U.S. v. Carbajal
| Decision Date | 14 February 1992 |
| Docket Number | No. 89-50507,89-50507 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph CARBAJAL, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carol Klauschie and Korey House, Deputy Federal Public Defenders, Los Angeles, Cal., for defendant-appellant.
Karin J. Immergut, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN, PREGERSON and ALARCON, Circuit Judges.
Joseph Carbajal, Jr. appeals from the judgment of conviction following a trial by jury for armed robbery in violation of 18 U.S.C. § 2113(a)(d), and for carrying a firearm during a violent crime in violation of 18 U.S.C. § 924(c)(1).
Carbajal seeks reversal on the following grounds:
One. The district court erred in denying his suppression motion because he was arrested without probable cause.
Two. The district court erred in determining that Katilleen Pyne consented to the search of her residence.
Three. The district court erred in ruling that the photospread shown to the bank teller was impermissibly suggestive.
We conclude that the district court failed to state its essential findings on the record as required by Rule 12(e) of the Federal Rules of Criminal Procedure and vacate the denial of the motion to suppress with directions. We affirm the district court's ruling that the in-court identification was admissible.
On December 30, 1988, at approximately 3:45 p.m., two men robbed the Torrance branch of Wells Fargo Bank. A bank customer informed officers of the Torrance Police Department that the robbers left the bank in a white van bearing California License Number 2N54799. The eyewitness also noticed that the rear window of the van was missing. The officers discovered through official channels that a white Ford van with that license number was registered to Katilleen Pyne. Katilleen Pyne's current address was 428 North Bandini, San Pedro, California.
Two Torrance Police Department officers drove to Pyne's Bandini street residence. They observed Pyne's van parked approximately 15 yards away from 428 North Bandini.
The officers conducted a surveillance of the area for approximately five hours. During that time the officers saw a black Ford car pull up in front of 428 North Bandini. The driver matched the description of one of the robbers of the Torrance branch of the Wells Fargo Bank. A woman alighted from the car, entered the residence, and returned a few minutes later. The driver drove the car away.
At approximately 6:15 p.m., the officers saw Carbajal leave the Bandini Street residence with two women. They entered a red car which was parked in front of Pyne's white Ford van. The car was driven to 11th and Pacific. There Carbajal walked up to the bank robbery suspect who earlier had been observed parked in front of 428 Bandini in a black Ford car. The women remained in the car. The two robbery suspects spoke to each other briefly and then entered the bar. About 5 minutes later, Carbajal left the bar and drove the red car back to the residence at 428 North Bandini. Carbajal and the two women entered the house. At approximately 9:30 p.m. Carbajal left the residence. He was arrested as he entered the red car.
Carbajal was indicted on February 9, 1989. On March 15, 1989, Carbajal filed a motion to suppress evidence obtained "as a result of the warrantless search of his girlfriend's house."
At the suppression hearing, the Government submitted the declarations of Sergeant Dennis Addington and Detective Steven Boutwell of the Torrance Police Department. In his declaration, Sergeant Addington stated that as he parked his police car to arrest Carbajal, the suspect got out of the car and turned toward the house as if to flee. Carbajal was then handcuffed and told he was under arrest for bank robbery. Moments later, the front door of the residence at 428 North Bandini was opened. A woman came outside. Sergeant Addington saw other persons moving about in the house. He asked them to come outside.
Sergeant Addington entered to determine whether there were any other persons in the house. After conducting a protective sweep of the house, Sergeant Addington returned to the front of the house, and spoke to a person who identified herself as Katilleen Pyne.
Sergeant Addington's declaration contains the following recitation of facts concerning his encounter with Pyne.
I explained to Ms. Pyne that we were police officers and that we were there investigating a bank robbery. I also told her that we believed that her van was used in the robbery. Ms. Pyne said that she had lent the van to the defendant, her boyfriend, and that "Joe" had returned it just before dark. She further stated that the defendant stays with her sometimes at 428 Bandini, in her daughter's room, and that he keeps his personal belongings in her daughter's bedroom closet. She further stated that she paid the rent for the residence.
