U.S. v. Christian

• Decision Date: 23 February 1978
• Docket Number: No. 77-1167,77-1167
• Citation: 571 F.2d 64
• Parties: UNITED STATES of America, Appellee, v. Wallace Joseph CHRISTIAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 64

571 F.2d 64

UNITED STATES of America, Appellee, v. Wallace Joseph CHRISTIAN, Defendant, Appellant.

No. 77-1167.

United States Court of Appeals, First Circuit.

Feb. 23, 1978.

Michael A. Malloy, Boston, Mass., by appointment of the court, for defendant, appellant.

Paul E. Troy, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Appellant was convicted on one count of conspiracy and five counts alleging the substantive offense of transporting or causing the transportation of stolen motor vehicles in interstate commerce. 18 U.S.C. §§ 371,

2312, and 2. On appeal he argues that certain physical evidence should have been suppressed because it was seized as the product of a warrantless search in violation of the Fourth Amendment and that a statement he made during custodial interrogation should have been suppressed because his Fifth Amendment rights were violated. We agree with his second claim and, therefore, reverse and remand this case for a new trial.

The Fourth Amendment Claim

Special agents of the FBI and local police officers arrested appellant July 7, 1975. A car that appellant was using was parked in the driveway outside the apartment building where the arrest took place. The uncontradicted evidence, as adduced at a hearing on a motion to suppress, is that the officers did not have a search warrant; that the keys to the car were turned over to the officers; that an officer opened a front door to check the vehicle identification number; and that an officer opened the locked trunk and seized certain items found therein. It is these items that the appellant sought to suppress.

Appellant testified at the hearing that the officers had ordered him to turn over the keys and that before they opened the trunk he asked them not to search the trunk because he had personal items stored in it. Appellant's sister, who was present at the time, corroborated his story. The district court, however, chose to discredit their testimony and believe Special Agent Scott who testified that he had asked if he could examine the car and that appellant had consented and asked his sister to furnish the keys. Scott further testified that appellant expressed no objection to the search of the trunk before the trunk was opened. On the basis of its evaluation of the credibility of the witnesses, the court found that the warrantless search was justified as a consent search, ¹ and the consent was not limited so as to exclude the trunk from the scope of the search. ²

The district court's factual determinations are binding on appeal unless they are clearly erroneous. United States v. Jobin, 535 F.2d 154, 156 (1st Cir. 1976); United States v. Cepulonis, 530 F.2d 238, 244 (1st Cir. 1976). The trier of fact is of course the sole judge of witness' credibility, and Scott's testimony supports the court's finding. Therefore, we hold that the court committed no error by denying the motion to suppress the items taken from the car trunk.

The Fifth Amendment Claim

After the events described above, appellant was taken to the local police station and advised of his Miranda rights. He was given the standard FBI waiver of rights form which is in two parts. ³ The top part At the suppression hearing, appellant testified that he signed the form to indicate he understood his rights. Scott was asked, "And did he sign a standard FBI Waiver of Rights Form?" Scott answered, "Yes, he did." Appellant's counsel asked the United States Attorney if he had the form. The U.S. Attorney responded that he did not have it. The court ruled that the statement was admissible. ⁷ Had the matter rested here, we might have had little problem in upholding the court's ruling, because on the evidence before it at that time, it could believe Agent Scott and find that appellant had voluntarily waived his right to remain silent.

sets out the rights, and the bottom sets out a waiver. There is a line for a signature below the waiver. ⁴ Appellant did not place his signature on that line. He signed the form below the statement of rights, but above the waiver. While transporting appellant into Boston, Scott engaged appellant in a conversation unrelated to the case, then at some point Scott "asked him if he had anything he wanted to say to me concerning this arrest or the indictment or concerning the stolen cars in the indictment." ⁵ According to Scott, testifying at the suppression hearing, appellant replied, "With what you have got now, you have got me. I want to talk to you, however, I would like to talk to an attorney first." ⁶ Scott asked no more questions about the case.

The form was introduced at trial as an exhibit for identification by the prosecution. Thereafter appellant objected to Scott's testifying about appellant's statement and moved the court to strike the testimony once it had been admitted. Later appellant introduced the form as evidence and made a point of showing the jury where the signature was placed. Appellant testified that he did not sign the waiver and that when he signed he thought he was effecting his right to remain silent. He stuck to that story on cross-examination.

The Supreme Court has made it clear that an accused person in custody has the absolute right to remain silent and to have an attorney present during any question. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These rights, and others, are necessary to protect the accused's Fifth Amendment privilege against self-incrimination. The Miranda Court decided that any custodial interrogation was inherently coercive and that, therefore, careful procedures were needed to protect the accused. Miranda, supra, at 455-58, 86 S.Ct. 1602. Merely giving warnings to an accused does not satisfy the duties of an interrogating officer or make any statement the accused might then make admissible. "The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary There is no question that appellant was read his rights and that he understood them. By his own testimony at trial he admitted as much. The only question is whether he waived those rights. These are distinct questions. The passages quoted above, and others in Miranda, demonstrate that both warnings and waiver are prerequisites. One cannot substitute for the other. The privilege against self-incrimination must be voluntarily relinquished, id. at 476, 86 S.Ct. 1602, and "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." Id. at 475, 86 S.Ct. at 1628.

ritual to existing methods of interrogation." Miranda, supra, at 476, 86 S.Ct. at 1629 (emphasis added). The warnings guarantee that the accused knows what his rights are. But Miranda requires the interrogating officer to go further and make sure that the accused, knowing his rights, voluntarily relinquishes them. The accused's "freedom to decide whether to assist the state in securing his conviction", In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967), cannot otherwise be protected fully. "(U)nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Miranda, supra, 384 U.S., at 479, 86 S.Ct., at 1630.

As we have said, Scott did testify at the suppression hearing that appellant had signed a waiver form. Appellant himself testified that he had signed the form, though with the qualification that he had done so "to show I had been given my rights." On the record as of the suppression hearing we might not overturn the court's implicit ruling that appellant had voluntarily waived his rights. When the objection to admission of appellant's statement was renewed at trial, however, there was additional evidence before the court, the form itself. We are concerned about considering the form because appellant's attorney never precisely focused the court's attention on placement of the signature and never precisely argued that the form showed that appellant had not waived his rights. Defense attorneys cannot be encouraged to present issues to the trial court but hold back important arguments in hopes of creating an appealable issue.

We are convinced, however, that appellant's trial attorney was not deliberately holding anything back even though the precise issue was not raised at the suppression hearing or at the time the statement was introduced in court. He did not see the form at the suppression hearing because the government, whose burden it was to show the waiver of rights, did not bring the form to the hearing. Appellant's attorney did ask to see the form, and he probably should not have let that request drop so easily. But his conduct is excusable because both Agent Scott and appellant himself gave the impression that appellant had signed the waiver form.

By the time Scott was asked about the statement at trial, appellant's attorney had seen the form. He did renew his objection to admission of the statement, but he did not point specifically to the form. The court, having been misled by Scott's testimony into believing that appellant had signed the waiver and having already ruled on the admissibility of the statement, understandably cut short appellant's attorney's argument. There was no indication that he would have pointed to the form at that time. Later, after introducing the form into evidence, he did show the form to the jury and emphasized the location of the signature. The record does not indicate that the court examined the form at this, or at any other, time. Thus, at least by the end of the trial, the attorney had raised the issue. We cannot see that he had anything to gain by not...