State of South Dakota v. Long, 71-1598.

• Decision Date: 24 August 1972
• Docket Number: No. 71-1598.,71-1598.
• Citation: 465 F.2d 65
• Parties: STATE OF SOUTH DAKOTA, Appellant, v. Steven R. LONG et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

465 F.2d 65 (1972)

STATE OF SOUTH DAKOTA, Appellant, v.Steven R. LONG et al., Appellees.

No. 71-1598.

United States Court of Appeals, Eighth Circuit.

Submitted March 13, 1972.

Decided August 24, 1972.

Rehearings and Rehearings Denied October 2, 1972.

COPYRIGHT MATERIAL OMITTED

William J. Srstka, Jr., Asst. Atty. Gen., Pierre, S. D., for appellant.

Robert A. Warder, Rapid City, S. D., for appellees.

Before GIBSON,^*HEANEY and ROSS, Circuit Judges.

Rehearings and Rehearings En Banc Denied October 2, 1972.

ROSS, Circuit Judge.

The State of South Dakota has appealed from a judgment entered by the United States district court, 336 F.Supp. 1360, granting writs of habeas corpus to Hale, Long and Tisdale on the grounds that their confessions were illegally obtained and because the State's attorney tape recorded a privileged communication between the three defendants and their counsel.¹We affirm the judgment as to Long, but reverse as to Hale and Tisdale.

On March 11, 1968, the cabin of Forrest A. Koos, located in Spearfish Canyon near Spearfish, South Dakota, was broken into.A portable television and other personal property were taken.The next day, the sheriff of Lawrence County, Richard McGrath, investigated the break-in and observed tire tracks of a "compact car" together with footprints which appeared to be made by "football or track shoes" near the scene.Based upon another lead, the sheriff advised acquaintances in the canyon to be on the lookout for a red Volkswagen with Iowa plates, county number 77.

The following day, March 13, Bell, a part-time deputy who ran a filling station near the canyon, called the sheriff and told him that he had just filled the gas tank of a red Volkswagen, with 77 county Iowa plates, that the car contained three youths, and that it was heading into the canyon.The sheriff radioed two of his deputies in the canyon to intercept the car and bring the boys into Spearfish so that he could talk to them.Long, Tisdale, and another youth named Johnson were in Long's Volkswagen when it was stopped.Long testified that after they were stopped, a deputy said, "We want to look in your car."When asked, "What for?", the deputy replied, "Because the sheriff wants us to search it."After the search, the three were told the sheriff wanted to talk to them, and they followed the deputies to the Spearfish Police Department.The car was again searched with Long's "consent," but the youths were not advised of their rights.

Because Long had to have his wrestling team picture taken at that time, the sheriff had deputy Palmer, who was in plainclothes, accompany him.The sheriff testified that he did not know why he failed to allow Long to go alone.Meanwhile, the sheriff accompanied Tisdale to the college, which all the defendants attended, and with Tisdale's permission, searched his dormitory room.No warnings were given Tisdale at that time, but no incriminating statements were made.Upon Long's return, with the deputy, from the picture taking session, the sheriff, with Long's permission, searched his room.In it he found a raincoat of the type taken from another cabin and some soccer shoes that had been wet.At that time the sheriff was certain Long was a "suspect."Then, the sheriff and deputy Palmer sat down with Long in his room and talked for thirty to forty-five minutes.The door was closed, although people kept opening it and looking in.

The sheriff used a fatherlike approach, and gained Long's friendship.As the sheriff acknowledged, he developed a "mutual trusting relationship" which continued throughout the remaining prearrest transactions.When Long decided to admit his part in the breakin, he was told by the sheriff that he did not have to say anything and that he had a right to an attorney.Deputy Palmer testified that the sheriff told Long, "You don't have to tell me a thing, and that anything you tell me I'd have to use against you."However, it is undisputed that the sheriff did not advise Long of his right to have an attorney appointed if indigent, or that he had a right to stop talking anytime he wished.

Long testified that he did not reveal the identity of the other individuals involved in the break-in at that first interrogation because he wanted to talk it over with them first.Long also testified that the sheriff told him: "We know a few things you don't think we know.We have a card up our sleeves."At the conclusion of the meeting, the sheriff told Long to bring the others involved, together with the stolen goods, to his office in Deadwood the following day.The sheriff and deputy Palmer then left.

