U.S. v. Ceballos
| Citation | 812 F.2d 42 |
| Decision Date | 13 February 1987 |
| Docket Number | D,Nos. 371,516,s. 371 |
| Parties | UNITED STATES of America, Appellee, v. Abraham CEBALLOS and Efrain Adames, Defendants-Appellants. ockets 86-1273, 86-1299. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Peter Shelley Zeiler, New York City, for defendant-appellant Ceballos.
Phylis Skloot Bamberger, The Legal Aid Society, New York City, for defendant-appellant Adames.
Baruch Weiss, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Kenneth Roth, Asst. U.S. Atty., New York City, on the brief), for appellee.
Before FEINBERG, Chief Judge, NEWMAN and MINER, Circuit Judges.
The principal issue raised on this appeal is whether a criminal suspect who passively obeys a law enforcement agent's stern request to accompany him to his field office for questioning has been "seized" within the meaning of the Fourth Amendment to the United States Constitution. The issue arises on an appeal by Efrain Adames and Abraham Ceballos from judgments of the District Court for the Southern District of New York (Gerard L. Goettel, Judge) convicting them on their pleas of guilty to counterfeiting and conspiracy violations, 18 U.S.C. Secs. 2, 371, 474 (1982). Both defendants reserved the right to challenge on appeal the denial of their motions to suppress physical evidence seized and statements made at or about the time of their arrests. Because Secret Service agents placed Adames in investigatory custody before they had probable cause to arrest him, we reverse the District Court's denial of Adames' suppression motion. We affirm Judge Goettel's denial of Ceballos' suppression motion.
On March 4, 1985, George Mazawey of Correy & Allen Paper Company contacted Secret Service agents to report that "Abe Ceballos" and a man named "Efrain" had purchased 15,000 sheets of an expensive type of paper often used to produce counterfeit bills. Mazawey noted that the buyers had never previously bought paper from his company, had no obvious need for such paper, and had paid cash. Mazawey also reported the license plate number of the truck used to pick up the paper; the truck was registered to Royal Molds, Inc. ("Royal Molds"), Adames' employer.
On March 11, 1985, at mid-afternoon, four Secret Service agents arrived in two cars at Royal Molds, a tool and die company. Agent Powers went alone into the shop while another agent remained in the stairwell. Agent Powers displayed his badge to the supervisor and asked to speak with Adames. The supervisor summoned Adames to the office. During the suppression hearing, Agent Powers provided the following description of his first encounter with Adames:
[cross-examination by Atty. Joy, counsel for Adames]
Atty. Joy: [D]id you ask [Adames] to come [with you to the field office] after he completed work?
Agent Powers: I asked him if it was possible if he could get off a little bit early and come with us.
Atty. Joy: And then you say he asked his supervisor whether he could ... get off?
Agent Powers: I believe they discussed his shift, what time he ended, and it was a matter of a half-hour or so, and he [the supervisor] told him to go ahead.
Atty. Joy: And well, did you say to him, "Well, look, you know, you can come anytime you want"?
Agent Powers: No, we didn't say that to him. We had to speak to him.
Atty. Joy: You s[ai]d he had to come with you now?
Agent Powers: Not that he had to come, but he sensed the urgency of it, and we would wait until he got off work but if he could come now, it would be better all around.
Atty. Joy: How did you express the urgency? You say he sensed the urgency? How did you express to him the urgency?
Agent Powers: Well, I think the fact ... that his supervisor went over and got him and told him that there was someone from the law enforcement community that wanted to speak to him.... I think he said something along the lines of the police are here, they want to talk to you.
* * *
Atty. Joy: So you said, let's go down to the precinct, is that right?
Agent Powers: Yes, I said that.
Atty. Joy: Did you show your badge to Mr. Adames?
Agent Powers: I believe I did. I'm not sure.
Transcript of Suppression Hearing, January 28, 1986, at 200-01, 203. Judge Goettel found that the agents "initially indicated they would be taking [Adames] to their office for questioning." Memorandum Decision of District Court at 2 (April 3, 1986). Agent Powers scrupulously watched Adames as he got his coat.
Upon leaving Royal Molds, Adames asked the agents if he could follow them to their office in the company van which he was authorized to drive and customarily used to drive home. The agents refused and accompanied Adames back into the shop to return the keys to the supervisor.
