Cotton v. United States

Decision Date23 January 1967
Docket NumberNo. 20986.,20986.
Citation371 F.2d 385
PartiesGary Leland COTTON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

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George M. Dickerson, of Dickerson & Miles, Las Vegas, Nev., for appellant.

Joseph L. Ward, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before CHAMBERS, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Cotton was found guilty of violating 18 U.S.C. § 2312, by transporting a stolen motor vehicle, a 1963 Chevrolet, identification No. 31269J174220, from Columbia Falls, Montana to Las Vegas, Nevada, knowing that it was stolen. Before his trial, he made a motion to suppress certain evidence under Rule 41(e), F.R.Crim.P., which was denied.

The facts developed at the hearing of the motion, stated most favorably to the government, are these: At 1:30 A.M. on November 2, 1965 Officer Pearns of the Las Vegas Police Department was driving in an alley, with the headlights of his car turned off, and saw another vehicle pull into the alley, turn off its lights, proceed up the alley and park. Cotton got out of the car, walked about 50 yards up the alley and entered a used car lot. The officer stopped his vehicle near the entrance to the used car lot, left the door slightly ajar so that the police dog that accompanied him could be summoned, entered the lot and accosted Cotton. He asked Cotton what he was doing and the response was that he was just looking around. He asked Cotton if he knew the owner of the lot or had any business there and the response again was "No, I am just looking around." He asked Cotton if he knew that the establishment would be closed at that time of day and Cotton said he did. He asked if the car parked in the alley was Cotton's and Cotton said "Yes." He asked Cotton why he had left his vehicle where he had left it and Cotton said "I don't know." He asked Cotton for identification and Cotton replied that he had none because he had lost his wallet. The officer did not at that time tell Cotton that he need not answer his questions, but Cotton's responses were not offered against him at his trial.

The officer did not arrest Cotton, but did ask him to walk over to Cotton's car, and Cotton did. The officer asked Cotton if he would mind if the officer looked into the car, and Cotton said no. The officer did not, however, advise Cotton that he could refuse. The officer entered the car and searched it, looking for a registration and for weapons, but found none. He removed nothing. He asked Cotton if he had a registration and Cotton pulled from his pocket a "title" to the vehicle. This is a Montana "Certificate of Title of a Motor Vehicle" and identifies the car as "1963 Chevrolet 1269 Sedan 3520 31269J174220" and shows the registered owners as "Ernest Helseth and Mrs. Ernest Helseth, Route 1B, Columbia Falls, Montana." Cotton said that he was Helseth.

The officer again asked Cotton if he had a registration. Cotton said that it was in the car, got into the car, opened the glove box and produced the registration, which was also in the name of Helseth. Neither the registration nor the fact that Cotton produced it were used against Cotton at his trial. The officer then told Cotton that he was under arrest for "disturbing private places." This was pursuant to a Las Vegas ordinance. At that point he handcuffed Cotton and searched him for a weapon.

The officer summoned another police vehicle by radio for the purpose of transporting Cotton to the police station, there being a police department rule against transporting anyone in a car in which there was a police dog. Two officers arrived and took Cotton away. Officer Pearns remained until a tow truck came to take the Cotton car to the police impound. He made out a "tow slip" on which he inserted the make, model, serial number 31269J174220, and the Montana license number 7-653. He obtained the serial number by opening the left front door of the car and looking at the door post, which became visible when the door was open. The officer testified that he obtained the information that he put on the slip because "after arresting the man, I am responsible for the vehicle and the property in it." The tow slip also shows the following: "Charges, Prowling Pvt.", and "Hold for safekeeping. Hold proof of ownership."