All three defendants went to the sheriff's office the following afternoon, March 14, on their own volition, with the stolen TV and other articles.The sheriff did not advise them of their rights at this time.Long claims he asked the sheriff if they should call an attorney, but that the sheriff replied, "Boys, I just can't tell you."The sheriff could not remember saying that or whether Long asked the question.Long further claims it appeared to the three defendants that things would be worse for them if they refused to make the statements, and that it would be better for them if they threw themselves on the mercy of the sheriff and the court.

After talking to the defendants, the sheriff handed each of them a statement form, at the top of which was a list of their rights and an acknowledgment, which each defendant signed, that those rights had been explained to them.Below this explanation of their rights and signature, the defendants wrote out their statements themselves as the sheriff had told them to do.The sheriff testified that he did not know whether they read the top of the forms or not.Long admitted that he read the rights listed at the top of the form, but claimed he did not understand the legal consequences of those warnings.Although the statements were signed at the top, after the warnings, they were not signed at the end.After writing out their statements, the three defendants returned to the college.

At the trial, Mr. Heggatt, the State's attorney, examined the sheriff as to the contents of the statements.The court overruled objections thereto stating that the statements were being used only as memoranda to refresh the witness' recollection.The judge also found the statements to have been made by compulsion of conscience rather than any coercion on the part of sheriff McGrath.All three defendants testified and admitted their part in the burglary, but only after the sheriff had been permitted to testify concerning the confessions obtained from them.

CUSTODIAL INTERROGATION

Prior to a determination of whether the warnings given were adequate, we must determine whether there existed a custodial interrogation as contemplated by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694(1966)."By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."The Court, in Miranda, did note that all the cases involved there shared a salient feature— "incommunicado interrogation of individuals in police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights."Id. at 445, 86 S.Ct. at 1612.

The Supreme Court has held, of course, that a custodial situation need not be strictly limited to a police station.SeeOrozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 22 L.Ed.2d 311(1969)(boarding house room);United States v. Phelps, 443 F.2d 246, 247(5th Cir.1971)(place of business).On the other hand, a general "on-the-scene" or other non-coercive questioning conducted in the course of routine investigation is not encompassed by Miranda.SeeMiranda v. Arizona, supra,384 U.S. at 477, 86 S. Ct. 1602;United States v. Edwards, 444 F.2d 122, 123(9th Cir.1971);Utsler v. Erickson, 440 F.2d 140, 143(8th Cir.), cert. denied, 404 U.S. 956, 92 S.Ct. 319, 30 L.Ed.2d 272(1971);United States v. Tobin, 429 F.2d 1261, 1263(8th Cir.1970);United States v. Gibson, 392 F. 2d 373, 376(4th Cir.1968).With this in mind, we now examine the two occasions during which the damaging admissions were elicited.

Dormitory Room

Long was the only one who made admissions at the dormitory; although Tisdale had been questioned, he admitted nothing at this time.The chain of events leading up to Long's admission in his dormitory room was as follows: Long's car was stopped and searched in the canyon.He was told that the sheriff wanted to talk to the occupants and that they were to follow the deputies to Spearfish.At the Spearfish Police Station, the car was again searched, this time by the sheriff.The sheriff had deputy Palmer remain with Long while he went to have his picture taken and then accompany him back to his room.Upon their return to the dormitory, the sheriff asked Long if he could search the room.The sheriff admitted that at least by the time he saw the raincoat and the shoes he felt Long was a "suspect."The sheriff and deputy Palmer then sat down with Long in his room, with the door closed, and talked.Thus, from the time they were stopped in the canyon until the admissions were made later in the room, Long was continuously accompanied by or in the presence of the sheriff or one of his deputies or both.This certainly was a significant deprivation of Long's freedom of action.He could have reasonably believed that he was in custody, particularly when the sheriff insisted on a deputy accompanying him to have his picture taken.

Because of this custodial setting, Long should have been afforded a complete and meaningful statement of his constitutional rights.At most, Long was told he didn't have to say anything and that he could have a lawyer.This was a once-stated offering without further admonishment that he could stop talking at any time, that he...