McFadden v. Garraghty

• Decision Date: 08 June 1987
• Docket Number: No. 85-6148,85-6148
• Citation: 820 F.2d 654
• Parties: Richard Earl McFADDEN, Sr., Appellant, v. D.A. GARRAGHTY, Warden, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 654

820 F.2d 654

Richard Earl McFADDEN, Sr., Appellant, v. D.A. GARRAGHTY, Warden, Appellee.

No. 85-6148.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1987.

Decided June 8, 1987.

Michael O. Spivey, Student Counsel (Steven Goldblatt, Director, Appellate Litigation Clinical Program, Georgetown University Law Center, Samuel Dash, Director, Washington, D.C., Ellen Pearlman, Appellate Law Fellow, Lesley Anne Fair, Appellate Law Fellow, Ralph C. Voltmer, Student Counsel, on the brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Va., Thomas D. Bagwell, Sr. Asst. Atty. Gen., Richmond, Va., on the brief), for appellee.

Before RUSSELL and WILKINS, Circuit Judges, and TIMBERS, Senior Circuit Judge for the Second Circuit Court of Appeals, sitting by designation.

TIMBERS, Circuit Judge:

Richard E. McFadden ("appellant"), a state prisoner, appeals from a judgment entered February 6, 1985 in the Western District of Virginia, James H. Michael, Jr., District Judge, dismissing his petition for a writ of habeas corpus. The petition, brought pursuant to 28 U.S.C. Sec. 2254 (1982), sought relief on three grounds: first, that appellant's conviction was obtained by the use of coerced confessions; second, that the conviction was obtained by the use of information stemming from an illegal arrest; and, third, that the conviction was obtained in violation of his Fifth Amendment ¹ privilege against self-incrimination. The court held that the Fifth Amendment did not require suppression of the confessions challenged by appellant because, even if there had been a violation of the rule of Edwards v. Arizona, 451 U.S. 477 (1981), which prohibits the continuation of interrogation once an accused requests counsel until counsel is present or the accused initiates communication, appellant's request for counsel was "dissipated" due to breaks in custody. The court also deferred to the state courts' findings on the voluntariness of the confessions.

On appeal, appellant argues, first, that his confession of April 29, 1981 was a result of police reinterrogation after appellant's assertion of his right to counsel, in violation of the Edwards rule; second, that the confession obtained illegally on April 29 tainted subsequent confessions and consents to search given during the ensuing days of April 30 through May 6; and, third, that the confessions and consents given on May 1 and May 6 were involuntary.

We hold that appellant's confession of April 29 was obtained in violation of Edwards because the police did not honor appellant's request for counsel and reinterrogated him in the absence of appellant's initiation of any communication with them. We also hold that, because appellant was twice permitted to leave the magistrate's office after questioning, he was not in continuous custody. Moreover, he was interrogated after a passage of time, in a changed place, by different law enforcement authorities; the initial violation of Edwards therefore did not taint the subsequent confessions and consents to search. We further hold that appellant's confessions and consents to search were voluntary under the Fifth Amendment.

We affirm.

I.

Appellant is a prisoner of the State of Virginia. He was convicted on October 9, 1981 of crimes arising from a break-in at the Humpback Rock Visitors' Center ("Visitors' Center") in Augusta County in April 1980 and a break-in and arson of the Visitors' Center in April 1981. In 1980 the Visitors' Center was broken into and an antique plane, a calculator and a flag were stolen. In 1981 the Visitors' Center again was broken into and publications were stolen. The Visitors' Center also was vandalized and set on fire as part of the 1981 incident. Appellant was convicted of breaking and entering, petit larceny, grand larceny and arson. On the convictions of breaking and entering, grand larceny and arson, he was sentenced to eleven years at hard labor in the state penitentiary. On the conviction of petit larceny, appellant was sentenced to twelve months in jail. He is presently incarcerated.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

At approximately 8:00 P.M. on April 29, 1981 appellant, an institutional police officer employed by the Lynchburg Training School and Hospital, was met at his home by Deputy Brown, a member of the Amherst County Sheriff's Department. Brown, a personal friend of appellant, indicated that he wished to question him regarding some fires which had been set in Amherst County. Brown informed appellant that the questioning was to take place in the magistrate's office in Madison Heights and declined appellant's request to drive himself to that office. Brown then drove appellant to the office, where they were met by Investigator Morris of the Virginia Division of Forestry. After advising appellant of his constitutional rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966), Morris began interrogating appellant concerning the Amherst County fires. The record indicates that, after approximately ten minutes of questioning, appellant stated, "I'm not going to say any more. I want to see a lawyer." Morris immediately ceased questioning appellant and left the room. He then informed Brown, waiting outside, that appellant had asserted his right to counsel.

