U.S. v. Kennedy
| Decision Date | 21 April 1978 |
| Docket Number | No. 77-2276,77-2276 |
| Citation | 573 F.2d 657 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Michael Donald KENNEDY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Juanita J. Brooks (argued), San Diego, Cal., for defendant-appellant.
R. Michael Bruney, Asst. U. S. Atty. (argued and on the brief), Terry J. Knoepp, U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before WRIGHT and CHOY, Circuit Judges, and SOLOMON, District Judge. *
Kennedy appeals from his conviction for transporting and receiving firearms in interstate commerce. 18 U.S.C. §§ 922(g) and (h) and 924(a).
He moved unsuccessfully to suppress a firearm found in his residence by FBI agents executing a search warrant. He argues that the questioning which yielded the information establishing probable cause for the warrant was an overbroad investigatory stop or, alternatively, a custodial interrogation without Miranda warnings. We conclude that the district court erred in denying the motion to suppress, and reverse the convictions.
On February 28, 1977, the San Diego County Health Department Bureau of Records notified FBI Special Agent Durr that a 16-year old male had requested the birth certificates of four deceased persons. Because such information often led to detection and prosecution of state and federal offenses, Durr arranged surveillance.
Durr followed the young man from the Bureau of Records to a parking lot, where Kennedy and another juvenile met him in Kennedy's pickup truck. FBI agents in three vehicles followed them through downtown San Diego. A license check indicated that the plates affixed to the pickup had been issued to a 1973 Datsun, owned by a Tennessee resident. Agents in two cars following Kennedy's truck motioned it to the side of the road.
On Durr's request, Kennedy entered an FBI car. In response to questions he identified The agents then questioned Kennedy about his arrest record and possession of weapons. 1 He said that he had been convicted of bank robbery in Tennessee, was currently on parole, and that his presence in San Diego violated the parole terms. He admitted possession of a rifle that he found in Tennessee and brought with him to San Diego.
the juveniles as runaways and established his ownership of the truck. When asked for identification, he produced his wallet which yielded, aside from his genuine identification, a temporary driver's license under an assumed name. He had obtained it by using the birth certificate of a deceased person, which he also produced. He also carried credit cards under two other names and explained that his son had given him one card and that an unknown woman had given him the other.
The interrogation continued for 45 minutes. The agents gave no Miranda warnings. After local police officers arrived and took custody of the juveniles, the FBI agents told Kennedy he was free to leave.
The agents returned to their office, obtained a search warrant for Kennedy's residence, executed it the next day, and found the firearm that Kennedy sought to suppress.
Kennedy concedes there was "founded suspicion" justifying the initial stop of his vehicle. United States v. Solomon, 528 F.2d 88, 90-91 (9th Cir. 1975); Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966). He argues, however, that the length and scope of the inquiry should have been limited by the circumstances justifying the initial intrusion. We agree. Terry v. Ohio, 392 U.S. 1, 18-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Luckett, 484 F.2d 89, 91 (9th Cir. 1973).
In Lowe v. United States, 407 F.2d 1391, 1394 (9th Cir. 1969), we suggested guidelines for the permissible scope of inquiries in routine traffic stops: officers are entitled to require a driver to identify himself, provide proof of vehicle ownership and, if not satisfied with his responses, ask his destination and business.
Here the discrepancy in vehicle license information and Kennedy's passenger's receipt of the birth certificates of deceased persons justified the initial stop. These circumstances, however, could not justify the extended inquiry into Kennedy's arrest history or possession of weapons. United States v. Luckett, 484 F.2d at 91 ().
The government offers United States v. Richards, 500 F.2d 1025 (9th Cir. 1974), as authority supporting the legality of Kennedy's detention. In Richards, authorities detained for more than an hour two persons about to take off in a private airplane. We found the length of the detention was justified by the agents' attempts to verify the suspects' evasive answers to routine questions.
The government's reliance on Richards, however, is misplaced. We found the lengthy detention justified in Richards because the scope of inquiry was limited to questions of identification and of ownership of the aircraft. Richards may justify the length but not the breadth of inquiry here. 2
Durr testified that information concerning the receipt of birth certificates of deceased persons had led to successful prosecutions for a variety of state and federal offenses. He questioned Kennedy, "fishing" for such a violation. Though the possession of a deceased person's birth certificate may have justified a check for outstanding warrants, it did not justify the probing intrusions in search of some criminal activity.
Kennedy argues that the agents' failure to administer the Miranda warning offended his Fifth Amendment privilege against self-incrimination.
The Supreme Court has declared that "custodial interrogation" is inherently coercive. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Suspects must be informed of their rights to assure they are able to exercise them.
The questioning was initiated by the agents, but the government contends that Kennedy was never "in custody." In Lowe v. United States, we adopted an objective, reasonable man standard for determining whether one is in custody. There we directed the trial court to consider all "circumstances which...
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