Hayes v. United States, 446-69.

• Decision Date: 26 January 1970
• Docket Number: No. 446-69.,446-69.
• Citation: 419 F.2d 1364
• Parties: Herbert Boyd HAYES, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

419 F.2d 1364 (1969)

Herbert Boyd HAYES, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 446-69.

United States Court of Appeals Tenth Circuit.

December 30, 1969.

Rehearing Denied January 26, 1970.

Don Jemison, Oklahoma City, Okl., for appellant.

John E. Green, Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.

Before LEWIS and HILL, Circuit Judges, and LANGLEY, District Judge.

HILL, Circuit Judge.

Appellant petitioned the United States District Court for the Western District of Oklahoma for relief under Title 28 U.S.C. § 2255 and his motion to vacate sentence was denied after an evidentiary hearing. Appellant seeks to set aside a four-year sentence he is serving which was imposed after a jury convicted him on a one-count information charging interstate transportation of a stolen vehicle in violation of Title 18 U.S.C. § 2312. Appellant's motion to vacate is grounded upon alleged violations of his constitutional rights which he contends tainted the evidence presented against him at his trial.

In summary, appellant specifically contends: 1) he was illegally arrested and jailed by the Lawton City Police; 2) the car he was driving at the time of his arrest was illegally searched by the police; 3) the unconstitutional search produced the car's serial number and license tag number which was used to determine that the car was stolen; 4) that such information was used by an agent of the F.B.I. to induce him into making incriminating statements which were used against him at his trial; 5) the F. B.I. agent violated Rule 5(a) of the Federal Rules of Criminal Procedure by interrogating him while he was in the city jail and prior to taking him before a United States Commissioner; 6) his testimony at his preliminary hearing before the United States Commissioner was illegally obtained because he was not warned at that time that his testimony could be used against him at trial; 7) his testimony at the hearing was induced by the fact that he felt he had to respond to the testimony of an F.B.I. agent who had previously interrogated Hayes. Lastly, he additionally contends here that the trial court on the § 2255 hearing erred in refusing to permit him to fully develop the facts surrounding each violation of the Constitution and the laws of the United States, all of which were related to evidence or testimony introduced at his criminal trial.

The facts material to this case began on January 25, 1968, when Lawton, Oklahoma police detectives approached and stopped Hayes as he was backing a 1967 Dodge automobile out of a parking place in downtown Lawton. Appellant had two passengers in the car with him by the names of Spears and Jackson. The detectives approached the car and its occupants because an informant had reported that the car could be stolen, that the occupants had purchased a shotgun, and that they should be checked out. After some questioning and the failure of Hayes to produce any evidence of ownership of the car, the detectives told Hayes that they thought the car was stolen. Hayes, upon the request of the police detectives, followed them to the Lawton Police Headquarters for further questioning and checking. Upon arrival at the police station, Hayes and his companions were taken inside for further questioning. The government's evidence is that they were advised of their rights. Shortly after appellant arrived at the police station, the arresting detective asked Hayes if he would let the detective look into the 1967 Dodge. Hayes said he could; upon looking into the car, the detective obtained the car's serial number from the door post, and on that occasion also procured the license number. Subsequently, Hayes was booked on the charge of investigation of auto theft, and the serial number and license tag number were relayed by teletype to determine whether the car was stolen. The answer was affirmative.

The next day, January 26, Hayes was first taken to a medical clinic for some personal medical attention and thereafter was taken by police officers for arraignment before a local magistrate. Upon arrival at the courthouse the officers found it closed due to the death of a public official, and Hayes was not then arraigned on a state charge. In the meantime, the F.B.I. had been advised of appellant's arrest and that the car was reported stolen from Illinois. That afternoon an F.B.I. agent arrived at the city jail to interview the trio. Hayes was the last questioned, he was advised of the Miranda rights and he signed the customary form acknowledging advice of his rights and waiver of counsel. The F.B.I. agent interrogated Hayes with the aid of the arresting city detective. When the F.B.I. agent confronted Hayes with the knowledge that the car was stolen, he admitted that he knew it was stolen. Hayes now contends that this confrontation induced him into making the admission. The questioning was concluded at about 6:00 P.M., January 26.

On January 27, 1969, a complaint was filed by the F.B.I. agent before a United States Commissioner and an arrest warrant was issued on Hayes. Appellant was brought before the Commissioner and advised of his rights as required by Rule 5, F.R.Crim.P. Later, Hayes retained an attorney and requested a preliminary hearing before the Commissioner. At this hearing the F.B.I. agent testified concerning Hayes' previous admission. In response, Hayes took the witness stand, testified in his own behalf and in the course of his testimony made further admissions which were used against him at his trial.

At trial, Hayes did not take the witness stand. The admissions made to the F.B.I. agent were introduced, and objection was made to them based upon a failure to give the Miranda warnings. The court forthwith held an evidentiary hearing outside the jury's presence in which the F.B.I. agent but not Hayes testified. The admissions were subsequently allowed into evidence and Hayes' admissions at the preliminary hearing were also introduced at trial. Ultimately, the jury convicted Hayes. He did not perfect a direct appeal of his conviction. Instead appellant thereafter filed a pro se motion in the court below under 28 U.S.C. § 2255 alleging 1) Miranda violations, and 2) an unnecessary delay in taking appellant before the Commissioner in violation of Rule 5(a), F.R.Crim.P. The court denied a hearing on the Miranda question since such a hearing had been held during the criminal trial and the court had ruled there had been no Miranda violation. A hearing on the Rule 5 complaint was ordered and counsel was appointed for Hayes. Thereafter his § 2255 motion to vacate was amended to include illegal search, illegal seizure, illegal working agreement between the Lawton police and the F.B.I., and interrogating Hayes before he was taken before a United States Commissioner.

Appellant first urges that his arrest was illegal and unconstitutional because the Lawton police detectives lacked sufficient probable cause to make the arrest. However, the validity of the arrest, without more, is not grounds for collateral attack in a proceeding under 28 U.S.C. § 2255.¹ This rule, well established in our cases, is not abrogated by the recent case of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) because that case dealt with a § 2255 attack upon an illegal search which produced evidence which was used to convict Kaufman. The holding is very clear in dealing only with a search and seizure, and the basic foundation of the case is that the illegal search resulted in evidence...