U.S. v. Glenna

• Decision Date: 26 June 1989
• Docket Number: No. 89-1044,89-1044
• Citation: 878 F.2d 967
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Wayne E. GLENNA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 967

878 F.2d 967

UNITED STATES of America, Plaintiff-Appellant, v. Wayne E. GLENNA, Defendant-Appellee.

No. 89-1044.

United States Court of Appeals Seventh Circuit.

Argued May 15, 1989.

Decided June 20, 1989.

As Corrected June 26, 1989.

Mark A. Cameli, Asst. U.S. Atty., Office of U.S. Atty., Madison, Wis., for plaintiff-appellant.

Steven C. Underwood, Murphy & Desmond, Madison, Wis., for defendant-appellee.

Before BAUER, Chief Judge, CUMMINGS, and FLAUM, Circuit Judges.

BAUER, Chief Judge.

At 9:39 p.m. on August 22, 1988, the Eau Claire, Wisconsin Police Department received this teletyped message from the Indiana State Police in LaFayette, Indiana:

FOR YOUR INFORMATION ... NO CHARGES OUR DEPARTMENT ... REF/WAYNE GLENNA ONE OF OUR TROOPERS WAS CONTACTED BY A MEMBER OF THIS SUBJECTS [sic] FAMILY ADVISING THAT GLENNA WAS PASSING THROUGH LAFAYETTE, IN[.] ENROUTE TO WAUKESHA, WI. WE NOW HAVE INFORMATION HE IS ENROUTE TO EAUCLAIRE [sic], WI TO A RELATIVES [sic] RESIDENCE BY NAME OF VEELEY. HE RESIDES IN ALABAMA AND POSSIBLY INVOLVED IN SOME TYPE OF DRUG DEAL AND COULD HAVE $100,000 IN CASH WITH HIM. HE IS MALE WHITE AGE APPROX 20'S 509-511 135-150. BLOND SHOULDER LENGTH HAIR AND WAS LAST SEEN IN ORANGE T-SHIRT AND KHAKI GREEN PANTS. HE WAS DRIVING GREEN DODGE WINDNOW [sic] VAN WITH NO LICENSE PLATE, MOTORCYCLE STRAPPED TO BACK OF VAN. GLENNA IS IN POSSESSION OF SEVERAL SMALL ARMED WEAPONS AND EXPLOSIVE DEVICE, HE COULD HAVE A JOB WASHING DISHES. UNKNOWN WHERE.

The Eau Claire department's night patrol shift learned of the teletype that night; the day patrol and detective bureau shifts learned of it the following morning.

At about 10 a.m. on August 23, Sergeant Judy Streets observed a van matching the description given in teletype parked in front of a residence on a busy Eau Claire thoroughfare. Streets returned to police headquarters and revealed her discovery to Captain Malone, who directed Officer Todd Trapp to keep an eye on the residence and the van from a distance. At or shortly after noon, Officer Todd Tollefson relieved Trapp who, as he departed, drove past the residence and observed in the front yard a person also matching the description in the teletype. Trapp reported this observation over his radio.

Shortly after Trapp's departure, Tollefson reported by radio that the van had left the residence and was traveling south on the busy thoroughfare. Upon receiving instructions to stop the van for failure to display license plates, Tollefson followed the van into a gas station/convenience store and parked his car. By the time Tollefson got out of his car, however, the van, which was parked near the gas pumps, was unoccupied. Tollefson, therefore, headed toward the store's entrance, where he encountered Glenna who, when asked, told Tollefson that the van was his. As Tollefson and Glenna began walking toward the van, Tollefson asked whether Glenna had registration documents for the van. Glenna responded that he had proof of application for title in the van's glove compartment.

About eight to ten feet from the van, Tollefson stopped and asked Glenna for some identification. As Glenna reached into a large, military-style pocket of his trousers, Tollefson saw a lump in the pocket which he thought could be a weapon. Tollefson immediately grabbed Glenna's hand and pulled from the pocket a loaded clip for a nine-millimeter firearm. Tollefson thereafter handcuffed Glenna or had Trapp, who had turned back toward the store after hearing Tollefson's radio reports, do so. Tollefson then conducted a pat-down search of Glenna and found in another pocket a small explosive "cherry bomb."

After conducting the pat-down search, Tollefson asked Glenna if he could retrieve the van's registration papers from the glove compartment. Glenna consented, so Tollefson opened the van's front passenger-side door and removed the papers. While doing so, Tollefson noticed between the van's two front bucket seats a box bearing a fireworks label. Tollefson opened the box and found illegal fireworks. After looking in other boxes and bags for fireworks or contraband and finding nothing, Tollefson exited the van and told Glenna that he was under arrest for the possession of illegal fireworks.

