Schoepflin v. United States

• Decision Date: 02 January 1968
• Docket Number: No. 19992.,19992.
• Parties: Emil SCHOEPFLIN and William Smith, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

391 F.2d 390 (1968)

Emil SCHOEPFLIN and William Smith, Appellants, v. UNITED STATES of America, Appellee.

No. 19992.

United States Court of Appeals Ninth Circuit.

January 2, 1968.

COPYRIGHT MATERIAL OMITTED

B. Ray Anderson, Walnut Creek, Cal., for William Smith.

William S. Hochman, San Francisco, Cal., for Emil Schoepflin.

William B. Shubb, Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

HAMLEY, Circuit Judge:

Emil Schoepflin and William Smith appeal from their conviction, following a joint jury trial, of robbing a federally-insured bank in violation of 18 U.S.C. § 2113(a) (1964).

On November 19, 1964, at approximately 8:25 a. m., the Fulton-Fair Oaks Branch of the Bank of America in Sacramento, California, was robbed by two men wearing nylon stockings over their heads. Smith was arrested at his apartment in a duplex early the following morning. Part of the stolen bank money and a nylon stocking were found on the premises. Schoepflin was not apprehended until two months later when he was caught in a stolen automobile following a "hot pursuit" chase. More of the stolen money and the guns believed to have been used in the robbery were found in the trunk of the car.

Because both defendants claim distinct and unrelated errors, we will separately discuss the contentions of each.

I. Schoepflin's Appeal

Schoepflin's first contention is that, prior to in-custody interrogation during which a confession was obtained, the agent for the Federal Bureau of Investigation who did the questioning failed to give Schoepflin the warning he was entitled to under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.¹ Accordingly, he argues, the trial court erred in overruling his objection to reception of the confession in evidence.

The only warning which Escobedo requires is that the person being questioned has an absolute constitutional right to remain silent. 378 U.S. at 490-491, 84 S.Ct. 1758; Johnson v. State of New Jersey, 384 U.S. 719, 733-734, 86 S.Ct. 1772, 16 L.Ed.2d 882. Schoepflin was given that warning.

Moreover, under Escobedo, this warning need not be given unless all of the following circumstances exist: (1) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, (2) the suspect has been taken into police custody, (3) the police carry out a process of interrogation that lends itself to eliciting incriminating statements, and (4) the suspect has requested and been denied an opportunity to consult with his lawyer. At the time of his interrogation Schoepflin did not request an opportunity to consult with his lawyer and was therefore not entitled to the warning referred to above, as the law stood under Escobedo. See Manning v. State of California, 9 Cir., 378 F.2d 357.

We conclude that the trial court did not err in receiving in evidence Schoepflin's confession.

Schoepflin argues that the trial court erred in admitting into evidence the bank money and guns found in the trunk of the car in which Schoepflin was arrested. He contends that the warrantless search of the car trunk was not incident to his arrest and was therefore illegal.

On the evening of January 19, 1965, a stolen car was observed on the highway in Redwood City, California. A "hot pursuit" by police and sheriff units commenced, and the stolen car was finally brought to a stop after it crashed into a "running road block" of police cars. Schoepflin, the sole occupant of the car, was arrested and taken to a nearby hospital for treatment of minor injuries. While he was at the hospital Schoepflin confessed to the bank robbery.

Meanwhile, a state highway patrolman arranged to have the vehicle towed off the highway to a private garage in Burlingame, California, where it was impounded by the state highway patrol. Some two hours later an agent of the Federal Bureau of Investigation, proceeding on the basis of Schoepflin's oral confession to the bank robbery, searched the car. No search warrant was obtained. In the trunk of the car the agent found part of the stolen bank money and the two guns believed to have been used in the robbery. The admission of these articles into evidence at the trial forms the basis of this argument on appeal.

On the motion to suppress, Schoepflin argued that the warrantless search was not incident to his arrest and therefore the evidence should be excluded. The trial court denied the motion on the ground that since the car was stolen and Schoepflin did not have legal possession of the car, he did not have standing to object to the search and seizure.

