U.S. v. Humphries

• Decision Date: 06 February 1981
• Docket Number: No. 78-1622,78-1622
• Citation: 636 F.2d 1172
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Richard HUMPHRIES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1172

636 F.2d 1172

UNITED STATES of America, Plaintiff-Appellant, v. John Richard HUMPHRIES, Defendant-Appellee.

No. 78-1622.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 17, 1978.

Decided Oct. 30, 1980.

Rehearing Denied Feb. 6, 1981.

Edmund G. Noyes, Jr., Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellant.

David S. Hoffman, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and SNEED, Circuit Judges, and KELLEHER, ^* District Judge.

CHOY, Circuit Judge:

The United States Supreme Court vacated the judgment of our court, United States v. Humphries, 600 F.2d 1238 (9th Cir. 1979), and remanded the case to us for further consideration in light of United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). 445 U.S. 956, 100 S.Ct. 1640, 64 L.Ed.2d 231. We have done so and now issue this revised opinion.

This is an appeal from the district court's denial of the Government's "Motion for Determination of Admissibility of Evidence" and further order that "all evidence concerning the identity and participation of defendant HUMPHRIES in this case is suppressed." We reverse and remand.

I. Statement of the Case

On April 20, 1977, an indictment was returned against appellee Richard Humphries and four others and was filed in the United States District Court for the District of Arizona. The indictment charged each of the defendants with conspiracy to import marijuana, conspiracy to distribute marijuana, importation of marijuana, and attempt to possess marijuana with intent to distribute it. ¹

Humphries moved for an order suppressing his identity "as a defendant in this matter and any and all other physical evidence and statements obtained as a result of the illegal arrest of (Humphries) in this matter." Judge Muecke heard the argument on Humphries' motion and granted that motion on January 26, 1978.

On February 3, the Government moved for a "Determination of Admissibility of Evidence." This second motion was heard by Judge Davies, who denied it on February 17, ordering that

all evidence concerning the identity and participation of defendant HUMPHRIES in this case is suppressed for the reason that the Plaintiff has not shown that any of said evidence is derived from a source other than the illegal arrest of defendant HUMPHRIES.

The Government appeals from this second order. On May 25, two members of this court denied Humphries' motion to dismiss the appeal for failure to file timely notice of appeal. ²

II. Jurisdiction

Humphries contends that this court is without jurisdiction over the United States' appeal in this case. He urges that the Government has attempted to circumvent the requirements of 18 U.S.C. § 3731 by moving for a "Determination of Admissibility" and appealing within 30 days of that order, but more than 30 days after the district court's initial decision on Humphries' suppression motion. We hold that we have jurisdiction to hear this appeal.

The courts often have been called upon to construe 18 U.S.C. § 3731, the Criminal Appeals Act. ³ Of their decisions, Professors Wright and Miller have said:

Appeals (under § 3731) are clearly allowed from interlocutory orders suppressing or excluding evidence or requiring the return of property, in marked contrast to the rules governing appeals by criminal defendants or witnesses.

15 Wright, Miller & Cooper, Federal Practice and Procedure § 3919, at 656; (footnote omitted); see e. g., United States v. Donovan 429 U.S. 413, 421 n.8, 97 S.Ct. 658, 665 n.8, 50 L.Ed.2d 652 (1977); United States v. Martinez-Fuerte, 514 F.2d 308, 310 (9th Cir. 1975), rev'd on other grounds, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

Section 3731 is broadly construed, for its legislative history makes it clear

that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.

United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352-1353, 51 L.Ed.2d 642 (1977) (quoting United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018-1019, 43 L.Ed.2d 232 (1975)). ⁴ The only limitation on Government appeals under § 3731 is the double jeopardy clause of the United States Constitution. United States v. Rojas, 554 F.2d 938, 941 (9th Cir. 1977), supplemented, 574 F.2d 476 (9th Cir. 1978); see note 4 supra.

Humphries contends that the Government's appeal is not properly before this court because it is a "Motion to Determine the Admissibility of Evidence" and not within the express language of § 3731. Humphries does not argue that the Government's appeal here violates the constitutional prohibition against placing him twice in jeopardy.

