U.S. v. Johnson, 77-3808

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 626 F.2d 753
• Docket Number: No. 77-3808,77-3808
• Parties: UNITED STATES of America, Appellee, v. Raymond Eugene JOHNSON, Appellant.
• Decision Date: 02 September 1980

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626 F.2d 753 UNITED STATES of America, Appellee,
v.
Raymond Eugene JOHNSON, Appellant. No. 77-3808. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 10, 1978.
Decided Sept. 2, 1980.

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John F. Walter, Walter, Finestone & Richter, Los Angeles, Cal., for appellant.

Lourdes G. Baird, Los Angeles, Cal., for appellee.

Appeal from the United States District Court For the Central District of California.

Before ANDERSON and HUG, Circuit Judges, and EAST ^*, District Judge.

HUG, Circuit Judge:

Appellant, Raymond Eugene Johnson, was convicted in a jury trial of aiding and abetting the obstruction of correspondence, a violation of 18 U.S.C. § 1703 and 18 U.S.C. § 2. Johnson appeals on the ground that statements made by him on the day of his arrest should have been suppressed for the reason that the arrest was illegal and the statements were products of the illegal arrest and not voluntarily made, and on the further ground that the judge committed error in instructing the jury concerning the voluntariness of appellant's confession. We reverse.

FACTS

On March 30, 1977, Lena Kearney received by mistake in the mail a letter addressed to Elihu Peterson, containing a United States Treasury check payable to Peterson, in the amount of $4,681.00. Kearney discussed the receipt of this check with her sister-in-law, Wynona Powell, and decided to keep the check and attempt to cash it. Powell then phoned a friend, Joe Dodd, to ask him for assistance in cashing the check. On the following day, Dodd arrived at the Kearney residence with Eugene McCardell and Raymond Johnson, the appellant. The three men seated themselves around a coffee table in Kearney's living room and studied the check. Johnson picked up the check and made a telephone call. During this call he discussed the check and the difficulty of cashing the check because of the age of the payee. Johnson then returned after completing the call and stated that he believed he had someone who could assist them in cashing the check. Dodd, Johnson and McCardell then left the Kearney residence and took the check with them.

Special Agent Richard Hemenway of the United States Secret Service commenced investigating this matter. He interrogated Lena Kearney, who told them that appellant Johnson was one of three men who came to her house for the check and participated

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in a general discussion as to how to cash the check. She further stated that Johnson made a telephone call in an attempt to find someone to forge the check. Kearney also identified Johnson from a photo spread as the person who had come to her house. Wynona Powell gave Agent Hemenway appellant Johnson's telephone number, which she stated had been given to her by Dodd as the number at which Dodd could be contacted. Upon checking with the Los Angeles Police Department, Agent Hemenway discovered that Johnson was named in the criminal history files as an associate of Dodd in Dodd's criminal history. Special Agent Hemenway did obtain a warrant for the arrest of Dodd, based on the above and other information obtained through investigation. A warrant for the arrest of Johnson was not obtained.

Special Agent Hemenway and Special Agent William Pickering went to the Johnson house on May 5, 1977, at approximately 6:00 P.M. The agents watched the house for a short period and Agent Pickering saw Johnson's vehicle, with two persons inside, pull up to the driveway of Johnson's house. The two agents then approached the doorway, drew their weapons, pointed them downward and knocked, at first identifying themselves by fictitious names. When Johnson opened the door, Hemenway introduced himself and Pickering as special agents and asked to talk with Johnson. Johnson told the agents to come in. Pickering then stood in the living room with Johnson, while Hemenway looked into the other rooms for other people who might be in the house and present a possible danger to the agents. A woman was discovered during the search and was asked to go into the living room. After Hemenway finished looking into the rooms, which took between 15-30 seconds, he told Pickering that everything was secure. Pickering and Hemenway then returned their weapons to their holsters.

Hemenway then asked Johnson if he would step into the bedroom to talk with him, and Johnson agreed. Before entering the bedroom, Hemenway informed Johnson of his constitutional rights. Johnson responded that he wished to cooperate and then told Hemenway of his involvement in taking the Treasury check. Johnson was then told that he was under arrest. The agents and Johnson left the residence and went to the police station. At the station, Johnson was again advised of his constitutional rights and stated that he understood them. He told Pickering of his involvement with the check while Pickering wrote out the statement. Johnson read the statement, made changes and initialed them. He was placed under oath by Pickering and signed the statement.

Legality of the Arrest

The two special agents testified that they had not intended to effect an arrest at the time they initially entered the residence of appellant Johnson. It was their belief that an arrest had not occurred until after the interview with Johnson. However, whether an arrest has occurred depends upon an objective, not subjective, evaluation of what a person innocent of a crime would have thought of the situation, given all of the factors involved. When an arrest has occurred depends in each case upon an evaluation of all the surrounding circumstances. Primary among these is a determination of whether or not the defendant was free to choose between terminating or continuing the encounter with the law enforcement officers. See Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968); United States v. Sanudo-Perez, 564 F.2d 1288, 1290 (9th Cir. 1978); accord, United States v. Beck, 598 F.2d 497 (9th Cir. 1979).

From a review of all of the circumstances surrounding the encounter between Johnson and the special agents, we find that appellant's arrest occurred as he stood within his home at the doorway of his home and was first confronted by the agents with their guns drawn. The agents then entered the home with their guns still drawn until the search of the home had been concluded. Johnson was held in the living room while the house was searched. One of the agents

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remained with Johnson at all times. It is extremely doubtful that Johnson would have believed that he was free to leave at any time or to request the officers to leave after the initial encounter. A reasonable person, under those circumstances, would have thought that he was under arrest.

We must determine whether, even assuming that probable cause existed, the arrest of Johnson in his doorway without first obtaining a warrant violated his Fourth Amendment rights. A warrantless arrest of an individual in a public place upon probable cause does not violate the Fourth Amendment, even though exigent circumstances may not exist. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the Supreme Court upheld the warrantless arrest of a defendant who was standing within the frame of her doorway as the officers approached and who then retreated into the vestibule of her home where the officers followed and effected the arrest. The Court held that once the defendant was exposed to public view in her doorway, her act of retreating...