Brown entered the room and asked appellant if he would speak with him about the fires. Again, appellant refused to speak about the incident, indicating that he desired the assistance of counsel. The conversation then turned to their jobs as police officers and their long-time friendship. Brown next warned appellant, falsely, that he could be charged as a police officer for withholding evidence. After this, Brown inquired whether appellant had anything further to say, to which appellant responded, "Let me think about it." As Brown prepared to leave the room, appellant told him he would speak with him. Brown advised appellant of his Miranda rights. Appellant signed a waiver of them. He then made a statement concerning the setting of the Amherst fires.

At approximately 9:00 P.M. Brown drove appellant home. Near midnight, Brown returned to appellant's home, woke him up, and drove him back to the magistrate's office for more questioning about the Amherst County fires. At the commencement of this second interrogation appellant again was advised of his Miranda rights. Appellant waived his rights, was questioned for fifteen minutes, and then was driven home.

Sometime after noon on the next day, April 30, appellant responded to a telephone call from another Amherst County Deputy by reporting to the Amherst County Sheriff's Office. Upon his arrival, appellant was arrested and charged with setting the fires in Amherst County. Sometime during that afternoon, appellant was arraigned and requested counsel. Counsel was appointed at the arraignment. McFadden v. Commonwealth, 225 Va. 103, 106, 300 S.E.2d 924, 925 (1983).

We are unable to discern from the record whether appellant spoke with his appointed counsel before 4:00 P.M. on that day, when Chief Deputy Dixon, of the Nelson County Sheriff's Department, arrived at the Amherst County Sheriff's Office to interrogate appellant about the break-in of a rescue squad building in Nelson County. Dixon, also a friend of appellant, advised appellant of his Miranda rights. Appellant signed a waiver of them. After approximately thirty minutes interrogation, Dixon departed with appellant's executed consent form which authorized the police to search his vehicle in connection with the Nelson County break-in. Dixon returned one hour later, at which time he again advised appellant of his Miranda rights. Appellant again signed a waiver of them. Thereafter he gave a statement about the Nelson County break-in. Using one of the Amherst County Sheriff's Department consent forms, the Nelson County deputy then obtained appellant's written permission to search his residence.

At 5:00 A.M. on the morning of May 1, Dixon, and other officers from the Amherst County Sheriff's Department and the Division of Forestry, commenced the search of appellant's home. Among other things, the officers seized a calculator and a wooden airplane. These later were found to have been stolen during the 1980 break-in of the Visitors' Center in Augusta County. After the search of appellant's home, the Nelson County deputy recalled that while searching appellant's car he had observed pamphlets from the Visitors' Center which later were found to have been taken during the break-in and arson of the Visitors' Center. These crimes had been committed approximately three weeks earlier.

At 8:00 A.M. Dixon returned to question appellant regarding the recent break-in and arson at the Visitors' Center. At the commencement of the interrogation, Dixon again advised appellant of his Miranda rights. Appellant waived them orally. Appellant then admitted participation in the recent break-in and arson at the Visitors' Center.

Five days later, on May 6, Investigator Fisher of the Augusta County Sheriff's Department arrived at the Amherst County Sheriff's Office to interrogate appellant with regard to the 1980 break-in of the Visitors' Center. Fisher advised appellant of his Miranda rights prior to questioning him. Appellant orally waived them and confessed to the 1980 crime.

On May 26, an indictment was filed charging appellant with the 1980 break-in and 1981 break-in and arson of the Visitors' Center. Appellant filed a pre-trial motion for an order suppressing his statements of May 1 and May 6 and the consents to search of April 30. He argued that they were the result of police overreaching and therefore were involuntary. After two suppression hearings, on September 25 and October 9, the state trial court denied the motions. Appellant then was tried and convicted on October 9.

Appellant appealed to the Virginia Supreme Court. He again argued that his...