U.S. v. Maguire

• Decision Date: 12 September 1990
• Docket Number: Nos. 89-1814,89-1818 and 89-2098,s. 89-1814
• Parties: UNITED STATES, Appellee, v. John J. MAGUIRE, Defendant, Appellant, UNITED STATES, Appellee, v. Thomas M. KAVANAGH, Defendant, Appellant, UNITED STATES, Appellee, v. Robert A. HICKEY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 254

918 F.2d 254

UNITED STATES, Appellee, v. John J. MAGUIRE, Defendant, Appellant, UNITED STATES, Appellee, v. Thomas M. KAVANAGH, Defendant, Appellant, UNITED STATES, Appellee, v. Robert A. HICKEY, Defendant, Appellant.

Nos. 89-1814, 89-1818 and 89-2098.

United States Court of Appeals,

First Circuit.

Heard Sept. 12, 1990.

Decided Nov. 2, 1990.

Carolyn Grace, with whom Luisa Marques and Shapiro, Grace & Haber, Boston, Mass., were on brief, for defendant, appellant Maguire.

Joan Lieberman, Boston, Mass., for defendant, appellant Kavanagh.

Richard D. Glovsky, with whom Daniel S. Tarlow, James A. Janda and Glovsky &amp Associates, Boston, Mass., were on brief, for defendant, appellant Hickey.

S. Theodore Merritt, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

These are consolidated appeals from convictions on jury verdicts rendered in two separate criminal trials involving four defendants. Three defendants, John J. Maguire, Thomas M. Kavanagh and Robert A. Hickey, appeal.

On October 18, 1988, four men participated in an armed robbery of a branch of the Bank of New England, One Rockdale Street, Braintree, Massachusetts. Maguire and Kavanagh were arrested by Braintree police seventeen minutes after the robbery. On October 20, 1988, Hickey surrendered in response to an arrest warrant. On November 11, 1988, a federal grand jury returned a three-count indictment charging Maguire, Kavanagh and Hickey with violating 18 U.S.C. Sec. 371 (conspiring to commit armed bank robbery), 18 U.S.C. Secs. 2113(d) and 2 (armed bank robbery and aiding and abetting), and 18 U.S.C. Sec. 924(c) (using a firearm during a crime of violence).

On December 19, 1988, a superseding indictment added Count Four, charging Maguire and Kavanagh under 18 U.S.C. Sec. 922(g)(1) (being convicted felons in possession of firearms) and added a fourth defendant, William Ferreira, in the first three counts. The district court denied all suppression motions but granted Hickey a separate trial to avoid a potential Bruton problem. On January 31, 1989, defendants Maguire and Kavanagh filed an unopposed motion to sever Count Four. ¹

After a four-day jury trial, Maguire, Kavanagh and Ferreira were convicted on all three counts. Hickey was also adjudged guilty on the three counts in a subsequent jury trial. All three filed timely notices of appeal.

The issues on appeal are (1) whether the district court erred in determining that there was not only reasonable suspicion to stop and frisk Maguire and Kavanagh but probable cause to arrest them, (2) whether the district court erred in refusing to suppress, inter alia, two firearms seized along with a programmed police scanner and batteries from the trunk of Maguire's car in an allegedly unconstitutional warrantless search, (3) whether the district court erred in failing to suppress unMirandized statements made by Maguire at the time of his arrest, (4) whether the district court erred in permitting into evidence both in-court and out-of-court identification of the defendants based on impermissibly suggestive photographs, (5) whether the district court's inadvertent remarks regarding the severed firearms count during voir dire and comments on the evidence during jury instruction constituted harmful error. We affirm all three convictions.

I. BACKGROUND

The testimony of witnesses at the suppression hearings and the trials establishes the following: on October 18, 1988, at approximately 12:30 p.m., three men wearing nylon stocking masks robbed a branch of the Bank of New England at One Rockdale Street, Braintree, Massachusetts, a federally insured bank. Two men vaulted the counter and seized cash from the tellers' drawers. The smaller man (identified as John Maguire) was armed with a small handgun and shoved a teller into a closet. A third robber, identified as Thomas Kavanagh, brandished a large, long-barreled gun in the lobby. In approximately two minutes, the three robbers left with $29,985.45 in cash and fled in a waiting Buick. Driven by a fourth man, the tan Buick had license plate 823-KBC, which was noted by both bank employees and customers.

