U.S. v. Ible

• Decision Date: 14 November 1980
• Docket Number: No. 79-5687,79-5687
• Citation: 630 F.2d 389
• Parties: 7 Fed. R. Evid. Serv. 94 UNITED STATES of America, Plaintiff-Appellee, v. Edward Robelto IBLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 389

630 F.2d 389

7 Fed. R. Evid. Serv. 94

UNITED STATES of America, Plaintiff-Appellee, v. Edward Robelto IBLE, Defendant-Appellant.

No. 79-5687.

United States Court of Appeals Fifth Circuit.

Nov. 14, 1980.

Archibald J. Thomas, III, Jacksonville, Fla., for defendant-appellant.

Russell W. LaPeer, Asst. U. S. Atty., Jacksonville, Fla. for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, HILL and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant, Edward Ible, seeks reversal of his conviction for unlawful possession of counterfeit currency in violation of 18 U.S.C. § 472. Several points are raised by appellant, but the failure of the government to comply with Federal Rules of Criminal Procedure 16(a)(1)(A), by not providing defense counsel with appellant's oral statements made in response to interrogation by the arresting Secret Service agent, requires our reversal and remand for a retrial.

I.

Appellant was arrested on a state counterfeit charge at an outdoor jobsite in Sumter County, Florida, by two detectives of the Leesburg Police Department, located in Lake County, Florida. With the arresting officers was a federal Secret Service agent who subsequently made a federal arrest of the appellant after he had been transported back to the Leesburg Police Department and interrogated. One plainclothes Sumter County Deputy Sheriff and one uniformed Deputy Sheriff were also present at the arrest, but did not participate.

The arresting Leesburg officers had been investigating the distribution of two counterfeit $20 bills at a drugstore in Leesburg. The arresting federal agent had been investigating a similar report of counterfeit distribution at a bar near Leesburg. In the process of these separate investigations the police detectives and the federal agent rendezvoused and rode together to the open field jobsite at which appellant was arrested. ¹ The arresting officers were in an unmarked vehicle and not in uniform. In making the arrest, the senior Leesburg police detective verbally identified himself, placed his hand on his gun ² and informed appellant that he was under arrest. The other Leesburg officer assisted the arresting officer by giving the appellant his warnings and frisking the appellant for weapons and contraband. This officer identified himself, displayed his badge and seized appellant's wallet containing nineteen counterfeit $20 federal reserve notes. No weapons were drawn.

Based upon appellant's statements at the scene the arresting officers searched a nearby wooded area where appellant claimed to have discovered the counterfeit money on the day previous to his arrest. Upon failing to discover any other counterfeit bills in the area, appellant, his two co-workers, the Secret Service agent and the two Leesburg officers proceeded toward Leesburg in the unmarked vehicle in which the arresting officer had arrived. Enroute they stopped to search a roadside area where one of the appellant's co-workers claimed he had placed in a beer can and thrown away four $20 federal reserve notes given to him by the appellant the previous day. ³ This search was also unsuccessful. Once again enroute, the Leesburg officers and Secret Service agent decided to recover additional counterfeit $20 bills which they had learned during initial interrogation of appellant and his co-workers had been passed that morning. They made two stops and recovered those bills. ⁴ Appellant was aware of each recovery.

Upon arrival at the Leesburg Police Department, appellant was again apprised of his Miranda rights and interrogated by the arresting state officer with the Secret Service agent present. At that time appellant made certain oral admissions. The arresting state officer then sought to have appellant reduce to writing his earlier oral admissions. Appellant did so in part. The state officer then sought additions to this written statement based on the previous oral admissions and the appellant complied. ⁵ Shortly after this, appellant was again given his Miranda warnings, interrogated by the Secret Service agent and arrested. During this interrogation the appellant made further oral statements but no written statement was obtained. An indictment on two counts, possession and uttering counterfeit currency was returned upon which the appellant was found guilty by a jury of possession only and sentenced to two years imprisonment.

II.

Before trial, appellant filed a motion to suppress all oral and written statements and all physical evidence. The trial court ruled that the appellant's arrest was a valid citizen's arrest under Florida law and thus the physical evidence and oral admissions made to the state officer were admissible. However, since the interrogating state officer did not respect appellant's request to cease further inquiry and instead sought additional admissions, the appellant's entire written statement was suppressed. The trial court also ruled that appellant's later oral statements to the Secret Service agent were free from taint, despite the circumstances warranting suppression of the written statement, and were, therefore, admissible at trial.

