Moll v. United States

• Decision Date: 29 August 1969
• Docket Number: No. 25653.,25653.
• Parties: Robert George MOLL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.2d 1233 (1969)

Robert George MOLL, Appellant, v. UNITED STATES of America, Appellee.

No. 25653.

United States Court of Appeals Fifth Circuit.

July 3, 1969.

Rehearing Denied August 29, 1969.

H. Robert Koltnow, Miami, Fla., for appellant.

William A. Daniel, Jr., Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before WISDOM, GODBOLD and SIMPSON, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant was convicted of interstate transportation of a stolen car under the Dyer Act. On appeal he claims that his arrest was illegal and that evidence seized in a search of his person incident thereto should have been excluded, that his post-arrest incriminating statements were the fruit of an illegal search of the stolen car, and that his confession to the FBI was not sufficiently corroborated by other evidence to be admissible.

The testimony at pre-trial hearings on motion to suppress, plus that at the trial, established that at approximately noon, July 6, 1967, a nurse employed at a Miami, Florida hospital discovered appellant, who was not a hospital employee, in an office at the hospital. His hand was in a purse which belonged to the nurse. The nurse-owner asked appellant what he was doing. He ran out of the room, pushing the nurse to get out, and then ran from the building. The nurse followed quickly, never losing sight of him. With the help of bystanders, appellant was apprehended outside the building and brought back to the main office of the hospital. Police were called and upon arrival were told what had happened. After asking appellant his name, they read to him from a card what purported to be a Miranda-type warning. The police required or requested appellant to empty his pockets on a desk, and the owner of the purse was asked if she could identify anything as belonging to her. She claimed none of the items from appellant's pockets. The articles were placed in an envelope and given back to appellant. He was taken to the police station.

Appellant arrived at the police station about 1:00 p. m. He was placed in a cell where he remained until approximately 3:00 p. m. when he was brought to an interrogation room for questioning concerning the alleged larceny at the hospital and other similar crimes recently reported. Prior to questioning he was given a Miranda warning. During the interrogation Detective Rafferty required appellant to empty the envelope of personal effects onto a table. Among the items was an automobile tag receipt for a Florida license for a 1959 Buick. Rafferty asked the whereabouts of the car, but appellant was unclear in his answers. Rafferty issued a pick-up order for the car with instructions to check the hospital parking lot. Approximately twenty minutes later a report came back to Rafferty that the license had been located at the hospital lot but that it was on a 1965 Ford station wagon rather than a 1959 Buick. Rafferty confronted appellant with this information. The trial judge concluded after the hearings on motion to suppress that at this point appellant admitted to Rafferty that he had stolen the Ford station wagon.

Rafferty went to the hospital parking lot and searched the station wagon. He ascertained the identification number of the car and discovered papers that showed the identity of the true owner. He then returned to the police station. His testimony, which the trial judge was entitled to accept, was that he did not question appellant further with regard to the car.

FBI Agent Dahl was called at approximately 6:00 p. m. He arrived at the police station at approximately 7:00 p. m., and, after warning appellant as required by Miranda, proceeded to question him regarding the Ford. Appellant gave Dahl a full statement describing his theft of the car in Illinois and his transportation of it to Florida. The statement was reduced to writing. Appellant read it, and signed it in the presence of Dahl and the local police.

Prior to his trial on the Dyer Act charge appellant filed a motion to suppress evidence obtained at various times during the afternoon of his arrest. After two very full and careful hearings on the motion the trial judge concluded that at the time of his arrest and at the time of his interrogation by local police and by Agent Dahl appellant was properly warned as required by Miranda. He concluded that the search of the car by Rafferty was illegal but that the statement given the FBI was not the fruit of that search because prior to the search appellant had admitted that he had stolen the car, this admission being the result of independent efforts of the police untainted by illegality. The court held that the tag receipt, which had been in appellant's pocket and then in the envelope, was admissible as the fruit of the search of appellant's person incident to a lawful arrest. He held the evidence obtained from the search of the car, including the identification number, inadmissible as the fruit of an illegal search.

