U.S. v. Doubet, 91-1979

• Decision Date: 26 August 1992
• Docket Number: No. 91-1979,91-1979
• Citation: 969 F.2d 341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George A. DOUBET, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 341

969 F.2d 341

UNITED STATES of America, Plaintiff-Appellee, v. George A. DOUBET, Defendant-Appellant.

No. 91-1979.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1992.

Decided July 20, 1992.

As Amended Aug. 26, 1992.

Darilynn J. Knauss, Asst. U.S. Atty., Peoria, Ill., Rodger A. Heaton, Asst. U.S. Atty. (argued), Springfield, Ill., for plaintiff-appellee.

Richard H. Parsons, Peoria, Ill. (argued), for defendant-appellant.

Before POSNER, FLAUM and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

A jury convicted George Doubet of bank robbery, armed bank robbery, using a firearm during a crime of violence, and possession of a sawed-off shotgun, 18 U.S.C. §§ 2113(a), (d), 924(c)(1), 26 U.S.C. §§ 5861(d) and 5871, and the district court sentenced him to 130 months in jail. On appeal, Doubet challenges both the district court's denial of his motion to suppress statements he made to the police on the day of his arrest, as well as enhancements of his sentence for physical restraint and obstruction of justice. We affirm.

I.

At about noon on November 10, 1990, an armed man wearing a blue ski mask and clad in a navy blue hooded sweatshirt, blue jeans, and yellow gloves entered the First Financial Bank in Elmwood, Illinois, approached the tellers' counter, and declared, "This is a hold-up." The man then proceeded to jump over the counter, and instructed the three tellers to move in the direction of a back room. He ushered them to the room, and, uttering threats, directed them further into a restroom within the back room. After approximately five minutes had passed, the employees ventured out and, discovering the gunman had fled, activated the alarm. Some $12,280 had been stolen, including $300 bearing previously recorded serial numbers.

After FBI agents interviewed the tellers, George Doubet became a potential suspect; he physically resembled the gunman, had been in the bank less than an hour before the robbery to withdraw forty dollars from a checking account he had opened the previous evening, and had requested to use the restroom, even though he lived only about 200 yards from the bank. Moreover, an individual living near the bank reported that he saw a man wearing a blue hooded sweatshirt and a surgical-type mask at about noon that day walking up the alley toward the bank from the direction of Doubet's house.

Based on this information, FBI agents placed Doubet's house under surveillance. At about 4:30 p.m. that afternoon, agents observed Doubet and his family drive up to their home and go inside. About thirty minutes later, the family left the residence and began to drive away. At Agent Frank Mulcahey's request, Elmwood Police Chief Thomas Thompson stopped Doubet's car. Doubet stepped out as Thompson and FBI agents approached him. Thompson asked Doubet if he would be willing to speak with Mulcahey; Doubet agreed, and Mulcahey approached Doubet and asked him to accompany him to the police station for questioning. Doubet responded, "Fine. No problem."

With the law enforcement officials in tow, Doubet got back in his car, returned home, got out of his car and into the squad car, and rode with Mulcahey and fellow agent Gregory Spencer to the police station where they led him to Thompson's office for questioning. According to Mulcahey, he told Doubet about the bank robbery, and stated that he and Spencer wanted to question him about his activities that day. He further told Doubet that he was not under arrest and was free to leave at any time, to which Doubet responded that he understood he could leave.

In the meantime, two FBI agents remained with Doubet's wife and three children at the Doubets' residence, where they interviewed Mrs. Doubet. After roughly thirty to forty minutes had passed, one of the agents at the Doubets' house, David Hirtz, discussed the Doubets' respective statements in a telephone conversation with Mulcahey. Finding inconsistencies, they decided to seek consent to search Doubet's home and car, and a search warrant should consent be refused. Mulcahey then permitted Doubet to speak with his wife. After the phone call, Mulcahey, as planned, asked Doubet for permission to seach his car; Doubet refused, and further stated that he wanted to end his discussion with the agents. The agents discontinued the questioning and two officers drove Doubet home. Mrs. Doubet, likewise, denied Hirtz's request for consent to search their home. Hirtz then told her that a warrant was being sought, and that agents would be securing the house to prevent the destruction of any evidence.

