Hollingsworth v. United States, 7343.

• Decision Date: 08 August 1963
• Docket Number: No. 7343.,7343.
• Parties: Brian Mattison HOLLINGSWORTH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

321 F.2d 342 (1963)

Brian Mattison HOLLINGSWORTH, Appellant, v. UNITED STATES of America, Appellee.

No. 7343.

United States Court of Appeals Tenth Circuit.

August 8, 1963.

COPYRIGHT MATERIAL OMITTED

Frank L. Beckwith, Westminster, Colo., for appellant.

John W. Raley, Jr., Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., was with him on the brief), for appellee.

Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.

PHILLIPS, Circuit Judge.

Hollingsworth, having duly waived prosecution by indictment, was charged by information containing two counts with violation of 26 U.S.C.A. § 5851 and 15 U.S.C.A. § 902(e). The first count charged that Hollingsworth on July 15, 1962, in the Western District of Oklahoma, "did unlawfully possess a firearm, * * * to wit: a .303 caliber, * * * Rifle * * * with a stock sawed to a pistol grip only, with a barrel sawed-off to 8 inches in length, and with an overall length of less than 26 inches" on which "the making tax" of $200 imposed by 26 U.S.C.A. § 5821 had not been paid prior to the making of said firearm and that as to which no "written declaration of intention to make" had been filed prior to the making of said firearm, as required by 26 U.S.C.A. § 5821.

The second count charged that Hollingsworth, on July 15, 1962, in the Western District of Oklahoma, "having been convicted of a crime punishable by imprisonment for a term exceeding one year, did transport in interstate commerce from Fort Worth, Texas, to Oklahoma City, Oklahoma, a certain firearm, to wit: a .303 caliber * * * Rifle * * * with a stock sawed to a pistol grip only, with a barrel sawed-off to 8 inches in length, and with an overall length of less than 26 inches."

He was tried, convicted and sentenced on both counts and has appealed.

On July 15, 1962, Oklahoma City Police Officers Swindler and Smith, hereinafter referred to as the police officers, had received information that Hollingsworth had committed a burglary in Oklahoma City and went to an apartment above the Rose Glow, a private club, in Oklahoma City. They there found Hollingsworth lying across a bed. They asked him his name and if he was employed. He replied that he was not employed and he had not worked during the period of 10 days he had been in Oklahoma City. They then arrested him on a charge of vagrancy and took him to Lt. Mosshart's office in the Oklahoma City Police Station. They there questioned him during intervals aggregating about 45 minutes. They first questioned him about the burglary they had been informed he had committed in Oklahoma City. Shortly after the questioning started, he stated he was probably wanted in Fort Worth, Texas, due to the fact that he had been shooting pay telephone boxes. Thereupon, Lt. Mosshart talked by telephone with Sgt. Koons of the Fort Worth Police Department and was informed by the latter that the Fort Worth Police Department had been looking for Hollingsworth relative to the burglary of pay telephone coin boxes in which a sawed-off Enfield Rifle was used to blow off the locks. Koons informed Mosshart of the make, license number and color of an automobile in which they (referring to Hollingsworth, Hollis Gene Mooney and Donna Jean High) had been seen in Fort Worth and that they might have a gun in the automobile in Oklahoma City and requested Mosshart to check to see if they had the gun. The police officers then looked for the automobile and found it in the parking area around the Rose Glow private club. They searched the automobile and found a sawed-off Enfield Rifle wrapped in a work shirt in the turtle hull of the automobile and other articles not here material.

Hollingsworth, one Mooney, who was charged as a codefendant in the first count of the information, and Donna Jean High had traveled from Fort Worth to Oklahoma City in the automobile. Hollingsworth had no interest in the automobile. It was owned either by High, or by High and Mooney.

After the search, the police officers returned to the police station and continued their questioning of Hollingsworth. They asked him to describe the gun he had used in shooting telephone coin boxes. He said it was a short sawed-off rifle. They made no inquiry relative to interstate transportation of the firearm, nor of any prior conviction of Hollingsworth of a crime punishable by imprisonment for a term exceeding one year. They then booked him, took his picture and his finger prints. It was not until then they advised Hollingsworth they had found the gun in the automobile and showed him the gun. Hollingsworth then stated "that was the gun that they had used." He further stated to the police officers that he had come to Oklahoma City to "round up some girls to work as prostitutes and pull a good `heist' but it didn't come off." By "heist" he meant a large burglary.

