Mapys v. United States, 10143.

Decision Date25 April 1969
Docket NumberNo. 10143.,10143.
Citation409 F.2d 964
PartiesAlan Ray MAPYS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Leslie L. Conner, Jr., Oklahoma City, Okl., for appellant.

John Quinn, U. S. Atty. (Ruth C. Streeter, Asst. U. S. Atty., on the brief), for appellee.

Before MURRAH, PICKETT and HOLLOWAY, Circuit Judges.

PICKETT, Circuit Judge.

Alan Ray Mapys, the appellant, was indicted and convicted in the United States District Court of New Mexico for the interstate transportation of a 1965 Oldsmobile automobile knowing the same to have been stolen, in violation of 18 U.S.C. § 2312, and sentenced to imprisonment for a term of three years. While being held by state officials on an open charge of murder, Mapys admitted that he stole the automobile in question in Houston, Texas and transported it to Albuquerque, New Mexico. On a pretrial motion the trial court suppressed this admission as evidence, but held that Mapys' later identification of the automobile and unsolicited statements to an F. B. I. agent relating thereto were admissible. The first question presented here is whether the identification of the automobile by Mapys and his unsolicited statements thereafter were compelled or impelled by the illegal confession, and therefore inadmissible in evidence.

The essential facts were: During the night of September 15-16, 1966 the Albuquerque police observed a 1965 Oldsmobile illegally parked adjacent to a vacant lot. The police removed the car and stored it at a private enclosed parking lot. The police investigation revealed that the automobile had been reported stolen in Houston, Texas a few days prior thereto. During the morning of September 16, 1966 Mapys and two associates were taken into custody for investigation in connection with a murder committed in Albuquerque. Mapys, upon being advised of his rights, refused to be interviewed by the police until after he had had an opportunity to consult an attorney. On the same day he appeared before a justice of the peace, where he again stated that he desired to consult an attorney and was advised that counsel would be appointed for him. After this appearance he was questioned by the local police, and without advice of counsel made an exculpatory statement in connection with the murder case. As a part of this statement, he admitted the theft of the Oldsmobile in Houston and its transportation to New Mexico. An F. B. I. agent acknowledged receipt of a copy of this confession, but was uncertain of the date on which he had received it. Three days later, while confined in the county jail, Mapys requested permission to obtain his clothing from the car. An undersheriff notified the F.B.I. agent, who arranged to be present at the parking lot where the car from which Mapys was to obtain the clothing was stored. The purpose of notifying the agent of these activities was to afford him an opportunity to obtain evidence that would implicate Mapys with the theft and interstate transportation of the car. At the parking lot, the F.B.I. agent displayed his credentials to Mapys, informed him that he was investigating the theft of a car from Houston, Texas, and adequately advised him of his rights. Without any direction from the deputy sheriff or the F. B. I. agent, Mapys located the stolen automobile and said, "This is the car we came here in, from Houston." The clothing was obtained and returned to the sheriff's office, where Mapys and his associates picked out the articles which belonged to each of them. Prior to leaving the parking lot, Mapys told the agent "that he would like to go into federal court on the Dyer Act, if possible, instead of going to state court." The F. B. I. agent returned to the sheriff's office with Mapys and sought to interview him. Mapys advised the agent that he would not discuss the case until he had an opportunity to consult with his attorney. No attempt was made to continue the interview, but Mapys again expressed his desire to be prosecuted in federal court on a Dyer Act violation. The following day the agent returned and was told by Mapys that he had not had an opportunity to consult his attorney. As a consequence, no attempt was made to interview him, but Mapys, without solicitation or questioning, asserted that his brother had not participated in the theft of the car and was not in it when it crossed the state line.

Relying upon the cases that enunciate the "fruit of the poisonous tree" doctrine,1 and particularly the recent case of Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047, it is contended that identification of the stolen car by Mapys and his unsolicited statements made thereafter should not have been admitted in evidence. No independent evidence connecting Mapys with the theft of the automobile or its interstate transportation was offered at trial. It is clear from Harrison that if the illegal confession impelled Mapys to identify the automobile or to make the extrajudicial statements, they were inadmissible. But all incriminating statements made after an illegal confession are not inadmissible. The connection between the unlawful conduct of police officers and the subsequent statements may "become so attenuated as to dissipate the taint" of preceding involuntary statements. Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. This later evidence is inadmissible only if it came about as a result of the existing illegality.2 Wong Sun v. United States, supra, at 488, 83 S.Ct. 407; Green v. United States, 10 Cir., 386 F.2d 953. This principle was recognized in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. In this kind of case the question of admissibility remains one of voluntariness and lack of coercion as determined by all the attendant facts and circumstances.3 Anderson v. United States, 10 Cir., 399 F.2d 753; Pece v. Cox, 10 Cir., 354 F.2d 913, cert. denied, 384 U.S. 1020, 86 S.Ct. 1984, 16 L.Ed. 2d 1044; Latham v. Crouse, 10 Cir., 338 F.2d 658, cert. denied, 380 U.S. 987, 85 S.Ct. 1361, 14 L.Ed.2d 280; cf. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, decided April 2, 1969.

Following an extensive pretrial hearing on a motion to suppress the trial court found that the questioned statements given to the F. B. I. agent and the identification of the automobile were voluntary. We think the record fully supports this finding. Mapys was never interrogated by the agent. He knew his right to have an attorney and exercised that right throughout. The evidence of the prosecution shows that Mapys' desire to go to the automobile and his unsolicited statements to the agent were in no way related to the confession made to state officers several days before. His statements were made in an attempt to assist his brother and to avoid a prosecution in state court. His request to be taken to the automobile was to satisfy his desire to obtain his clothing. Mapys' testimony to the contrary was rejected by the trial court. The F. B. I. agent could not prevent his...

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