looking for an individual using the alias John E. Perry in connection with a series of bank robberies in Connecticut and Alabama.

Later that morning, a woman at the local power company, who had been shown a photograph of Hunter, reported that a person resembling Hunter had requested that power be turned on at his trailer. After receiving this report, Fulmer brought a copy of Hunter's photograph to the woman and asked her to notify the Sheriff's Department if the man...