On Monday morning, July 16, 1962, Robert E. Hinds, an investigator for the United States Treasury Department, went to the police station at Oklahoma City for a routine check. He was informed by Lt. Mosshart that Hollingsworth was being held on a vagrancy charge, but that Hinds might want to question him concerning a short rifle and Hinds was given the police report on Hollingsworth by Mosshart. The contents of the report do not appear in the record. Hinds testified that the information he received before he questioned Hollingsworth was not sufficient to form a basis for a federal charge; that he questioned Hollingsworth at the police station in the presence of Mosshart about 1:30 p. m., July 16; and that when he questioned Hollingsworth he was being held on a state and not a federal charge.

Before Hinds had questioned Hollingsworth, neither he nor the police officers nor Lt. Mosshart had any information that Hollingsworth had not filed the declaration of intent to make or had not paid the tax, as charged in the first count of the information, or that Hollingsworth, before the transportation of the gun, had been convicted of a crime punishable by imprisonment for a term exceeding one year. They had cause to suspect only that Hollingsworth might have committed a federal offense. They had no knowledge of facts or information which they could have set forth in a complaint filed with the United States Commissioner, which would have afforded a sufficient basis upon which a finding of probable cause that a federal offense had been committed by Hollingsworth could have been made by the United States Commissioner.

The interrogation of Hollingsworth by Hinds was commenced at the questioning room in the men's jail on the third floor, but the day was hot and after a few minutes, at Mosshart's suggestion, they went down to his office, which was air conditioned. Before commencing the questioning Hinds introduced himself to Hollingsworth and explained he was an investigator for the Alcohol and Tobacco Tax Division of the United States Treasury Department and advised Hollingsworth that he had a constitutional right not to make any statement and that any statement he made would be used against him. Hinds made no threats, inducements or promises to Hollingsworth. Hinds first asked Hollingsworth if Brian Hollingsworth was his correct name and then asked him to go ahead and tell him everything generally. Hollingsworth, almost immediately after the questioning commenced and while they were still on the jail floor, told Hinds that he had been residing in Fort Worth, Texas, and while there had gone to a store in Fort Worth and purchased a .303 caliber British Rifle for the price of $18, in the name of James Braughn; that after such purchase he took the gun to his residence in Fort Worth and sawed off the stock and barrel of the gun. In the course of the questioning, which lasted about 45 minutes, Hollingsworth further told Hinds that he had been convicted of aggravated assault at Miami, Florida, for which he had received two years' probation; that shortly after he acquired the gun and modified the stock and barrel he decided to come to Oklahoma City, and as Donna High had told him she was coming to Oklahoma City, he put the gun in the trunk of her car, caught a bus and came to Oklahoma City; that after a few days High and Mooney arrived in Oklahoma City and took the gun out of the car and later replaced it in the car. Hollingsworth further stated to Hinds that he was under indictment for a stolen money order, for possession of barbiturates, and for assault on an officer and armed robbery, but had not yet been tried for such offenses.

At the hearing on the motion to suppress, hereinafter referred to with more particularity, Hinds testified that after Hollingsworth had told him on the jail floor about his purchase of a .303 British Rifle in Fort Worth and his alteration of the rifle by sawing off the stock and barrel and after they had gone down to Mosshart's office he showed Hollingsworth the specific gun that had been seized by the police officers and Hollingsworth said it was his gun, that he had used it to blow locks on pay telephones, and in response to a question of how the gun "got here" he said "it had come up in the automobile from which it was removed."

Hinds was not authorized to file a complaint before a United States Commissioner charging Hollingsworth with a federal offense until he had received authority to do so from the United States Attorney. He obtained this authority in the morning of July 17, 1962. A complaint was filed with the United States Commissioner charging Hollingsworth with a federal offense. About 1:00 p. m., July 17, the city police released Hollingsworth to federal officers and thereupon he was taken before the Commissioner and the warrant issued on the complaint was served on him.

Counsel for Hollingsworth filed a motion to suppress the evidence obtained by the seizure, including the rifle seized by the city police, on the ground that the search and seizure was unreasonable and to suppress the evidence of the statements made by Hollingsworth to the city police and to Hinds...