Officers Jenkins and Wagner were the two policemen who took Cotton to the police station. It is the policy of the police department that all personal effects of a prisoner are taken into custody for safekeeping. When Cotton was booked, he was told to remove his personal belongings from his pockets. He produced, among other things, the "title" to the vehicle and certain receipts, one for a tire and rim that had been sold by Cotton in Missoula, Montana. The officers noticed the name Cotton on the receipts, and asked who Cotton was. (He had been booked under the name of Helseth.) Cotton said that he had picked up a man named Cotton as a hitchhiker in Arco, Idaho. The police pointed out that the receipt was given in Missoula, Montana, and that they thought that Cotton was lying. Cotton then said, "Yes, I am Gary Cotton. Call the Marshal, the vehicle is stolen." The officers asked where he got the car and he said from a farm in Kalispell, Montana. At no time did the officers tell Cotton that he need not answer their questions, or that what he said could be used against him, or that he was entitled to an attorney, or to consult an attorney before he talked to them, or that if he could not afford an attorney one would be furnished for him, or that in that case, they would not ask any further questions until such an attorney was obtained. Cotton did not ask for an attorney. After Cotton made the foregoing admission, he was asked if he would like to make a statement and he said not at that time. The police then told him that he need not make a statement. Cotton's statements to the officers were not used against him at his trial. In the morning, Cotton was brought before a magistrate on the prowling charge, pleaded guilty, and was given a ten-day jail sentence.

On the same morning F.B.I. Agent Howerton was called by the Las Vegas police. He went to the police impound lot and looked at the car. He had no warrant. He took the license number and opened the front door of the car on the driver's side and got the identification number 31269J174220 from the small metal plate that is fastened to the door post. He opened the glove compartment, but took no papers from it, and he found a wallet under the front seat which he examined and found in it a driver's license issued to Gary Cotton. He opened the trunk of the car. He took nothing from the car. He returned to his office and sent a teletype inquiry to the Butte, Montana, office of the F.B.I. as to whether the car had been reported stolen. In his teletype he used both the license number and the identification number.

Before receiving a reply from the Montana F.B.I. office, the Agent went to the Las Vegas Police Department where he looked at the reports of the arresting officers and the receipts that had been taken from Cotton's person, and had an interview with Cotton. He had the receipts in his possession and referred to them when he talked to Cotton. He was accompanied by F.B.I. Agent Casey, but it was Howerton who conducted the interview. Both agents identified themselves, and Howerton advised Cotton that he had a right to remain silent, that anything he said could be used against him in a court of law, that he had a right to consult an attorney or anyone else he desired either prior to the interview or at any time he desired, and that no promises would be made to him nor would any duress be used. Cotton stated that he understood his rights. He then gave Howerton what amounted to a full confession. The interview lasted 48 minutes.

On this appeal Cotton maintains that the examination of the vehicle by Officer Pearns while it was in the alley near the used car lot was an unlawful search, that the examination both by the Las Vegas police and by the F.B.I. of the receipts found on Cotton's person was an unlawful search, that the information that was obtained by use of the receipts was "fruit of the poisonous tree," that the examination of the vehicle in the police impound lot by the F.B.I. was an unlawful search, and that the use of the information thus obtained, i. e., the serial number of the vehicle and the license number, resulted in the discovery that the automobile had been reported stolen by the owner Helseth, thus rendering such discovery also "fruit of the poisonous tree." He also maintains that the information obtained by the Las Vegas police from Cotton was obtained in violation of his rights under the Fifth and Sixth Amendments and that the information subsequently obtained by the F.B.I. agents would not have been given them if Cotton had not already told the Las Vegas police that the car was stolen and that therefore the statement to the F.B.I. agents was "fruit of the poisonous tree." He argues further that Rule 41(e) F.R.Crim.P. violates his rights under the Fifth Amendment because it requires that he make a showing that he has standing to complain of the search of his automobile. His final two contentions are that the interview by the F.B.I. agents should have been suppressed because it violated the McNabb-Mallory Rule and that the trial judge improperly instructed the jury.

Before turning to these questions we consider the government's contention that Cotton had no standing to move to suppress evidence resulting from the search of the vehicle because he did not have lawful possession of the vehicle. We hold that he did have standing. In Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the Supreme Court escaped from the dilemma posed by Judge Learned Hand in Connolly v. Medalie, 2 Cir., 1932, 58 F.2d 629, by...

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