I then told Ms. Pyne that we wanted to search her house for evidence of the bank robbery and asked whether she would give us her written consent. I further told her that she was not required to give us consent. She stated, "Yeah, go ahead and look anywhere you want."
The declaration also alleges that Sergeant Addington reentered the house and searched the bedroom closet. He found a plastic bag. The bag contained a blue steel revolver, a nickle-framed automatic pistol, a blue Pendleton shirt a black curly long wig, several dark watch caps, a pair of gloves, and an imitation Gucci brown zipper pouch. In a hall closet, Sergeant Addington found a green strong box containing a small amount of cocaine and numerous clear ziplock baggies.
Thereafter, Pyne was placed under arrest and taken to the police station. At the police station, Pyne was asked to sign a consent form because Sergeant Addington did not have any consent-to-search forms at the time Pyne orally consented to the search. Sergeant Addington also alleged that later that day, "another officer inadvertently asked Ms. Pyne to sign a second consent form, which she did."
Detective Boutwell's declaration contains a recitation of his investigation of the robbery of the Torrance branch of the Wells Fargo Bank. He received the description of the bank robbers and the license number of the van from a young man in the bank. Detective Boutwell's declaration does not contain any facts regarding the events that followed Carbajal's arrest.
The court granted Carbajal's request that Sergeant Addington be called to testify so that his attorney could cross-examine him. Sergeant Addington was questioned concerning the surveillance and the arrest of Carbajal. He was not asked any questions concerning the substance of his conversation with Pyne or whether it was made under coercive circumstances. The entire cross-examination of Sergeant Addington concerning Carbajal's arrest and the conversation with Pyne appears in the following colloquy:
Q The arrest took place approximately 10:20 p.m.; is that correct?
A That's incorrect.
Q What time was it?
A Approximately 9:30. I believe 9:30, yes.
Q Any efforts made to obtain an arrest warrant?
A No, ma'am.
Q Why not?
A Didn't feel it was necessary.
Q When Mr. Carbajal came out of the house before 9:30, did the officers draw their guns?
A Yes, ma'am.
Q All of the officers?
A I believe so.
Q There were children present; isn't that true?
A Not at that point in time, it's not true.
Q At some point in time, were there children present?
A Yes, ma'am.
....
Q The conversation with Ms. Pyne that you've noted in your direct examination, was that taped?
A No, ma'am.
Q Did you take notes?
A No.
Q You didn't write the report in this case; isn't that true?
A That is true.
MS. KLAUSCHIE: Nothing further, Your Honor.
After Sergeant Addington was excused, Carbajal called Pyne as a defense witness. Pyne testified that she did not speak to Sergeant Addington, and did not consent to a search of her house. She did not see any of the officers come out of the house carrying anything in their hands. She testified further that at the station house, she signed a consent form because she was told it was for the search of her van. She testified that she was assured that the consent form did not authorize a search of the house. She stated that she was told that she would be notified prior to any search of her house and she "would have to be present."
Pyne described her initial encounter with the Torrance Police Department as follows:
When I got to the door, there's just a bunch of people screaming at me to come out, lie on the ground. They all had guns to my head. I just screamed back that it was just me and the children inside the house and we went outside and laid on the floor. I got [my sons, ages 12 and 6] and my youngest one underneath me.
. . . . .
Then we were outside on the ground and they had guns to me--to all of us. And then the police went in.... They kept the guns to our heads.
. . . . .
We just laid on the ground and then--I wasn't laying, I was more on my knees, down on my knees. And I had my little boy like kind of under me. And then they stayed with the gun to my head and we sat out there.... And then they had [appellant] over to the side and they were hitting him. And then when I was looking more over, the man in front of me got the gun closer into my head and had me turn my head. Told me if I turned my head again, he would shoot. I kept still watching over there and they were just basically just beating, hitting him.
And then they told us we could get up and then a neighbor of mine, she came. She was screaming. They were all screaming at her to get back, to stop. She still kept coming and she was--I was telling her to stop 'cause they were going to shoot us if she didn't stop.
. . . . .
I'd say anywhere from seven to...
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