A silent alarm notified Braintree police who, in turn, reported the robbery in progress over the police radio. Off-duty Detective Lieutenant Donald Murphy, a sixteen-year veteran officer of the Braintree Police Department, heard this report while at home. Officer Murphy knew from experience that the South Shore Plaza, which is less than one mile from his home and from the Bank of New England, had been utilized to switch and dump getaway cars used in previous robberies. He immediately drove towards the plaza in his private unmarked truck.

En route he heard another police radio transmission stating that three armed males were fleeing by car from the bank. Murphy assumed that the bank robbers were white because no identifying race was mentioned and also assumed that there was a fourth man, a getaway driver. As he drove along Common Street on his way to the Plaza, Murphy saw four men, each carrying a bag, descending an embankment to his right. This embankment, divided by a fence through which the men crawled, is immediately adjacent to an expressway, Route 128. The only way a person could get from the expressway to the South Shore Plaza on foot is by clambering down the embankment. Within an hour a tan Buick, which turned out to be the original getaway car, was found abandoned on the expressway about 20 yards from where the men had descended the embankment.

Lieutenant Murphy saw the men brush off their pants and neaten their hair as they stopped before crossing Common Street, which separates the embankment from the Plaza. As Murphy was stopped in traffic, the four men walked between six and ten feet in front of his truck, allowing him both full face and side profile views. They conferred briefly, split into pairs and went to two vehicles in the parking lot of the Plaza: a blue Oldsmobile, license plate 820RMP, and a gray Hyundai, license plate 599MIX. Each man placed the bag he was carrying in a car trunk. Murphy noted that one blue and tan bag looked heavy, as though it contained contraband. Carried by John Maguire, it was placed in the blue car along with a brown paper bag carried by Thomas Kavanagh. Murphy decided to follow the blue Oldsmobile. Before doing so, he drove into the parking lot to record both license plates and view again the two men in the gray car. Murphy radioed for backup.

As he followed the blue car, he saw both men bend over as if changing shoes and the driver swerve as he changed jackets. Suddenly the driver, identified as John Maguire, made an abrupt U-turn into a gas station; Officer Murphy held up his police radio to inform Maguire that he was being followed. At this point, Maguire reversed his car as if to escape when he was confronted by the back-up cruiser. The driver of that car, Officer Robert Smith, alighted, drew his gun and ordered Maguire to stop. Maguire and Kavanagh were ordered out of their car and patted down. Maguire asked what the problem was. In response to a question by Murphy, he denied he had been at the South Shore Plaza.

Officer Murphy quickly made a sweep of the car and opened the trunk. He felt two loaded guns in the blue and tan bag and found a radar detector and police scanner in the brown paper bag. Maguire responded negatively when asked if he or Kavanagh had a permit for the guns. The two were then arrested, given Miranda warnings, transported to the Braintree police station, booked and photographed.

II. PROBABLE CAUSE

Defendants have challenged the district court's findings of probable cause both for lawful arrest and for search and seizure of the evidence found in the blue Oldsmobile. Our exploration of probable cause proceeds on several levels.

First, we examine the district court's determination of probable cause and its denial of defendants' motions to suppress the evidence seized. We look at the facts in the light most favorable to the court's ruling and accept its findings unless they are clearly erroneous. See United States v. Moscatiello, 771 F.2d 589, 596 (1st Cir.1985); United States v. Patterson, 644 F.2d 890, 894 (1st Cir.1981); 3 C. Wright Federal Practice and Procedure Sec. 678, at 805 & n. 24 (2d ed. 1982). Probable cause exists when " 'the facts and circumstances within [the police officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.' " United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1983)).

This court, as well as the district court, must consider the totality of circumstances to evaluate the government's demonstration of sufficient " '[p]robability ... of criminal activity.' " Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983) quoted in United States v. Jorge, 865 F.2d 6, 9 (1st Cir.), cert. denied, 490 U.S. 1027, 109 S.Ct. 1762, 104 L.Ed.2d 198 (1989). Because there are " 'so many variables in the probable cause equation,' " probable cause findings are not invariably bound by precedent. Id. 462 U.S. at 238 n. 11, 103 S.Ct. at 2332 n. 11 quoted in Jorge, 865 F.2d at 9 n. 1. "Probability is the touchstone.... [The] government need not show 'the quantum of proof necessary to convict.' " Jorge, 865 F.2d at 9 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978)).

Given the facts, we find that there was probable cause to arrest even before the search of the car and its trunk. The entire, tightly forged chain of circumstances had a number of links. It began with Lieutenant Murphy's hearing of the armed robbery on his police radio, continued...