Doran v. United States

• Decision Date: 03 February 1970
• Docket Number: No. 24502.,24502.
• Citation: Doran v. United States, 421 F.2d 865 (9th Cir. 1970)
• Parties: Michael Patrick DORAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.2d 865 (1970)

Michael Patrick DORAN, Appellant, v. UNITED STATES of America, Appellee.

No. 24502.

United States Court of Appeals, Ninth Circuit.

February 3, 1970.

Peter J. Hughes (argued), of Sheela, Lightner, Hughes, Hilmen & Castro, San Diego, Cal., for appellant.

Joseph A. Milchen (argued), Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

Before BARNES and CARTER, Circuit Judges, and BYRNE,^* District Judge.

BYRNE, District Judge.

Appellant was convicted of bank robbery (18 U.S.C. § 2113(a)). Prior to trial, he made a motion to suppress evidence of incriminating statements and a mask, gun, and the stolen money, the location of which he had divulged to agents of the Federal Bureau of Investigation.

The sole specification of error is whether the trial court erred in denying the motion to suppress.

Following the hearing on the motion to suppress, the court made and filed its findings of fact, which are not disputed. Insofar as relevant to this appeal, the findings are set forth below.

On July 24, 1968, at approximately 2:25 p. m. John A. Keefe and Byron M. Taylor, Special Agents for the Naval Investigative Services Office, Office of Naval Intelligence, both civilians, were advised that there had been a bank robbery at Camp Pendleton. They proceeded to the area of the bank that had been robbed, arriving there at approximately 3:20 p. m. At that time they contacted Jim Scanlon, Special Agent of the Federal Bureau of Investigation, which investigative agency had taken jurisdiction in the matter.

Scanlon directed Taylor and Keefe to check out an incident where a gunnery sergeant had reported suspicious activity by someone at approximately the time of the robbery. Scanlon also provided a description of the robber to Keefe and Taylor, indicating that the bank robber was a male, thin build, about five feet eight inches tall, wearing a Marine utility uniform.

Taylor proceeded to interview one Gunnery Sergeant Cooper. Cooper advised Taylor that a young Marine, male, white, five feet eight inches tall, one-hundred forty pounds, with dark, wavy hair, dark brown pants, and beige sweater, was nervous and frightened in Cooper's presence when the young Marine sought to use the telephone in the Enlisted Men's Club (approximately 150 yards from the bank that was robbed). Taylor also interviewed one David Howard Blue in the same area who related a similar description of an individual who had used the phone at about that time. Two other individuals related that the individual who used the phone was nervous.

Scanlon directed Taylor and Keefe to cruise the area to see if they could find anyone meeting the general description of the robber. Taylor and Keefe proceeded to cruise the area, also looking for discarded military clothing, assuming that the bank robber might have changed clothes.

At approximately 3:45 p. m. Taylor and Keefe observed defendant walking east on Basilone Road, approximately 100 yards west of the bank that had been robbed. Taylor identified himself and Keefe to defendant as Special Agents for Naval Intelligence. Taylor further advised defendant that there had been a bank robbery in the area and that he (defendant) met the general physical description of the person, and that Taylor and Keefe would like to talk to him. Taylor asked defendant if he was in the military. Defendant identified himself by producing his service identification card. Taylor asked defendant to which command he was assigned, and defendant indicated assignment to a regiment approximately 10 miles and twenty minutes drive from the area where the conversation was taking place. Defendant was visibly nervous at that time, and indicated that his car had broken down, and that he was expecting his girl friend to pick him up.

Taylor then asked defendant to accompany him and Keefe to the Enlisted Men's Club and to talk with the Federal Bureau of Investigation. Defendant indicated that he did not mind accompanying them. Defendant was frisked for weapons, and entered Taylor's vehicle and located himself in the back seat with Keefe.

Taylor drove to the Enlisted Men's Club, and Cooper identified defendant as the individual about whom Taylor and Cooper had had the previous conversation. Taylor and Keefe returned with defendant to the bank.

Taylor exited the vehicle and went into the bank to contact Scanlon about defendant. Taylor advised Scanlon that defendant matched the vague description of the bank robber, that defendant was coy and furtive. While Taylor was in the bank, defendant remained in the back seat of the vehicle with Keefe. Keefe took statistical information from defendant so that Keefe could write it down. The information related to defendant's name, rank, service number and command. Keefe asked no questions of defendant regarding the bank. Defendant repeated his explanation of his presence in the area. As defendant was quite talkative, Keefe exited the vehicle for the purpose of avoiding further conversation with defendant. Further conversation might have led to an area of discussion which might have caused Keefe to advise defendant of his constitutional rights, and Keefe wanted to leave that matter to the Federal Bureau of Investigation.

Scanlon directed Terry Lee Knowles and John Jones, Special Agents of the Federal Bureau of Investigation, to interview the individual who had accompanied Taylor and Keefe to the bank area. Knowles first saw defendant between 4:00 p. m. and 4:19 p. m. Knowles was not aware of the information that was brought to Scanlon's attention, but did know that defendant did match the general description of the bank robber. No other member of the Federal Bureau of Investigation had interviewed defendant prior to the time that Knowles and Jones came into contact with him.

Knowles identified himself to defendant at Taylor's vehicle. Knowles indicated that he was a Special Agent of the Federal Bureau of Investigation, displayed his credentials to defendant and requested to interview him. Defendant stated that he would be glad to speak to Knowles and Jones and accompanied them to Knowles' vehicle, which was a convenient place to sit and take notes. The interview commenced at 4:19 p. m. Knowles indicated to defendant that there had been a bank robbery that day, that they were investigating it, that defendant met the general description of the bank robber, and that the purpose of the interview was to establish defendant's identity and the nature of his activities during the course of the day. Knowles was unaware of any information that defendant had related to Taylor and Keefe, and knew nothing of defendant's activities on that day. Defendant was advised also that he was not under arrest at that time. Defendant indicated that he understood that he was not under arrest, and that he was willing to continue with the interview.

Knowles determined that defendant was a Marine, and was assigned to an area some distance from the one in which defendant was discovered. Defendant...