Agents remained in the Doubets' house for approximately six hours, until the warrants for the house and car were executed. During this period, they told Mrs. Doubet they would leave if the Doubets would leave as well; they opted to remain. The agents also denied a request by Doubet to go to the bedroom with his wife, on the ground that it presented a potential risk of destruction of evidence in the bedroom. The search of the house and car ultimately uncovered several inculpatory items, including approximately $7,000 in cash (including some $300 in marked money), shotgun shells, and the stock from a sawed-off shotgun.

II.

Doubet first claims the district court should have suppressed statements he made to law enforcement officials on the day of his arrest regarding his activities and whereabouts on the day the robbery occurred. We will not overturn the district court's denial of a motion to suppress unless the decision was clearly erroneous. United States v. Williams, 945 F.2d 192, 195 (7th Cir.1991); United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991). Our inquiry is, for the most part, "factually based and requires that we give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses." Williams, 945 F.2d at 195 (quoting United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990)). To the extent that legal determinations factor into a suppression ruling, they are subject to de novo review. Williams, 945 F.2d at 195-96 (citing United States v. Parker, 936 F.2d 950, 953 n. 1 (7th Cir.1991) (collecting cases)).

Doubet initially attacks the admission of his statements on the ground that the police failed to give him Miranda warnings prior to questioning. Since law enforcement officers need not administer Miranda warnings to suspects who are questioned outside of a custodial setting, United States v. Levy, 955 F.2d 1098, 1103 (7th Cir.1992) (citing Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990)), petition for cert. filed (Apr. 1, 1992), the threshold inquiry is whether the police placed "such a restriction on [Doubet's] freedom as to render him 'in custody.' " Levy, 955 F.2d at 1103 (quoting United States v. Fazio, 914 F.2d 950, 954 (7th Cir.1990)). When reviewing the district court's determination on the issue of custody, we will not disturb its underlying factual findings and credibility determinations unless they are clearly erroneous. Id.; Fazio, 914 F.2d at 955.

Doubet testified at the suppression hearing that when he was pulled over, police cars surrounded his car and several officers were present at the scene. He admitted that he initially agreed to speak to Mulcahey, but contended that an FBI agent took him by the elbow and placed him in the police car, and that he felt he was under arrest from that point forward. He further stated that he was frisked at the police station. According to Doubet, Spencer sat next to the sole exit in Thompson's office during questioning, with his revolver visible to Doubet, further contributing to Doubet's perception that he was not free to leave.

Doubet also testified at the suppression hearing, contrary to the testimony of the FBI agents and Thompson, that he was never told that he was not under arrest or free to leave. On this point, the district court explicitly believed the agents' version, finding that Doubet was informed on at least one occasion--when the interview at the police station commenced--that he was not under arrest. Moreover, the district court found it important that after approximately thirty to forty minutes of questioning and his telephone conversation with his wife, Doubet refused to continue with questioning, would not give consent to a search, and requested to leave. According to the court, this was "inconsistent with the testimony that ... he felt he was wholly dominated or intimidated by the agents...." Suppression Hrg. at 92. The court also noted that once Doubet indicated he did not want to answer further questions, the agents terminated the interview. The district court had the opportunity to observe firsthand the witnesses' credibility, and we do not find its determination clearly erroneous. We hold that it did not err in finding that Doubet was not in custody, and therefore not entitled to Miranda warnings.

Relying on United States v. Rivera, 906 F.2d 319 (7th Cir.1990), and Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), Doubet further contends that his statements should have been suppressed because he was allegedly detained an unreasonable length of time prior to his arrest. In Rivera, the defendant unsuccessfully argued that cocaine found in his car should have been suppressed as evidence because the trooper's investigative search greatly exceeded any legitimate duration and scope. Although we noted that "[t]he constitution restricts the duration of a seizure to the duration necessary to fulfill the seizure's purpose," Rivera, 906 F.2d at 322, we held that the trooper had not exceeded constitutional bounds in engaging in limited discourse with Rivera and his passenger. Although in dicta we stated the general principle that the duration of a seizure is not unlimited, the fact pattern in Rivera--a trooper's...