After radioing a driver's license and vehicle identification number check, Tollefson walked around the van and, through a window, observed a box labeled "UZI", which Tollefson recognized as a brand of automatic or semiautomatic firearm, as well the butt of a holstered handgun ¹ and a knife. By now, other officers had arrived, including Streets, Investigator Matysik, and Sergeant Foster, the senior officer present. After learning from Tollefson what had happened, Foster, who also observed the UZI box and the revolver butt, instructed Trapp to place Glenna in Tollefson's squad car and to ask Glenna whether the van contained any bombs. Trapp did so and eventually Glenna responded that there was a bomb in a suitcase behind the driver seat, but that Trapp should not worry because it was not activated.

Unconvinced, the officers called the fire department and requested that they bring a "bomb box" to the scene. Soon after, Foster, assisted by a fire department supervisor and without Glenna's consent, entered the van and, while kneeling on the front seat facing the rear, opened the suitcase in the second seat. Observing what appeared to be a pipe bomb inside, Foster immediately closed the suitcase. The bomb was then placed in the bomb box, and transported by the fire department to the police department range pending the arrival of a bomb disposal team. The van was towed to the same range out of concern that it might contain more explosives. Meanwhile, Tollefson and Matysik took Glenna back to police headquarters, where they arrived at approximately 12:30 p.m.

On August 24, Glenna was indicted by the grand jury for the unlawful possession of an unregistered pipe bomb, the possession of a pipe bomb not identified by a serial number, and the interstate transportation of an unregistered pipe bomb, all in violation of 26 U.S.C. Sec. 5861(d), (i), and (j), and 26 U.S.C. Sec. 5871. He later moved to suppress all statements and the fruits of all searches of his van following his stop and detention on the afternoon of August 23. Glenna contended, inter alia, that he was arrested without probable cause when the officers placed him in handcuffs in the convenience store parking lot; that his alleged authorization of Tollefson's entry into the van to retrieve the registration papers was invalid because Tollefson requested Glenna's consent to search without first advising Glenna of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and that, under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), all subsequent statements and the products of any subsequent searches had to be suppressed as tainted fruit of these prior illegalities.

The magistrate, after a two-day evidentiary hearing, recommended that Glenna's motion be granted except as to the nine-millimeter clip and any statements made before Glenna was handcuffed. At that point, the magistrate concluded, the limited intrusion contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), had ended and Glenna had been arrested ² without probable cause. The Magistrate also determined that Tollefson violated Glenna's Fifth Amendment rights when he elicited Glenna's consent to enter the van before reading him his rights under Miranda. The magistrate noted that Miranda applies to custodial interrogations, and concluded that a person in handcuffs is "manifestly" in custody. Further, the magistrate concluded that, under Wong Sun, neither the registration documents nor the box of fireworks found in the van's cabin were admissible in evidence, and that Glenna's arrest for possession of those fireworks was likewise unlawful. He also determined that Wong Sun precluded the admission of all subsequent statements and the products of all later searches.

The district court agreed with the magistrate that "there is little dispute that handcuffing a suspect converts the stop into an arrest." The court also agreed that Tollefson's elicitation of Glenna's consent ³ to enter the van to retrieve the registration documents without first reading Glenna his Miranda warnings violated Glenna's Fifth Amendment rights on the ground that Tollefson's inquiry was "reasonably likely to invoke an incriminating response." See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). ⁴ Finally, the court agreed with the magistrate that, under Wong Sun, the fruits of Glenna's subsequent questioning and the searches of his van had to be suppressed. Accordingly, the court granted Glenna's motion to suppress except as to the nine millimeter clip and any of Glenna's statements uttered before he was placed in handcuffs.

This is the government's appeal from the district court's order granting Glenna's suppression motion. Not surprisingly, it argues that the district court erred in holding that the officers arrested Glenna without probable cause when they placed him in handcuffs and that Tollefson was required to read Glenna Miranda warnings before obtaining his consent to retrieve the registration papers. We agree with the government on both points.

The Miranda issue requires little discussion, for although the district court believed that the officers' request for consent to retrieve the registration papers was "reasonably likely to evoke an incriminating response" and therefore ran afoul of Miranda, every federal circuit court that has addressed the question has reached the opposite conclusion. See Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir.) ("Simply put, a consent to search is not an incriminating statement."), cert. denied, 474 U.S. 833, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985); Smith v. Wainright, 581 F.2d 1149, 1152 (5th Cir.1978)...