To hold that the order here is not appealable under § 3731 because a denial of a "Motion to Determine the Admissibility of Evidence" is not a "decision ... suppressing or excluding evidence" is to focus on the title of the Government's motion rather than the effect of the district court's order. Such an approach flies in the face of the intent of Congress and is contrary to consistent judicial authority. Section 3731 must be construed broadly; a Government appeal should not be rejected on a hypertechnical jurisdictional ground. Thus, we refuse to limit the Government's right to appeal under § 3731 solely because of the title of its motion. Instead, we "focu(s) on the effect of the ruling sought to be appealed." United States v. Martin Linen Supply Co., 534 F.2d 585, 587 n.3 (5th Cir. 1976), aff'd, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); see United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232.

Humphries alternatively argues that the Government has in fact appealed from the January 26 order of Judge Muecke; that the Government's "Motion to Determine the Admissibility of Evidence" and its appeal from Judge Davies' order denying that motion were merely an attempt to circumvent the time limits on appeals under § 3731.

Judge Muecke's order granted Humphries' motion that

the identity of JOHN RICHARD HUMPHRIES as a defendant in this matter and any and all other physical evidence and statements obtained as a result of the illegal arrest of the defendant (be suppressed) in this matter.

His decision did not elaborate on what evidence was covered by his order; the opinion merely addressed the illegality of the arrest or detention of Humphries.

The Government made its "Motion to Determine the Admissibility of Evidence" eight days after Judge Muecke entered his order. The Government did not challenge Judge Muecke's order; instead it sought only a decision on whether "certain identification evidence concerning defendant HUMPHRIES" was admissible under the previous order. A careful review of the transcripts and record in this case indicates that there was considerable confusion as to the scope of Judge Muecke's ruling ⁵ and that the testimony presented in the hearing before Judge Davies on the Government's motion was significantly different from that presented to Judge Muecke on the previous motion. ⁶

Given the confusion surrounding the earlier order, and that the Government indeed presented different evidence in the hearing on its motion, we cannot agree with Humphries that the Government's actions were calculated to circumvent the requirements of the Criminal Appeals Act. ⁷ The Government's appeal is one from Judge Davies' order suppressing all evidence relating to Humphries. Such an appeal is proper under § 3731 and was timely filed. ⁸ We thus have jurisdiction over this appeal.

III. Suppression of Evidence

Judge Davies ordered that all evidence concerning Humphries' identity and participation in the marijuana smuggling operation in this case be suppressed. The Government appeals from this order only as to three categories of evidence: (1) the testimony of Frank Sisto; (2) evidence gained as the result of the surveillance of a residence in Scottsdale, Arizona; and (3) the testimony of James "Bullet" Thompson, the alleged pilot of the crashed marijuana-laden plane involved in this case.

A. Sisto's Testimony

Frank Sisto testified that on the evening of October 23, 1976, he met two strangers at the home of his daughter, just north of San Carlos, Arizona. ⁹ One of the men introduced himself as "Tony" and explained that their truck had broken down about three miles north of the residence. He asked to use the telephone to call his wife to pick them up. When Sisto gave his permission to use the phone, "Tony" asked where the best place to wait for his wife would be. Sisto suggested the San Carlos police station but "Tony" said that he did not wish to wait there. Sisto then suggested the tribal store in San Carlos and offered to give the two men a ride to that point. "Tony" accepted Sisto's offer. After taking the two men to the store, Sisto called the police station because he was "worried" and had a "funny feeling" about them.

Sisto's message was passed along to Bureau of Indian Affairs (BIA) Special Agent Little Whiteman, who was investigating a downed aircraft loaded with marijuana near the area where Sisto initially saw the two men. Little Whiteman ordered one of his officers to go to the tribal store to see if the two were still there. Upon receiving word that the two men were still at the tribal store, Little Whitman ordered them brought in for questioning. This detention was held an illegal arrest by Judge Muecke. ¹⁰

In court Sisto pointed to Humphries as one of the men to whom he had given a ride. His testimony and identification were based solely on his contact with Humphries and his codefendant, Richardo Rubio ("Tony") prior to the unlawful arrest. It is not in any way a "fruit" of that unlawful arrest. See United States v. Williams, 436 F.2d 1166, 1170 (9th Cir. 1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971). Thus, we reverse Judge Davies' order insofar as it...