Harney v. United States

• Decision Date: 21 February 1969
• Docket Number: No. 24916.,24916.
• Parties: Thadious Edward HARNEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.2d 586 (1969)

Thadious Edward HARNEY, Appellant, v. UNITED STATES of America, Appellee.

No. 24916.

United States Court of Appeals Fifth Circuit.

February 21, 1969.

Phillip A. Hubbart, Miami, Fla., for appellant.

Morton Orbach, Asst. U. S. Atty., Miami, Fla., for appellee.

Before GOLDBERG, GODBOLD and SIMPSON, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant, in custody and as the result of interrogation, made oral statements and then a full written confession to the local police, all without sufficient Miranda warnings.¹ Subsequently, after a sufficient warning had been given, he gave another written confession to the FBI. The trial court conducted full and appropriate hearings outside the presence of the jury to determine the admissibility of these confessions. The earlier statements, including the first written confession, were suppressed, but the trial judge declined to suppress the second written statement. It was admitted in evidence over objection. Appellant was convicted by the jury of interstate transportation of a stolen vehicle,² and he appeals. We reverse.

At 3:38 a. m. Officer Hill of the West Palm Beach, Florida police department stopped the Pontiac car driven by appellant after observing it crossing the double yellow center line of a street in that city. Hill asked appellant for his driver's license, which he produced, and for evidence of ownership, which appellant did not produce. Hill was given permission by appellant to search the trunk of the car for evidence of ownership and was shown the empty glove compartment, but appellant declined to allow Hill to search or to see the contents of the open floor console (in which Hill observed documents, some of which bore a Pontiac insignia, and a wallet). In response to questions from Hill, appellant told Hill that he purchased the car new in Detroit, and he stated the price paid for it. Before leaving the scene, on questioning by Hill, appellant admitted that he was a convicted felon and that he had not registered as such in Florida.³

Hill felt that the car was stolen, but he told appellant that he was arresting him for driving across the center line and for an unlighted tail light. Hill then took appellant to the West Palm Beach police station and jail. All the subsequent events occurred there. At the station, for the first time, Hill gave appellant a Miranda-type warning, found to be insufficient by the trial court. He interrogated appellant no further, and appellant gave no statements to him. Hill then formally charged appellant with four offenses — crossing the center line, unlighted tail light, failure to register as a convicted felon, and auto theft.

At about 4:00 a. m. Officer Matthews of the same police department interrogated appellant concerning ownership of the car and where he had obtained it, without giving any warning. Appellant said that he had bought another car in Detroit, wrecked it, and that his insurance company had purchased as a replacement the one he presently was driving. He stated that he had no evidence of ownership but possibly it could be obtained from the insurance company in Nashville.

Appellant was placed in a one-man cell. Later he was given breakfast and went to sleep. About 9:00 or 10:00 a. m. he was awakened and taken from the jail portion of the building to the detective bureau where he was interrogated by Detective Slattery. This interrogation was pursuant to investigation of the auto theft charge. Slattery had been told by his superior that appellant had been arrested for a traffic offense and charged with auto theft, and he was instructed to follow up on the case. He had seen Hill's written report.

Slattery read appellant a prepared card, described by Slattery as an "idiot card," the text of which was a Miranda-type warning. The trial court found the contents of the card to be insufficient under Miranda standards.⁴ During the interrogation by Slattery, appellant repeated the story he had told Matthews, except that he gave the name of the Pontiac dealer in Nashville from whom he stated the insurance company had purchased the car. This interrogation lasted approximately thirty minutes.

Slattery talked by telephone with the named Pontiac dealer (or its successor) in Nashville and found that the automobile had been found missing from its premises and reported as stolen a month before. Approximately an hour after Slattery's initial interrogation appellant was brought down again from jail. Slattery confronted him with what he had found out and read him the card again. Appellant then orally confessed that he had stolen the car from the Nashville dealer and transported it to Florida.

At some time between the oral confession to Slattery and early afternoon a detailed typewritten statement was prepared by the detective, and appellant signed it. At one point in his testimony Slattery referred to the statement as bearing a written time notation of 10:40 a. m. Elsewhere he described the time notation as "1:40," and stated this was when he began to type it, and that it was signed shortly thereafter.

Some time before noon appellant was returned to his cell, where he had lunch and stayed two or three hours. During this mid-part of the day, at a time not precisely fixed but after the oral confession to Slattery, appellant was told the FBI had been notified and would arrive later.

About 3:00 p. m. FBI Agent Barron came to police headquarters. He conferred with Slattery.⁵ At the hearing on the motion to suppress Barron could not recall whether Slattery gave him a copy of appellant's written statement, but he did remember that Slattery told him "the facts of the case" and informed him that he already had obtained a statement from appellant admitting he had stolen the car in Nashville.

Barron began his conference with appellant at approximately 3:15 p. m. He gave appellant warnings which the district court held sufficient under Miranda. Appellant signed a waiver form, waiving the right to remain silent and the right to counsel. Actual interrogation began about 3:40 p. m. Barron told appellant to tell the truth, that any story he gave would be checked out and not to waste the time of both of them by telling any lies. Appellant made a full confession, written in longhand by Barron and signed by appellant about 5:15 p. m. Appellant testified that he confessed to Barron because "I figured I made one statement, I couldn't tell a lie about it now."

In denying suppression of the statement given to the FBI, the district judge found that while the first written statement given to Slattery was obtained in violation of appellant's constitutional rights, there was no evidence appellant had been put through any physical or psychological coercion, intimidation or fear by Slattery when obtaining it, and that in obtaining the second written statement the FBI agent had fully advised appellant of his rights, and that appellant made the second written confession voluntarily and intentionally with full knowledge of his constitutional rights. Therefore, he concluded, the second written confession did not constitute "fruit of the poisonous tree" under the Wong Sun⁶ doctrine.

There was no showing that Harney was subjected to what the Supreme Court in Miranda described as "overt physical coercion or patent psychological ploys." 384 U.S. at 457, 86 S.Ct. at 1619. But Miranda requires the use of "adequate protective devices * * * to dispel the compulsion inherent in custodial surroundings." Id. at 458, 86 S. Ct. at 1619. The district court's conclusion that the statement to the FBI was voluntary and free of the taint of the earlier illegality was based at least in part on the erroneous conception that the earlier happenings had not been coercive. The written statement obtained by Slattery was violative of appellant's constitutional rights because...