I

Legality of the arrest

Appellant contends that he was illegally arrested and that all evidence which is the fruit thereof should have been excluded. Since appellant was arrested in Florida for a state offense, we look to Florida law, insofar as it is not violative of the Constitution, to determine the validity of his arrest.¹

The term "arrest" has been defined by the Florida courts as "the apprehension or taking into custody of an alleged offender in order that he may be brought into the proper court to answer for a crime." Range v. State, 156 So.2d 534, 536 (Fla.App.1963).² Appellant was first taken into custody by the nurse and bystanders who caught him at the hospital, and the purpose of their custody was to bring him before the proper authority to answer for a crime. The arrest, therefore, occurred at the time the private citizens apprehended appellant.

Florida follows the common law with regard to arrests by private citizens. Dorsey v. United States, 174 F.2d 899 (5th Cir.1949); Marden v. State, 203 So.2d 638 (Fla.App.1967); Collins v. State, 143 So.2d 700 (Fla.App. 1962) (conviction reversed on other grounds); Poole v. State, 129 Fla. 841, 177 So. 195 (1937), appeal dism'd, 303 U.S. 619, 58 S.Ct. 611, 82 L.Ed. 1084 (1938); Fla.Stat.Ann. § 775.01 (1965). Under the common law, when a felony actually has been committed, a private citizen may arrest a person whom he reasonably believes to have committed the felony.³ A private person may arrest for a misdemeanor only if it was committed in his presence and it involved a breach of the peace. See generally 4 Wharton, Criminal Law and Procedure §§ 1601-03; 5 Am.Jur.2d, Arrest §§ 34-36; 6 C.J.S. Arrest § 8.

Appellant was observed by the nurse in the commission of what was, at a minimum, the misdemeanor of attempted larceny,⁴ accompanied by a breach of the peace when he attempted to escape. See 6 C.J.S. Arrest § 8 c, at pp. 607-608; 11 C.J.S. Breach of the Peace § 2, at 819. The citizen's arrest was legal. Even if the citizens arrest were faulty — and we hold it was not — the officers had sufficient cause to arrest without a warrant for the felony of larceny which they had reasonable grounds to believe had been committed by appellant outside their presence. F.S.A. § 901.15 (Supp.1969). The hand in the purse, the flight, the assault by pushing the nurse, the chase and capture, were sufficient to constitute probable cause for the police to take appellant into custody, although after the initial search, conducted after the police arrived and took charge, nothing from the purse was found in appellant's possession.

Since appellant was legally arrested, it is axiomatic that the evidence turned up by a reasonable search of his person made incident to the arrest was admissible at his trial. The fact that the search was conducted by someone other than those who made the arrest is of no significance. O'Neal v. United States, 411 F.2d 131 (5th Cir.1969).⁵

II Admissibility of Appellant's Oral and Written Statements

Appellant was given Miranda-type warnings on at least three occasions — by the police when they arrived at the hospital, by Detective Rafferty at the police station, and by FBI Agent Dahl. No attack is made on the warning given by the FBI agent prior to obtaining the written statement (and the record shows that it was sufficient). But appellant urges that he was improperly warned at the time of his arrest and prior to interrogation by the local police, and, invoking Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he claims that the oral admission to the local police that he had stolen the car, and the full written statement given the FBI, were inadmissible.⁶

Under Miranda the burden of proving that proper warnings were given is on the government. 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. This burden was not met with regard to the warning given by the local police at the hospital. While there was testimony that the police officers read to appellant a card concerning his rights, the evidence does not demonstrate that a constitutionally adequate warning was given. The government's burden may not be met by presumptions or inferences that when police officers read to an accused from a card they are reading Miranda warnings or that what is read, without revelation of its contents, meets constitutional standards.

Although we conclude that the initial warning, given at the hospital, was not proved adequate, there was no prejudice to appellant therefrom. A Miranda warning is not prerequisite to validity of the search incident to arrest. The trial court correctly concluded that the second warning (by Rafferty, at the police station) complied with the requirements of Miranda. There was not shown to be any interrogation between the first warning and the second warning, nor was any statement made by appellant during this period introduced at trial.

Appellant also urges that his written statement should have been excluded...