Adames, Agent Powers, and another agent entered a car parked in front of Royal Molds. Without speaking, they drove one block to another car, which contained Agent Cases. Once in the second car, Agent Powers told Adames that he was a Secret Service agent investigating counterfeiting. Speaking in Spanish, Adames' first language, Agent Cases then read Adames his constitutional rights and advised Adames that he was not under arrest. Adames was not handcuffed.
The agents initially intended to drive Adames directly to the Secret Service field office. Agent Cases proceeded to question Adames in the car. Adames stated that he was planning a business to produce flyers and intended to use the paper to practice printing. In light of the high cost of the paper, the agents found this explanation to be implausible. After they had been driving about five minutes, Adames offered to take the agents to his brother's house, where the paper was being stored. They proceeded to that house. With Adames' assistance, they carried three cartons of paper to the agents' car.
Adames then told the agents that he had a printing press at his residence and offered to take them there. They proceeded to Adames' home. Adames showed the agents the printing press, which they recognized as being capable of producing counterfeit bills if the necessary plates were available. They knew that 90% of counterfeit bills in the New York area are printed on presses of that type. The agents also saw several inks, including green and black inks. The green ink was on a rag and a baking tray, suggesting active use. Adames denied having printed counterfeit bills.
The agents then took Adames to the Secret Service field office. Neither at this time nor thereafter did Adames ask to leave, nor was he physically restrained. On the other hand, the agents never told him that he could leave, and it was clear that he would have been restrained had he attempted to do so. See Memorandum Decision of District Court at 3 (April 8, 1986).
They arrived at the field office at 6:00 p.m. and put Adames in a small, locked interview room. Agent Powers again told Adames that he was not under arrest. The agents proceeded to question Adames for several hours. The agents warned Adames that his paper and press and the company van were subject to forfeiture and that his brother might have serious problems if the paper purchase was not cleared up. Adames made several incriminating statements involving Ceballos and stated that Ceballos had produced and currently possessed counterfeiting plates. At the agents' behest, Adames attempted repeatedly to contact Ceballos by phone, but without success. As the evening wore on, the agents offered Adames a sandwich and coffee.
At about 8:30 p.m., the agents asked Adames if he would take a polygraph test. Adames signed consent forms stating that he agreed to take a polygraph test and that he was aware of his constitutional right to remain silent. A test was finally administered at 10:00 p.m. upon the arrival of a polygraph examiner. After the examiner reported that the test indicated Adames was lying, the agents again warned him of the severe consequences of a criminal conviction for counterfeiting. Adames alleges that he was then roughed up by the agents, but Judge Goettel discredited this claim, noting that there was no physical evidence to support it. The agents denied using physical force. Thereafter, Adames acknowledged that he had lied and that he and Ceballos had printed some counterfeit bills which, because of poor quality, had never been passed.
Adames agreed to assist the agents in obtaining the plates from Ceballos the next morning. On the morning of March 12, Adames accompanied the agents to P & J Printing, the printing shop where Ceballos worked. Adames introduced Ceballos to Agent Cases, who was posing as a potential purchaser of the plates. Ceballos did not fall for the ruse.
Adames was taken back to the field office, where he signed a typed statement that recounted his oral admissions of the previous evening. Adames was released in the early afternoon without being charged with any crime.
After Adames left Ceballos' place of work, a number of agents entered P & J Printing, handcuffed Ceballos, and escorted him out. Thereafter, they advised him of his rights. Ceballos was taken to the field office and questioned. The agents warned Ceballos of the seriousness of a counterfeiting offense and threatened to get a search warrant unless Ceballos consented to a search of his apartment. They offered to help Ceballos obtain low bail and retain his job if he cooperated. After a couple of hours, Ceballos gave a full statement and consented to a search of his apartment. At the apartment, Ceballos located the plates and surrendered them. Ceballos was taken back to the field office, whereupon he and Adames were indicted on counterfeiting and conspiracy charges.
Adames and Ceballos filed motions to suppress their statements and physical evidence discovered near the time of their arrests. Judge Goettel denied their motions. Pursuant to Fed.R.Crim.P. 11(a)(2), Adames and Ceballos then entered conditional guilty pleas to charges of violating 18...
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