Sullins v. United States, 9662-9664.

• Decision Date: 22 March 1968
• Docket Number: No. 9662-9664.,9662-9664.
• Citation: 389 F.2d 985
• Parties: Howard Douglas SULLINS, James Floyd Williams, Audrey Louise Gillingham, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

389 F.2d 985 (1968)

Howard Douglas SULLINS, James Floyd Williams, Audrey Louise Gillingham, Appellants, v. UNITED STATES of America, Appellee.

Nos. 9662-9664.

United States Court of Appeals Tenth Circuit.

February 26, 1968.

Rehearing Denied March 22, 1968.

James Nelson, Wichita, Kan., for appellants.

Guy L. Goodwin, Asst. U. S. Atty., Wichita, Kan. (Newell A. George, U. S. Atty., District of Kansas, with him on brief), for appellee.

Before WOODBURY,^* LEWIS and HICKEY, Circuit Judges.

WOODBURY, Senior Circuit Judge.

These three appellants and one Linda Hughes, otherwise known as Linda Sullins, who did not appeal, were indicted, tried by jury, convicted and sentenced on three counts: two charging the passing of counterfeit $20.00 Federal Reserve notes in Kansas in violation of Title 18 U.S.C. § 472 and § 2 and the third charging conspiracy to pass counterfeit notes in violation of Title 18 U.S.C. § 371. The appellants complain of violations of their federal constitutional rights.

The following facts may be taken as established.

At some time between quarter and half past six o'clock on the evening of March 15, 1967, the appellant Williams obtained change for a counterfeit $20.00 Federal Reserve note at a filling station in Lakin, Kansas. The filling station attendant with the aid of a friend who happened to come in obtained a description of the automobile in which Williams was riding by make, type, color and license number and also the direction in which the car was traveling. The attendant then notified the local sheriff. Acting on this report a local police officer who was also a deputy sheriff set off in pursuit. He came up with his quarry about 23 miles east of Lakin at a filling station and cafe on the outskirts of Garden City, Kansas. The officer drew up behind the car he was looking for and got out just as Williams got out of the car ahead. The other three also got out of the car. The officer then charged Williams with passing the counterfeit note in Lakin, said they would have to return to straighten the matter out and gave Williams the warnings required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

While they were talking the sheriff drove up and he gave all four the Miranda warnings. The entire party then returned to the sheriff's office in Lakin where they were joined by the county attorney who once more gave the Miranda warnings to all four. The four were held in jail overnight. About mid-afternoon the next day, March 16th, two United States Secret Service agents arrived by automobile from Kansas City, Missouri. They gave the Miranda warnings to all four and interrogated them. Later at about quarter before six Sullins signed a standard form of notice and waiver of constitutional rights submitted to him by one of the agents but made no statement. We reproduce the notice and waiver in the margin.¹

Early in the evening of March 16th the four were taken to Garden City, the location of the nearest United States Commissioner, in two automobiles, the women with local officers in one car, the men with the federal officers in another. Between 8 and 8:30 o'clock that evening the four were taken before the United States Commissioner. He gave them the prescribed notice of their constitutional rights and fixed bail which they were unable to make. They were retained overnight in jail in Garden City.

The following morning, March 17th, the Secret Service Agents talked with the four again. At that time Sullins signed another waiver similar to the one he had signed the day before and both Williams and Linda Hughes, using the name Linda Sullins, also signed like waivers. All three then signed written statements of the same general tenor as oral statements previously given to the federal officers by Williams and Sullins during the trip from Lakin to Garden City the evening before and to some extent corroborating an oral statement given to one of the federal officers by Gillingham in Lakin on March 16th.

At the trial counsel for the appellants moved to suppress any evidence of inculpatory statements made by the appellants and the court, following the teaching of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), held a hearing in the absence of the jury to determine the admissibility of the evidence. The appellants and Hughes took the stand. They admitted that they had repeatedly been given the Miranda warnings but asserted that they asked for counsel immediately upon their arrival at the sheriff's office at Lakin and on several subsequent occasions. But they said that their requests for counsel had been ignored. The officers, both local and federal, admitted that they had interrogated the appellants and Hughes at Lakin and Garden City but denied that any one of them had at any time asked to have counsel present at their interrogation. The officers did testify, however, that at no time had any one of the four expressly said that he or she did not want to consult a lawyer before making a statement. The court below denied the motion to suppress and permitted the jury to consider the evidence of inculpatory statements testified to by the officers under instructions to which no objection was made.

The testimony of the officers that none of the accused specifically declined consultation with a lawyer before answering questions is fatal to the admissibility of their inculpatory statements, for the Court in Miranda v. United States, supra, pointed out on page 475 of 384 U.S., on page 1628 of 86 S.Ct. that not only does "a heavy burden" rest upon the Government to show a waiver of the constitutional privilege against self-incrimination and the right to retained or appointed counsel but also that waiver is never to be presumed from failure to ask for counsel. It said:

"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained."

And at page 470, 86 S.Ct. at page 1626, the Court categorically said:

"An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given."

The written statements given after execution of the notices and waivers of constitutional rights do not stand in any better position than the oral statements previously made. The written statements merely reiterate the preceding oral statements. They were made after the damage had been done.²

Nor may the Government make any use of information obtained as a result of the illegal interrogation for that would be to harvest the "fruit of the poisonous tree."

There must be a new trial at which evidence of inculpatory statements of the appellants is excluded.

We turn now to some other matters which may arise at the...