The case then proceeded to jury selection. During voir dire, appellant began to ask the jurors whether any of them had moral or religious beliefs about the use of alcohol that would make it difficult for them to be fair and impartial, should the issue arise. ⁶ The trial court, in perhaps an excess of caution, intervened before an answer could be given and told the jurors not to answer the question. The court then rephrased the question: "Will you decide the case solely under the evidence and the law without any bias or prejudice one way or another? Regardless or what scruples you might have or not have?" Record, vol. VI, at 39-40. Although appellant did not object to this action, it is cited as error on appeal.

During the trial of the case the precise issue upon which appellant sought voir dire, his intemperance, was brought before the jury. The appellant took the stand and on direct examination he stated that at the time he discovered the nine hundred dollars in counterfeit bills, he was experiencing financial difficulties, resulting in a housing problem for his family, and that he was happy because he could now help one of his children by purchasing medicine for sickle cell anemia. On cross examination the prosecutor sought to impeach the appellant's testimony as to his stated intent to provide for his family with the new-found money based upon his separation from his wife. The court sustained objections to this line of questioning. At that point the prosecution began a new line focusing upon appellant's spending of his weekly paycheck, as well as the counterfeit money, on the consumption of alcohol. The court limited the inquiry to general questions and confined it to the period during which the offenses charged had occurred.

Also during the trial of the case the government introduced into evidence a number of instances of the passing of counterfeit currency at local establishments by the appellant and by those to whom appellant had made gifts of the counterfeit money. ⁷ The trial court either instructed the jury to disregard such evidence, or in some instances allowed the evidence in to show the appellant's knowledge and intent as elements of the offense and as it might bear on the credibility of his oral admissions. The trial court denied all motions for a mistrial.

III.

Whether this warrantless arrest is lawful insofar as it is not violative of the Constitution is determined according to controlling state law, United States v. DiRe, 332 U.S. 581, 583, 589, 68 S.Ct. 222, 223, 226, 92 L.Ed. 210, 214, 217 (1947), based on the particular facts involved in a given situation. When the appellant was arrested, the arresting state officers did not satisfy the requirements of Florida law in order to accomplish a lawful, out-of-jurisdiction, official arrest. Fla.Stat. § 901.25 (1979). However, under the common law Florida does recognize the right of a policeman as a private citizen to make an arrest (1) when a felony is committed in his presence or (2) when a felony has actually been committed and the policeman as a citizen reasonably believes, in good faith, that the person to be arrested has committed the felony. United States v. Brown, 551 F.2d 639, 645 (5th Cir. 1977), rev'd en banc on other grounds, 569 F.2d 236 (5th Cir. 1977); Dorsey v. United States, 174 F.2d 899, 901 (5th Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 479, 94 L.Ed. 586 (1950). See, e. g., McAnnis v. State, 386 So.2d 1230, 1232 (Fla. 3rd D.C.A. 1980); State v. Chapman, 376 So.2d 262, 264 (Fla. 3rd D.C.A. 1979); State v. Shipman, 370 So.2d 1195, 1196 (Fla. 4th D.C.A. 1979); Collins v. State, 143 So.2d 700, 702-03 (2nd D.C.A.), cert. denied, 148 So.2d 280 (Fla. 1962).

If, as here, it is known that a felony had been committed but not in the policeman's presence, then the test for a lawful citizen arrest by a policeman out of jurisdiction is twofold: (1) whether the person making the arrest had reasonable grounds to believe that the person arrested committed the felony and (2) whether the officer making the arrest acted "under color of his office". State v. Chapman, 376 So.2d 262, 264 (Fla. 3rd D.C.A. 1979); State v. Williams, 366 So.2d 135, 136 (Fla. 2nd D.C.A. 1979). Under Florida law passing counterfeit bills and possessing ten or more counterfeit bills knowing them to be counterfeit, with the intent to pass or utter them, are felonies. Fla.Stat. §§ 831.07-08 (1979). The facts of the case amply support both that the arresting state officers had knowledge of the occurrence of these felonies and had reasonable grounds to believe that the appellant had committed these felonies. Therefore, the issue becomes whether the Leesburg Police detectives acted "under color of office" and obviated the legality of the state arrest at the...