Had the police searched this automobile on the highway at the place where Schoepflin was arrested, without first seizing it as a stolen vehicle, Schoepflin would have had standing to object to that search. Cotton v. United States, 9 Cir., 371 F.2d 385. But no search was made at that time. There was then only a seizure of the car as a stolen vehicle, incident to Schoepflin's immediately preceding arrest. Schoepflin had standing to object to that seizure as not incident to a lawful arrest. However, he made no such objection and, in any event, the arrest was lawful.

The only search that occurred, and the one that Schoepflin objects to, was made at the private garage where the vehicle had been impounded by the state highway patrol. We need not decide whether Schoepflin has standing to challenge that search because, in our opinion, the search was not violative of Schoepflin's Fourth Amendment rights.²

In so holding we have in mind that it was a warrantless search. We also agree with Schoepflin that, in view of the time lag and change of location of the automobile following the arrest, the search was not incident to Schoepflin's arrest on the highway. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

Since the automobile had been reported as stolen, the police were authorized to seize and impound the vehicle for the rightful owner. See Calif. Vehicle Code §§ 22651, 22850 and 22852 (1960).³ In performing this duty, the police were acting as agent for the owner rather than as agent for the arrested person, as in Preston. At the time the search was made, Schoepflin had no interest therein, possessory or otherwise.⁴

Coupled with this circumstance is the further fact that the search was related to the reason Schoepflin was arrested. It is common knowledge that stolen automobiles are often used in committing bank robberies. Moreover, at the time of the search Schoepflin had confessed to bank robbery and was then, in effect, under arrest for the additional crime of bank robbery. In Preston, on the other hand, the driver had been arrested for vagrancy, not car theft or any other crime, and the subsequent search had no relation to the charge of vagrancy. It was but a fishing expedition to determine whether the automobile contained evidence of any other crime.

Our case is thus not only distinguishable from Preston, in which the search and seizure were held to be unlawful, but is closely analogous to Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, in which the legality of the search and seizure was upheld.

In Cooper, police arrested the defendant for sale of narcotics. They then seized and impounded the automobile which had been used to carry on this activity. This was done pursuant to a state statute which required that a vehicle which had been used in committing an offense against the state narcotic laws be seized and "held as evidence until a forfeiture has been declared or a release ordered." Calif. Health & Safety Code § 11611 (1955). A week after the seizure police made a warrantless search of the impounded vehicle and found additional evidence of a violation of the state narcotic laws. The Supreme Court held that, under these circumstances, the case was distinguishable from Preston, and the search was reasonable under the Fourth Amendment.

It is true that in Cooper the search was somewhat more directly related to the reason the defendant was arrested than in our case. On the other hand, in Cooper the arrested person had, at the time of the search, an ownership interest in the vehicle subject only to possible forfeiture, whereas in our case Schoepflin had never had any ownership interest in the car and his possessory interest had been terminated by the valid seizure.

Under all of the indicated circumstances and "the total atmosphere of the case," United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653, we hold that the search here in question was reasonable within the meaning of the Fourth Amendment. The trial court did not err in admitting the evidence seized in the trunk of the stolen car.

Finally, Schoepflin objects to the trial court's failure to grant a mistrial after an agent of the Federal Bureau of Investigation, in responding to a question on direct examination as to what "else" Schoepflin had told him, testified, "(h)e told me that he met Willie Smith in San Quentin. * * *" At the time the remark was made, counsel for Schoepflin objected and moved for a mistrial. The trial court denied the motion but instructed the jury to disregard the witness' remark. It does not appear that the statement was elicited by the Government in bad faith.

Counsel for Schoepflin argued in the trial court that the effect of this remark by the F.B.I. agent was to preclude counsel from arguing to the jury that there was no evidence in the case linking Schoepflin to his co-defendant Smith.

However, this inadvertent remark, followed by an instruction for the jury to disregard the remark, could not have been any more prejudicial to Schoepflin's case than the Government's impeaching evidence, referred to below in discussing Smith's appeal, to the effect that Schoepflin and Smith had at one time occupied cells in San Quentin in close proximity to...